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Davenport v. Lockwood Andrews & Newnam Inc.

United States Court of Appeals, Sixth Circuit

April 25, 2017

Tiffany Davenport, et al., Plaintiffs-Appellees,
v.
Lockwood, Andrews & Newnam, Inc., et al., Defendants, Veolia Water North America Operating Services, LLC, Defendant-Appellant.

         Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-12875-John Corbett O'Meara, District Judge.

         ON BRIEF:

          John A. K. Grunert, CAMPBELL, CAMPBELL, EDWARDS & CONROY, P.C., Boston, Massachusetts, Cheryl A. Bush, Michael R. Williams, BUSH SEYFERTH & PAIGE PLLC, Troy, Michigan, for Appellant.

          Emmy L. Levens, COHEN MILSTEIN SELLERS & TOLL PLLC, Washington, D.C., for Appellees.

          Before: NORRIS, BATCHELDER, and GIBBONS, Circuit Judges.

          OPINION

          JULIA SMITH GIBBONS, Circuit Judge.

         This case arises out of defendant Veolia Water North America Operating Services, LLC's ("Veolia") and other defendants' allegedly negligent conduct in connection with the Flint, Michigan water crisis. The sole issue on appeal is the meaning of "other class actions" under the local controversy exception to the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d). The district court found that plaintiffs had met the requirements for the local controversy exception to CAFA and remanded this matter to the Michigan state courts. For the reasons that follow, we reverse the district court's order to remand the case to state court and find that the local controversy exception is inapplicable to this case.

         I.

         This case is one of numerous actions arising from the water crisis in Flint, Michigan. The Flint public water system includes lead pipes. Prior to April 2014, Flint purchased treated water from the City of Detroit. Thereafter, the city began using the Flint River as its water source. The Flint River water was not treated with corrosion-inhibiting chemicals, and this led to a multitude of serious problems with the local water supply. Residents complained that the water was discolored and foul-smelling. There were reports of skin rashes, hair loss, and vomiting after drinking and bathing in the water. And most disturbingly, many children in Flint were found to have high levels of lead in their blood stream. See Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 387 (6th Cir. 2016).

         On July 26, 2016, the plaintiffs filed this putative class action in Genesee County Circuit Court asserting claims for negligence, intentional and negligent infliction of emotional distress, and unjust enrichment. They alleged that the individual plaintiffs and the members of the class have been harmed by exposure to lead from Flint's public water system. The defendants include Veolia and Lockwood, Andrews & Newnam, P.C. ("LAN"), as well as several other entities related to either Veolia or LAN. In 2013, LAN was hired by Flint to advise the city with respect to using the Flint River as its water source. Flint hired Veolia in February 2015 as a water expert to evaluate the city's water-treatment process. The plaintiffs seek damages from Veolia and LAN for the harm they allegedly suffered as a result of the contaminated Flint water.

         Veolia timely removed the case to district court pursuant to CAFA. Veolia asserted that the amount in controversy exceeded $5 million, the putative class comprised at least 100 members, and there was the minimal diversity of citizenship required by CAFA. It also asserted that the local controversy exception did not apply to defeat federal jurisdiction because at least five similar class actions had been filed prior to the filing of this action.

         The plaintiffs moved to remand on the ground that the matter was a local controversy as contemplated by § 1332(d)(4)(A) and thus did not fall within CAFA's jurisdiction. Under the local controversy exception, a district court must decline to exercise CAFA jurisdiction:

(i) over a class action in which-
(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in ...

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