Abraham v. St. Croix Renaissance Group, L.L.L.P. , 719 F.3d 270 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1725
_____________
ELEANOR ABRAHAM, et al.
v.
ST. CROIX RENAISSANCE GROUP, L.L.L.P.,
Appellant
On Appeal from the District Court
of the Virgin Islands
District Court No. 1-12-cv-00011
District Judge: The Honorable Harvey Bartle, III
Argued April 16, 2013
Before: AMBRO, SMITH, and CHAGARES,
Circuit Judges
(Filed: May 17, 2013)
Leah M. Nicholls, Esq. [ARGUED]
Public Justice
1825 K Street, N.W.
Suite 200
Washington, DC 20006
Counsel for Appellees
Carl J. Hartmann, III, Esq. [ARGUED]
Unit L-6
5000 Estate Coakley Bay
Christiansted, St Croix, VI 00820
Joel H. Holt, Esq.
Law Offices of Joel H. Holt
2132 Company Street, Suite 2
Christiansted, VI 00820
Counsel for Appellant
________________
OPINION
________________
SMITH, Circuit Judge.
The St. Croix Renaissance Group, L.L.L.P.
(SCRG) sought leave under the Class Action Fairness
Act (CAFA), 28 U.S.C. § 1453(c)(1), to appeal an order
of the District Court of the Virgin Islands remanding a
civil action to the Superior Court of the Virgin Islands.
2
We granted SCRG’s request. Because we conclude that
the civil action here is not a removable “mass action”
under CAFA, we will affirm the order of the District
Court.
I.
In early 2012, “[m]ore than 500 individual
plaintiffs” sued SCRG in the Superior Court of the Virgin
Islands. On February 2, 2012, SCRG removed the civil
action to the District Court of the Virgin Islands. SCRG,
which was the only named defendant in the action,
asserted that the civil action was a “mass action” under
CAFA, making it removable under 28 U.S.C.
§§ 1332(d)(11)(A) and 1453(b).1 Thereafter, 459
1
CAFA defines a “mass action” as
any civil action (except a civil action within
the scope of section 1711(2)) in which
monetary relief claims of 100 or more
persons are proposed to be tried jointly on
the ground that the plaintiffs’ claims involve
common questions of law or fact, except that
jurisdiction shall exist only over those
plaintiffs whose claims in a mass action
satisfy the jurisdictional amount
requirements under subsection (a).
28 U.S.C. § 1332(d)(11)(B)(i). Section 1711(2) defines
“class action” as any civil action filed under Federal Rule
3
plaintiffs filed a first amended complaint (referred to for
simplicity’s sake as “the complaint”). 2 Most of the 459
of Civil Procedure 23 or a state statute or rule authorizing
a representative action. 28 U.S.C. § 1711(2). Unlike a
class action, a mass action has no representative or absent
members because all plaintiffs in a mass action are
named in the complaint and propose a joint trial of their
claims. A mass action is more akin to an opt-in than it is
to a class action. See, e.g., 29 U.S.C. § 216(b)
(establishing opt-in requirement for Fair Labor Standards
Act claims).
2
We recognize that “[f]or jurisdictional purposes, our
inquiry is limited to examining the case ‘as of the time it
was filed in state court.’” Std. Fire Ins. Co. v. Knowles,
__ U.S. __, 133 S. Ct. 1345, 1349 (2013) (quoting Wis.
Dep’t of Corr. v. Schacht, 524 U.S. 381, 390 (1998)).
This would necessitate reviewing the initial complaint
filed in the Superior Court. That complaint is not in the
record that the parties have submitted. It was, however,
part of the record submitted with the petition for
permission to appeal. Our review indicates that the
allegations of the original complaint are substantively the
same as the first amended complaint. We have not
attempted to further clarify the nature of the amendments
at this late stage for several reasons. First, this is an
expedited appeal under 28 U.S.C. § 1453(c)(2) that must
be resolved within sixty days of the date the notice of
appeal was filed, unless “for good cause shown and in the
4
plaintiffs were citizens of the United States Virgin
Islands. Several plaintiffs, however, were citizens of
various states.
SCRG purchased a former alumina refinery on the
south shore of St. Croix in 2002. The plaintiffs alleged
that “[f]or about thirty years, an alumina refinery located
near thousands of homes on the south shore of the island
of St. Croix was owned and/or operated by a number of
entities.” According to the complaint, the “facility
refined a red ore called bauxite into alumina, creating
enormous mounds of the by-product, bauxite residue, red
mud, or red dust.”
From the beginning of the alumina
refinery’s operations, hazardous materials,
including chlorine, fluoride, TDS,
aluminum, arsenic, molybdenum, selenium,
as well as coal dust and other particulates
were buried in the red mud, and the red mud
was stored outdoors in open piles that at
interests of justice,” an extension of no more than ten
days is granted, id. § 1453(c)(3)(B). Second, it appears
from the record that the amendments to the original
complaint were not substantive in nature and neither
party contends otherwise. Finally, the issue before us is
legal in nature.
5
times were as high as approximately 120
feet and covered up to 190 acres of land.
In addition to these hazardous materials, friable asbestos
was present. All of the substances described were
dispersed by wind and disseminated as a result of
erosion.
According to the plaintiffs, SCRG purchased the
refinery site knowing that the loose bauxite and piles of
red mud “had the propensity for particulate dispersion
when exposed to wind” that would be “inhaled by
[p]laintiffs, deposited onto [p]laintiffs’ persons, and real
and personal properties, and deposited into the cisterns
that are the primary source of potable water for many
[p]laintiffs.” Yet SCRG “did nothing to abate it, and
instead, allowed the series of the continuous transactions
to occur like an ongoing chemical spill.” SCRG “failed
to take proper measures to control those emissions[.]”
With regard to the friable asbestos, the plaintiffs alleged
that SCRG discovered its presence, concealed its
existence, and did nothing to remove it from the
premises. The plaintiffs averred that the improper
maintenance of the facility, inadequate storage and
containment of the various hazardous substances, as well
as failure to remediate the premises, caused them to
sustain physical injuries, mental anguish, pain and
suffering, medical expenses, damage to their property
and possessions, loss of income and the capacity to earn
income, and loss of the enjoyment of life.
6
The plaintiffs asserted six causes of action against
SCRG:
• Count I: Abnormally
Dangerous Condition
• Count II: Public Nuisance
• Count III: Private Nuisance
• Count IV: Intentional
Infliction of Emotional Distress
• Count V: Negligent
Infliction of Emotional Distress
• Count VI: Negligence. 3
In addition to money damages, the plaintiffs sought
injunctive relief to end the ongoing release of hazardous
substances and to remediate the property.
In October of 2012, the plaintiffs moved to remand
their civil action to the Superior Court, claiming that the
District Court lacked federal subject-matter jurisdiction.
The plaintiffs asserted that the removal had been
improper because § 1332(d)(11)(B)(ii)(I) excluded their
action from the definition of “mass action.” This section
of CAFA excludes from “mass action[s]”
3
A seventh count is denominated “Punitive Damages.”
This, however, is not a freestanding cause of action.
7
any civil action in which – (I) all of the
claims in the action arise from an event or
occurrence in the State in which the action
was filed, and that allegedly resulted in
injuries in that State or in States contiguous
to that State. 4
28 U.S.C. § 1332(d)(11)(B)(ii)(I). From the plaintiffs’
perspective, their civil action satisfied the criteria for this
exclusion because “every operative incident occurred in
St. Croix and caused injury and damages to the
[p]laintiffs’ persons and property in St. Croix.” Each
plaintiff’s claim arose “from an event or occurrence in St.
Croix” that happened “at a single location, the alumina
refinery.” In addition, the plaintiffs argued that their civil
action had been improvidently removed because it
qualified as a uniquely local controversy excepted from
removal under § 1332(d)(4)(A) or (B).
SCRG opposed the motion to remand. It argued
that the plaintiffs had interpreted the statute to exclude
from mass actions claims that arise in “one location”
instead of as a result of “an event or occurrence” as set
forth in the statute. 28 U.S.C. § 1332(d)(11)(B)(ii)(I).
SCRG asserted that the exclusion for “an event or
4
Section 1332(e) specifies that the “word ‘States,’ as
used in this section includes the Territories[.]” 28 U.S.C.
§ 1332(e).
8
occurrence” did not apply because it requires a single
incident and the plaintiffs’ complaint alleged that “there
were multiple events and occurrences over many years.”
It emphasized that the exclusion “requires that to avoid
removal there had to have been just ‘an event or
occurrence’—a ‘single’ event or occurrence.”
On December 7, 2012, the District Court granted
the plaintiffs’ motion to remand this action to the
Superior Court of the Virgin Islands. Abraham v. St.
Croix Renaissance Grp., L.L.L.P., No. 12-11, 2012 WL
6098502 (D.V.I. Dec. 7, 2012). The District Court
considered several district court decisions that addressed
whether an action qualified as a mass action. It noted
that the plaintiffs’ complaint alleged “continuing
environmental damage,” and cited a statement from a
Senate Report that the purpose of the “event or
occurrence” exclusion was “‘to allow cases involving
environmental torts such as a chemical spill to remain in
state court.’” Id. at *3 (quoting S. Rep. 109-14, at 44
(2005), reprinted in 2005 U.S.C.C.A.N. 3, 47 (2005)).
The Court reasoned that
[t]he word event . . . is not always confined
to a discrete happening that occurs over a
short time span such as a fire, explosion,
hurricane or chemical spill. For example,
one can speak of the Civil War as a defining
event in American history, even though it
9
took place over a four year period and
involved many battles.
Id. The Court then declared that
an event, as used in CAFA, encompasses a
continuing tort which results in a regular or
continuous release of toxic or hazardous
chemicals, as allegedly is occurring here,
and where there is no superseding
occurrence or significant interruption that
breaks the chain of causation. A very
narrow interpretation of the word event as
advocated by SCRG would undermine the
intent of Congress to allow the state or
territorial courts to adjudicate claims
involving truly localized environmental torts
with localized injuries. We see no reason to
distinguish between a discrete happening,
such as a chemical spill causing immediate
environmental damage, and one of a
continuing nature, such as is at issue here.
The allegations in the amended complaint
clearly fit within the meaning of an event as
found in CAFA.
The plaintiffs’ amended complaint
does not qualify as a mass action under 28
U.S.C.§ 1332(d)(11)(B)(ii)(I) because all the
claims arise from an event or occurrence,
10
that is, the continuous release of toxic
substances from a single facility located in
the Virgin Islands, where the resulting
injuries are confined to the Virgin Islands.
Id. at *3-4.
Under 28 U.S.C. § 1453(c)(1), a party aggrieved
by a district court’s ruling on a motion to remand may
seek permission to appeal if the application is made “not
more than 10 days after entry of the order.” SCRG filed
a timely petition. We granted the petition on March 14,
2013.
II.
The District Court exercised jurisdiction under 28
U.S.C. §§ 1332(d)(11)(A) and 1453(b). We granted
leave to appeal under 28 U.S.C. §§ 1332(d)(11)(A) and
1453(c)(1).
Under CAFA, § 1453(b) provides for the removal
to federal district courts of class actions as defined in
§ 1332(d)(1). 28 U.S.C. § 1453(b). Consistent with
federal practice, once an action has been removed under
CAFA, the plaintiff may move to remand. Id. § 1453(c)
(applying 28 U.S.C. § 1447, which governs procedures
after removal, to removal of class actions). Under
traditional federal practice, an order remanding a case to
11
state court is not reviewable. 28 U.S.C. § 1447(d).
CAFA, however, diverges from traditional federal
practice by providing for discretionary appellate review
of “an order of a district court granting or denying a
motion to remand a class action to the State court from
which it was removed.” 28 U.S.C. § 1453(c)(1)
(emphasis added).
Plaintiffs contend that we lack appellate
jurisdiction under § 1453. They assert that the provision
in CAFA which permits an appeal of a remand order
applies to only “class actions—not mass actions.” They
point out that § 1453 refers to class actions alone and
does not use the term “mass actions.” See 28 U.S.C. §
1453(a) (specifying that for purposes of § 1453, “the
term[] . . . ‘class action’ . . . shall have the meaning[]
given such term[] under section 1332(d)(1)”). According
to plaintiffs, because their civil action does not meet the
definition of a removable class action under § 1332(d)(1),
we lack appellate jurisdiction.
Plaintiffs’ argument fails to acknowledge a critical
“deemer” provision in CAFA. While § 1453 makes only
certain “class actions” removable and does not use the
term “mass action,” § 1332(d)(11)(A) states that “[f]or
purposes of this subsection [(1332(d)] and section 1453,
a mass action shall be deemed to be a class action
removable under paragraphs (2) through (10) if it
otherwise meets the provisions of those paragraphs.” 28
U.S.C. § 1332(d)(11)(A). The plain text of this provision
12
makes § 1453’s treatment of “class actions” equally
applicable to “mass actions.” 28 U.S.C.
§ 1332(d)(11)(A). See Lowery v. Ala. Power Co., 483
F.3d 1184, 1195 (11th Cir. 2007) (noting that the “plain
language” of § 1332(d)(11)(A) “makes it clear that any
‘mass action’ is also considered a ‘class action’ for the
purposes of CAFA’s removal provisions”). And nothing
limits that deeming provision to subsection (b), which
permits removal. Rather, § 1453’s applicability to “mass
actions” includes subsection (c), which establishes our
discretionary appellate jurisdiction over remand orders.
Accordingly, we have appellate jurisdiction under
§ 1453(c)(1).
III.
The issue in this case is one of statutory
interpretation. 5 We must determine the meaning of the
5
We review issues of statutory interpretation de novo.
Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 151 (3d
Cir. 2009). De novo review also applies because whether
the plaintiffs’ civil action fits within the mass-action
exclusion in § 1332(d)(11)(B)(ii)(I) concerns the subject-
matter jurisdiction of the District Court. Id. The District
Court’s application of law to the factual averments of the
complaint is also subject to de novo review. See In re
Sch. Asbestos Litig., 56 F.3d 515, 519 (3d Cir. 1995).
13
phrase “an event or occurrence” as it appears in the mass-
action exclusion. The exclusion provides:
(ii) . . . the term “mass action” shall not
include any civil action in which – (I) all of
the claims in the action arise from an event
or occurrence in the State in which the
action was filed, and that allegedly resulted
in injuries in that State or in States
contiguous to that State[.]”
28 U.S.C. § 1332(d)(11)(B)(ii)(I) (emphasis added). “As
in all statutory construction cases, we begin with the
language of the statute. The first step ‘is to determine
whether the language at issue has a plain and
unambiguous meaning with regard to the particular
dispute in the case.’” Barnhart v. Sigmon Coal Co., 534
U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997)). “When the meaning of
statutory text is plain, our inquiry is at an end.” Roth v.
Norfalco, L.L.C., 651 F.3d 367, 379 (3d Cir. 2011).
If the text is “reasonably susceptible of different
interpretations,” it may be ambiguous. Edwards v. A.H.
Cornell and Son, Inc., 610 F.3d 217, 222 (3d Cir. 2010)
(internal quotation marks and citation omitted). As the
Supreme Court instructed in AT&T Mobility, L.L.C. v.
Concepcion, __ U.S. __, 131 S. Ct. 1740 (2011), when a
statute appears to be ambiguous, we must
14
look to other portions of the [Act because
s]tatutory interpretation focuses on “the
language itself, the specific context in which
that language is used, and the broader
context of the statute as a whole.” Robinson
v. Shell Oil Co., 519 U.S. 337, 341 (1997).
“A provision that may seem ambiguous in
isolation is often clarified by the remainder
of the statutory scheme . . . because only one
of the permissible meanings produces a
substantive effect that is compatible with the
rest of the law.” United Sav. Assn. of Tex. v.
Timbers of Inwood Forest Assocs., Ltd., 484
U.S. 365, 371 (1988).
AT&T Mobility, 131 S. Ct. at 1754. Only if we conclude
that a statute is ambiguous, after consideration of the
statutory scheme, may we then consider the legislative
history or other extrinsic material—and then, only if it
“shed[s] a reliable light on the enacting Legislature’s
understanding of otherwise ambiguous terms.” Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568
(2005) (emphasis added).
SCRG relies heavily on the article “an,” which
precedes “event or occurrence,” and the singular nature
of that article. In SCRG’s view, this “an” before “event
or occurrence” means that the exclusion is not applicable
if the complaint alleges injuries that are not the result of a
single, discrete incident. In SCRG’s view, this means
15
that the exclusion does not apply to the plaintiffs’ claims,
which are based on a series of incidents resulting in their
continued exposure to the hazardous substances. These
incidents include the erosion of the red mud containing
the various hazardous substances, the dispersion by wind
of the same, and the improper storage of and the failure
to remove all of these substances from the premises.
SCRG’s argument is not completely devoid of
merit. Its contention that this statutory language refers to
a single incident is semantically consistent with
Congress’s decision to use the singular form of the words
“event” or “occurrence” in the exclusion. See Dunn v.
Endoscopy Ctr. of S. Nev., No. 2:11-CV-560, 2011 WL
5509004, at *2 (D. Nev. Nov. 7, 2011) (noting that the
statute did not state “events and occurrences,” and that
the “use of the singular in the statutory language is
important and sufficient”).
But SCRG’s reliance on the article “an” does not
end the inquiry. We must determine what the phrase
“event or occurrence” means. “In the absence of a
statutory definition” in the CAFA, we are bound to give
the words used their “‘ordinary meaning.’” United States
v. Diallo, 575 F.3d 252, 256-57 (3d Cir. 2009) (quoting
Moskal v. United States, 498 U.S. 103, 108 (1990)
(omitting internal quotation marks and citation)); see also
Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187
(1995) (“When terms used in a statute are undefined, we
give them their ordinary meaning.”); FDIC v. Meyer, 510
16
U.S. 471, 476 (1994) (“In the absence of such a
definition, we construe the statutory term in accordance
with its ordinary or natural meaning.”). In common
parlance, neither the term “event” nor “occurrence” is
used solely to refer to a specific incident that can be
definitively limited to an ascertainable period of minutes,
hours, or days. 6
As the District Court explained, the “word event in
our view is not always confined to a discrete happening
that occurs over a short time span such as a fire,
explosion, hurricane, or chemical spill. For example, one
can speak of the Civil War as a defining event in
6
The word “event” is defined, inter alia, as “something
that takes place, especially a significant occurrence.”
The American Heritage Dictionary of the English
Language 615 (5th ed. 2011). See also Merriam-
Webster’s Collegiate Dictionary 433 (11th ed. 2003)
(including among its definitions of “event” “something
that happens,” “occurrence,” and “a noteworthy
happening”). The definition of “occurrence,” not
surprisingly, is “the action, fact, or instance of occurring .
. . ‘something that takes place; an event or incident.” The
American Heritage Dictionary of the English Language
1219 (5th ed. 2011); Merriam-Webster’s Collegiate
Dictionary 858 (11th ed. 2003 (defining “occurrence” as
“something that occurs . . . the action or instance of
occurring”)).
17
American history, even though it took place over a four-
year period and involved many battles.” Abraham, 2012
WL 6098502, at * 3. The Court’s construction of the
word is consistent with the word’s common usage.
Important events in history are not always limited to
discrete incidents that happened at a specific and precise
moment in time.
As further support for this construction, we note
that the plain text of the exclusion and the statutory
scheme do not delimit the words “event or occurrence” to
a specific incident with a fixed duration of time. Because
the words “event” and “occurrence” do not commonly or
necessarily refer in every instance to what transpired at
an isolated moment in time, there is no reason for us to
conclude that Congress intended to limit the phrase
“event or occurrence” in § 1332(d)(11)(B)(ii)(I) in this
fashion. Accordingly, where the record demonstrates
circumstances that share some commonality and persist
over a period of time, these can constitute “an event or
occurrence” for purposes of the exclusion in §
1332(d)(11)(B)(ii)(I).
In short, treating a continuing set of circumstances
collectively as an “event or occurrence” for purposes of
the mass-action exclusion is consistent with the ordinary
usage of these words, which do not necessarily have a
temporal limitation. Giving the words “event” or
“occurrence” their ordinary meaning is not at odds with
the purpose of the statutory scheme of CAFA. Congress
18
clearly contemplated that some mass actions are better
suited to adjudication by the state courts in which they
originated. This intent is evident in both the “event or
occurrence” exclusion for mass actions, as well as the
local-controversy and home-state exceptions in
§ 1332(d)(4)(A) and (B) for class actions. See Kaufman
v. Allstate N.J. Ins. Co., 561 F.3d 144, 149 (3d Cir. 2009)
(referring to § 1332(d)(4)(A) as the “local controversy
exception” and subsection (B) as the “home-state”
exception). These provisions assure that aggregate
actions with substantial ties to a particular state remain in
the courts of that state.
The local-controversy and home-state exceptions
for class actions in § 1332(d)(4) and the “event or
occurrence” exclusion for mass actions, however, are
different creatures entirely. Indeed, in light of the
statutory structure of CAFA, the exceptions and the
exclusion have to be different because a “mass action,” to
be removable, must meet the provisions of § 1332(d)(2)
through (10). 28 U.S.C. § 1332(d)(11)(A). This means
that to be removable a mass action must present
something other than a uniquely local controversy that
may not be removed under either the local-controversy or
home-state exception in § 1332(d)(4)(A) and (B),
respectively. If the mass action complaint pleads neither
a local-controversy nor a home-state cause of action
under subsection (d)(4), it may be removed unless the
19
“event or occurrence” exclusion in subsection
(d)(11)(B)(ii)(I) applies.
It is notable that the local-controversy exception
contains broad language instructing a district court to
decline to exercise jurisdiction where the “principal
injuries resulting from the alleged conduct or any related
conduct . . . were incurred in the State in which the action
was originally filed.” 28 U.S.C. § 1332(d)(4)(A)(i)(III)
(emphasis added). The use of this broad language in the
local-controversy exception for class actions and not in
the mass-action exclusion might suggest that Congress
intended to limit the mass-action exclusion to claims
arising from a discrete incident. See Duncan v. Walker,
533 U.S. 167, 173 (2001) (observing that “where
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion”
(internal quotation marks and citations omitted)).
Because the local-controversy class action exception and
the “event or occurrence” exclusion for mass actions are
not the same, the broad language in the local-controversy
exception in § 1332(d)(4)(A) for class actions does not
control our interpretation of the phrase “event or
occurrence” in the mass-action exclusion in §
1332(d)(11)(B)(ii)(I). Consequently, the statutory
scheme of CAFA does not require limiting the
20
construction of “event or occurrence” to something that
happened at a discrete moment in time.
We conclude that the District Court did not err in
its interpretation of the “event or occurrence” exclusion
in § 1332(d)(11)(B)(ii)(I). Our broad reading of the
words “event” and “occurrence” is consistent with their
ordinary usage. 7 Further, such a reading does not thwart
Congress’s intent, which recognized that some aggregate
actions are inherently local in nature and better suited to
adjudication by a State court. Accordingly, there is no
reason to consider the legislative history of the CAFA to
interpret the phrase “event or occurrence” in the mass-
action exclusion. Morgan v. Gay, 471 F.3d 469, 473 (3d
7
The ordinary meaning of the words “event” and
“occurrence” do not easily lend themselves to fashioning
a precise definition that can be applied to all litigation
under CAFA. It is sufficient for purposes of this appeal
to determine that the phrase “event or occurrence” in the
exclusion is not as temporally limited as SCRG contends.
We note, however, that the exclusion contains other
limitations, demanding a commonality of the claims and
requiring a substantial link with the forum state. 28
U.S.C. § 1332(d)(11)(B)(ii)(I) (providing that (1) “all” of
the claims must arise from the event; (2) the event must
happen in the state in which the action was filed; and (3)
the plaintiffs’ injuries must have “allegedly resulted . . .
in that state”).
21
Cir. 2006) (noting that we “need not look to legislative
history at all when the text of the statute is
unambiguous”). 8
In light of our determination that the words
“event” or “occurrence” in § 1332(d)(11)(B)(ii)(I) should
be given their ordinary meaning, we turn to whether the
plaintiffs’ complaint falls within this exclusion for mass
actions. 9 We conclude that the complaint sufficiently
8
Although we need not consider legislative history, we
doubt that the Senate Report would aid us in any way in
interpreting this exclusion in CAFA. The Senate Report
was issued after CAFA was enacted. See Bruesewitz v.
Wyeth, L.L.C., __ U.S. __ 131 S. Ct. 1068, 1081 (2011)
(noting that “[p]ost-enactment legislative history (a
contradiction in terms) is not a legitimate tool of statutory
interpretation”). In addition, because either party in this
controversy can cite the Senate Report as authority for
their respective interpretations, the Senate Report sheds
little light on Congress’s true intent. See Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)
(cautioning that legislative history has a role in statutory
interpretation only if it “shed[s] a reliable light on the
enacting Legislature’s understanding of otherwise
ambiguous terms,” and instructing that legislative history
is not a reliable source if it is contradictory).
9
We recognize that the District Court concluded that the
word “event” in § 1332(d)(11)(B)(ii)(I) included the
22
alleges that all of the plaintiffs’ claims arise from “an
event or occurrence” in the Virgin Islands where the
action was filed and that allegedly resulted in injuries
there.
“continuous release of toxic or hazardous chemicals, as
allegedly is occurring here, and where there is no
superseding occurrence.” Abraham, 2012 WL 6098502,
at *3 (emphasis added). In Allen v. Monsanto Co., No.
3:09cv471, 2010 WL 8752873, at *10 (N.D. Fla. Feb. 1,
2010), the District Court used the term “interceding” in
its analysis of whether the circumstances constituted “an
event or occurrence” for purposes of the exclusion in
§ 1332(d)(11)(B)(ii)(I). Id. (emphasis added). It is clear
from the text and structure of the CAFA that Congress
drafted the statute with an awareness of the various types
of aggregate action, including class actions, mass actions,
and mass torts. See generally 28 U.S.C. § 1332(d)(11)
(defining “class action” for purposes of diversity
jurisdiction); id. § 1332(d)(11) (establishing the “mass
action” as a non-class aggregate action and distinguishing
it from mass tort actions that may be the subject of
multidistrict litigation under 28 U.S.C. § 1407). Yet
Congress neither used the word “tort” in the mass action
exclusion nor the terms “interceding” or “superseding.”
Because giving the terms in the exclusion their ordinary
meaning does not create a result that is at odds with
Congress’s intent to keep some actions in state court, we
see no reason to utilize these terms of art in our analysis.
23
The complaint alleges circumstances that persisted
over a fixed period of time–specifically, from 2002,
when SCRG acquired the former alumina refinery, to the
present. These circumstances included: (1) the presence
throughout the former refinery site of the red mud and
the various hazardous substances that were buried
therein; (2) the plaintiffs’ continual exposure to the red
mud and its particulates as a result of erosion by wind
and water; and (3) the persistent failure of SCRG to
contain or abate the hazardous substances and to
remediate the premises. In short, the condition of the site
during the period of SCRG’s ownership provided a
source for the ongoing emission of the red mud and the
hazardous substances and the subsequent dispersion onto
the plaintiffs’ persons and their property. We believe
that these circumstances, which the District Court
characterized as the “continuous release of toxic
substances from a single facility located in the Virgin
Islands,” constituted “an event or occurrence” for
purposes of the mass-action exclusion. Abraham, 2012
WL 6098502, at *4.
We recognize that multiple substances are alleged
to have emanated from SCRG’s site. But the complaint
does not allow us to isolate a specific substance and trace
it to a particular course of action taken by SCRG at a
precise point in time. Instead, the complaint alleges that
the red mud containing the various hazardous substances
was present throughout the site. There are no averments
24
that SCRG removed any of the hazardous substances and
thereby heightened the risk of exposure to any particular
substance. Nor are there any allegations that SCRG
engaged in any manufacturing at the site to increase the
emission of any particular substance. There is simply the
ongoing emission from the site of the red mud and its
hazardous substances. Because we cannot identify
separate and discrete incidents causing the emission of
the various substances at any precise point in time, we
reject SCRG’s argument that the plaintiffs’ claims arose
from multiple events or occurrences. 10
We agree with the District Court that the complaint
was not a removable mass action because “all of the
claims in the action arose from an event or occurrence”
that happened in the Virgin Islands and that resulted in
injuries in the Virgin Islands. Accordingly, the District
10
In addition to the dispersion of red mud, plaintiffs have
also alleged that SCRG has failed to prevent the
dispersion of friable asbestos. Though these are two
distinct hazardous substances, we do not believe this
should alter the result. Plaintiffs allege that both
substances were present on the same site and have been
released into the environment due to SCRG’s neglect of
that site. This commonality is enough for the release of
the two substances to constitute “an event or occurrence”
under the statute.
25
Court appropriately remanded the plaintiffs’ action to the
Superior Court of the Virgin Islands.11
IV.
In sum, we agree with SCRG that the statute
excludes from mass actions those civil actions in which
all of the claims arise from a single event or occurrence
in the state where the action was filed. But the ordinary
meaning of the words “event” and “occurrence” is not
always limited to something that happened at a particular
moment in time. Indeed, “event” and “occurrence” admit
of temporal flexibility. For this reason, we find no error
in the District Court’s conclusion that the “continuous
release” of hazardous substances from SCRG’s premises
constituted “an event or occurrence” for purposes of the
mass-action exclusion in § 1332(d)(11)(B)(ii)(I). We
will affirm the District Court’s order granting the motion
to remand.12
11
Because plaintiffs’ complaint meets the criteria of the
“event or occurrence” exclusion in
§ 1332(d)(11)(B)(ii)(I), we need not resolve whether the
District Court erred by denying their request for
discovery regarding SCRG’s citizenship.
12
CAFA requires a court of appeals to “complete all
action” on an appeal, “including rendering judgment not
later than 60 days after the date on which such appeal
was filed.” 28 U.S.C. § 1453(c)(2). This means that
26
judgment must be filed no later than May 13, 2013.
“[F]or good cause shown and in the interests of justice,”
we may extend this filing date for ten days. Id.
§ 1453(c)(3)(B). Because compliance with the 60 day
deadline would result in an abbreviated circulation period
for this precedential opinion, see Third Circuit I.O.P.
§ 5.6, we conclude that good cause exists for an
extension and that the ten-day extension is in the interest
of justice.
27