Case: 5:16-cv-10663 As of: 10/17/2019 10:56 AM EDT 1 of 7
CLOSED,reassigned
U.S. District Court Eastern District of Michigan (Ann Arbor) CIVIL DOCKET FOR CASE #: 5:16−cv−10663−JCO−MKM

Mason et al v. Lockwood, Andrews & Newnam, P.C. et al Assigned to: District Judge John Corbett O'Meara Referred to: Magistrate Judge Mona K. Majzoub Demand: $9,999,000 Case in other court: Genesee County Circuit Court,
16−106150−NM
U.S. Court of Appeals − Sixth Circuit, 16−02313 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 02/23/2016 Date Terminated: 05/11/2016 Jury Demand: Plaintiff Nature of Suit: 360 P.I.: Other Jurisdiction: Federal Question

Jennifer Mason

represented by John T. Peters , Jr. McAlpine PC 3201 University Dr., Suite 100 Auburn Hills, MI 48326 248−373−3700 Email: tpeters@mcalpinepc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark L. McAlpine McAlpine & McAlpine 3201 University Drive Suite 100 Auburn Hills, MI 48326−2361 248−373−3700 Email: mlmcalpine@mcalpinepc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam T. Schnatz McAlpine PC 3201 University Drive Suite 100 Auburn Hills, MI 48326 248−373−3700 Fax: 248−373−3708 Email: atschnatz@mcalpinepc.com ATTORNEY TO BE NOTICED

David J. Shea Shea Aiello, PLLC 26100 American Drive Second Floor Southfield, MI 48034 248−354−0224 Email: david.shea@sadplaw.com ATTORNEY TO BE NOTICED

Jayson E. Blake McAlpine PC 3201 University Dr. Suite 100 Auburn Hills, MI 48326 2483733700 Email: jeblake@mcalpinepc.com ATTORNEY TO BE NOTICED

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Plaintiff Carl Rogers, II
Plaintiff Teresa Springer
Plaintiff Jeffrey Dushane

represented by John T. Peters , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark L. McAlpine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam T. Schnatz (See above for address) ATTORNEY TO BE NOTICED
David J. Shea (See above for address) ATTORNEY TO BE NOTICED
Jayson E. Blake (See above for address) ATTORNEY TO BE NOTICED
represented by John T. Peters , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark L. McAlpine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam T. Schnatz (See above for address) ATTORNEY TO BE NOTICED
David J. Shea (See above for address) ATTORNEY TO BE NOTICED
Jayson E. Blake (See above for address) ATTORNEY TO BE NOTICED
represented by John T. Peters , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark L. McAlpine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam T. Schnatz (See above for address) ATTORNEY TO BE NOTICED
David J. Shea

Case: 5:16-cv-10663 As of: 10/17/2019 10:56 AM EDT 3 of 7

(See above for address) ATTORNEY TO BE NOTICED

Jayson E. Blake (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Deborah Culver

represented by John T. Peters , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark L. McAlpine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam T. Schnatz (See above for address) ATTORNEY TO BE NOTICED

David J. Shea (See above for address) ATTORNEY TO BE NOTICED

Jayson E. Blake (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Tristin Hassell, Dr.

represented by John T. Peters , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark L. McAlpine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam T. Schnatz (See above for address) ATTORNEY TO BE NOTICED

David J. Shea (See above for address) ATTORNEY TO BE NOTICED

Jayson E. Blake (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Adam Dill

represented by John T. Peters , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark L. McAlpine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:16-cv-10663 As of: 10/17/2019 10:56 AM EDT 4 of 7

Plaintiff David Yeoman

Adam T. Schnatz (See above for address) ATTORNEY TO BE NOTICED
David J. Shea (See above for address) ATTORNEY TO BE NOTICED
Jayson E. Blake (See above for address) ATTORNEY TO BE NOTICED
represented by John T. Peters , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark L. McAlpine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam T. Schnatz (See above for address) ATTORNEY TO BE NOTICED
David J. Shea (See above for address) ATTORNEY TO BE NOTICED
Jayson E. Blake (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Lockwood, Andrews & Newnam, P.C.

represented by David C. Kent Drinker Biddle Reath LLP 1717 Main St. Suite 5400 Dallas, TX 75201 469−356−2535 Fax: 469−357−0860 Email: david.kent@dbr.com ATTORNEY TO BE NOTICED
Philip A. Erickson Plunkett & Cooney 325 E. Grand River Avenue Suite 250 East Lansing, MI 48823 517−324−5608 Email: perickson@plunkettcooney.com ATTORNEY TO BE NOTICED
Robert G. Kamenec Plunkett & Cooney 38505 Woodward Avenue Suite 2000 Bloomfield Hills, MI 48304−5097

Case: 5:16-cv-10663 As of: 10/17/2019 10:56 AM EDT 5 of 7

248−901−4000 Email: rkamenec@plunkettcooney.com ATTORNEY TO BE NOTICED

Defendant Lockwood, Andrews & Newnam, Inc.

represented by David C. Kent (See above for address) ATTORNEY TO BE NOTICED

Philip A. Erickson (See above for address) ATTORNEY TO BE NOTICED

Robert G. Kamenec (See above for address) ATTORNEY TO BE NOTICED

Defendant Leo A. Daly Company

represented by David C. Kent (See above for address) ATTORNEY TO BE NOTICED

Robert G. Kamenec (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/23/2016
02/24/2016
03/01/2016 03/01/2016 03/01/2016 03/07/2016 03/07/2016
03/18/2016 03/18/2016

# Docket Text
1 NOTICE OF REMOVAL by Lockwood, Andrews & Newnam, Inc. from Genesee, case number 16−106150−NM. Receipt No: 0645−5568755 − Fee: &#036 400 [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Exhibit A − Summons; Complaint; First Amended Complaint) (Kamenec, Robert) (Entered: 02/23/2016)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DWor) (Entered: 02/24/2016)
2 NOTICE of Appearance by Mark L. McAlpine on behalf of All Plaintiffs. (McAlpine, Mark) (Entered: 03/01/2016)
3 NOTICE of Appearance by Adam T. Schnatz on behalf of All Plaintiffs. (Schnatz, Adam) (Entered: 03/01/2016)
4 MOTION for More Definite Statement by Lockwood, Andrews & Newnam, Inc., Lockwood, Andrews & Newnam, P.C.. (Attachments: # 1 Exhibit A. Unpublished Cases) (Kamenec, Robert) (Entered: 03/01/2016)
5 NOTICE of Appearance by Philip A. Erickson on behalf of Lockwood, Andrews & Newnam, Inc., Lockwood, Andrews & Newnam, P.C.. (Erickson, Philip) (Entered: 03/07/2016)
6 ORDER REASSIGNING CASE from District Judge Marianne O. Battani and Magistrate Judge Elizabeth A. Stafford in Detroit to District Judge John Corbett O'Meara and Magistrate Judge Mona K. Majzoub in Ann Arbor. (SSch) (Entered: 03/07/2016)
7 RESPONSE to 4 MOTION for More Definite Statement filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 − FAC, # 2 Exhibit 2− LAN Statement, # 3 Exhibit 3− Unpublished Case Law) (McAlpine, Mark) (Entered: 03/18/2016)
8 RESPONSE to 4 MOTION for More Definite Statement Corrected Version filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (McAlpine, Mark) (Entered: 03/18/2016)

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03/21/2016 03/24/2016 03/25/2016 03/28/2016 04/05/2016 04/11/2016
04/12/2016 04/12/2016 04/14/2016 04/21/2016 04/22/2016 05/02/2016 05/02/2016 05/03/2016 05/11/2016 05/11/2016 09/20/2016 09/21/2016

9 MOTION to Dismiss by Leo A. Daly Company. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Unpublished Cases, # 3 Exhibit B − Affidavit of Edward Benes) (Kamenec, Robert) (Entered: 03/21/2016)
10 MOTION to Remand by All Plaintiffs. (Attachments: # 1 Exhibit 1− FAC, # 2 Exhibit 2− Browne v. LAN − Order to Show Cause, # 3 Exhibit 3 − Unpublished Cases) (McAlpine, Mark) (Entered: 03/24/2016)
11 NOTICE of Appearance by David C. Kent on behalf of Leo A. Daly Company, Lockwood, Andrews & Newnam, Inc., Lockwood, Andrews & Newnam, P.C.. (Kent, David) (Entered: 03/25/2016)
12 REPLY to Response re 4 MOTION for More Definite Statement filed by All Defendants. (Kent, David) (Entered: 03/28/2016)
13 MOTION to Expedite Hearing or Immediate Consideration of Its Motion to Remand by All Plaintiffs. (McAlpine, Mark) (Entered: 04/05/2016)
14 RESPONSE to 10 MOTION to Remand filed by Lockwood, Andrews & Newnam, Inc.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Mason First Amended CVlass Action Complaint, # 3 Exhibit Contract Documents, # 4 Exhibit 40 C.F.R. Section 141.81, # 5 Exhibit Boler v Earley, State Defendants' Response in Opposition to Plaintiffs' Motion for Preliminary Injunction Against Defendant City of Flint, # 6 Exhibit Guidance Memordum from Peter Grevatt, dated November 3, 2015, # 7 Exhibit McMillian v Snyder Complaint, # 8 Exhibit McIntosh v Michigan Complaint, # 9 Exhibit Motion to Consolidate, Mays v Snyder, et al. (Gilcreast Plaintiffs), # 10 Exhibit Motion to Consolidate, Mays v Snyder, et al. (Mays Plaintiffs), # 11 Exhibit Unpublished Cases) (Kamenec, Robert) (Entered: 04/11/2016)
15 NOTICE of Appearance by Jayson E. Blake on behalf of All Plaintiffs. (Blake, Jayson) (Entered: 04/12/2016)
16 NOTICE by All Plaintiffs Notice of Motion to Consolidate (Attachments: # 1 Exhibit) (Shea, David) (Entered: 04/12/2016)
17 RESPONSE to 9 MOTION to Dismiss filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H) (McAlpine, Mark) (Entered: 04/14/2016)
18 REPLY to Response re 10 MOTION to Remand filed by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1) (McAlpine, Mark) (Entered: 04/21/2016)
19 RESPONSE to 13 MOTION to Expedite Hearing or Immediate Consideration of Its Motion to Remand filed by Lockwood, Andrews & Newnam, Inc.. (Attachments: # 1 Exhibit) (Kent, David) (Entered: 04/22/2016)
20 REPLY to Response re 13 MOTION to Expedite Hearing or Immediate Consideration of Its Motion to Remand filed by All Plaintiffs. (Attachments: # 1 Exhibit 1) (McAlpine, Mark) (Entered: 05/02/2016)
21 REPLY to Response re 9 MOTION to Dismiss filed by Leo A. Daly Company. (Attachments: # 1 Exhibit Case law) (Kamenec, Robert) (Entered: 05/02/2016)
22 Notice of E−mail Delivery Failure as to attorney David J. Shea. Bounced NEF for 20 Reply to Response to Motion, 21 Reply to Response to Motion. (SSch) (Entered: 05/03/2016)
23 OPINION AND ORDER REMANDING CASE to Genesee County Circuit Court. Signed by District Judge John Corbett O'Meara. (DPer) (Entered: 05/11/2016)
24 NOTICE remanding case to *GENESEE COUNTY CIRCUIT COURT*. (DPer) (Entered: 05/11/2016)
25 ORDER from U.S. Court of Appeals − Sixth Circuit [Appeal Case Number 16−102] (Ahmed, N) (Entered: 09/20/2016)
Appeal Fee received for 25 Appeal Order/Opinion/Judgment in the amount of $ 505.00 − Receipt No. DET096261. (Huff, W.) (Entered: 09/21/2016)

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11/16/2016 12/08/2016 03/14/2017 06/16/2017

26 OPINION and JUDGMENT from U.S. Court of Appeals − Sixth Circuit [Appeal Case Number 16−2313] (Ahmed, N) (Entered: 11/16/2016)
27 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 26 Appeal Order/Opinion/Judgment [Appeal Case Number 16−2313] (Ahmed, N) (Entered: 12/12/2016)
28 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on 3/9/2017. [Supreme Court Case Number: 16−1092] [Court of Appeals Case Number: 16−2313] (Ahmed, N) (Entered: 03/14/2017)
29 LETTER from the US Supreme Court denying the petition for writ of certiorari [Supreme Court Case Number: 16−1092] [Court of Appeals Case Number: 16−2313] (Ahmed, N) (Entered: 06/19/2017)

 
 5:16-cv-10663-JCO-MKM Doc # 23 Filed 05/11/16 Pg 1 of 12 Pg ID 1458

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JENNIFER MASON, et al.,

Plaintiffs,
v.
LOCKWOOD, ANDREWS & NEWNAM, P.C., a Michigan corporation, LOCKWOOD, ANDREWS & NEWNAM, Inc., a Texas corporation, and LEO A. DALY COMPANY, a Nebraska corporation,

Case No. 16-10663 Hon. John Corbett O’Meara

Defendants. ________________________________/

OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND

Before the court is Plaintiffs’ motion to remand, filed March 24, 2016, and

which has been fully briefed. For the reasons explained below, Plaintiffs’ motion

is granted.

BACKGROUND FACTS

This case is one of many arising out of the water crisis in Flint, Michigan.

The city, under state emergency management, switched its drinking water source in

April 2014 from Lake Huron (via the Detroit Water and Sewerage Department) to

the Flint River in an effort to save money. Plaintiffs allege that the Flint River

5:16-cv-10663-JCO-MKM Doc # 23 Filed 05/11/16 Pg 2 of 12 Pg ID 1459
water was not properly treated with anti-corrosive chemicals, leading to the corrosion of lead pipes and the leaching of lead and other contaminants into the drinking water of Flint residents. The named Plaintiffs “at all relevant times, were residents of Flint, who as individuals, parents of minors and as property owners, have been and continue to be exposed to highly dangerous conditions created and caused by Defendants’ negligent administration of a plan to place the Flint Water Treatment Plaint (“FWTP”) into full-time operation for drawing water from the Flint River.” Compl. at ¶2. Defendants are engineering firms that contracted with the City of Flint to design and implement the new water treatment system.
LAW AND ANALYSIS Plaintiffs filed this action in Genesee County Circuit Court, alleging a single count of professional negligence. Defendants removed it to this court on February 23, 2016, based on two grounds: substantial federal question jurisdiction and the Class Action Fairness Act. Plaintiffs argues that jurisdiction is lacking and that the court should remand the case to state court. I. Substantial Federal Question Jurisdiction In similar Flint water cases against Lockwood, the court determined that the plaintiffs’ negligence claims did not involve a substantial federal question and that the court lacked subject matter jurisdiction. See, e.g., Bell v. Lockwood, Andrews
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& Newnam, Case No. 16-10825 (E.D. Mich.), Docket No. 17. In this respect, this case is indistinguishable from Bell. Accordingly, for the reasons stated in Bell, the court finds that Plaintiffs’ professional negligence claim against Defendants does not implicate a substantial federal question. See id. II. Class Action Fairness Act
The remaining potential basis for jurisdiction is the Class Action Fairness Act (“CAFA”), which expands federal court jurisdiction over certain class actions. The act provides:
(2) The district court shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which –
(A) any member of a class of plaintiffs is a citizen of a State different from any defendant; * * * 28 U.S.C. § 1332(d)(2). The parties do not dispute that these requirements are met here, when the aggregate amount in controversy exceeds $5,000,000 and there is minimal diversity of citizenship between the parties. See 28 U.S.C. § 1332(d)(6) (“claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds the sum or value of $5,000,000"). Plaintiffs contend that the “local controversy exception” to the CAFA
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applies and that the court must decline to exercise jurisdiction. According to the
statute:
(4) A district court shall decline to exercise jurisdiction under paragraph (2) –
(A)(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 which the action was originally filed; (II) at least 1 defendant is a defendant – (aa) from whom significant relief is sought by members of the plaintiff class; (bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and (cc) who is a citizen of the State in which the action was originally filed; and (III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and
(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons; . . . .
28 U.S.C. § 1332(d)(4).
CAFA’s “primary objective” is to “ensur[e] Federal court consideration of
interstate cases of national importance.” Standard Fire Ins. Co. v. Knowles, 133
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S.Ct. 1345, 1350 (2013). The local controversy exception
is intended to respond to concerns that class actions with a truly local focus should not be moved to federal court under this legislation because state courts have a strong interest in adjudicating such disputes. At the same time, this is a narrow exception that was carefully drafted to ensure that it does not become a jurisdictional loophole. Thus, the Committee wishes to stress that in assessing whether each of these criteria is satisfied by a particular case, a federal court should bear in mind that the purpose of each of these criteria is to identify a truly local controversy that uniquely affects a particular locality to the exclusion of all others.
S. REP. 109-14, 39, 2005 U.S.C.C.A.N. 3, 38. As discussed below, the court finds
this case is precisely the type of local controversy to which the exception was
intended to apply.
A. Citizenship of Proposed Class
In order to meet the first requirement of the local controversy exception,
Plaintiffs must show that more than two-thirds of the proposed class are citizens of
Michigan. The complaint alleges that the named plaintiffs are residents of and
property owners in Flint, Michigan. Compl. at ¶¶ 1, 2, 5. The complaint contends
that the “residents of the City of Flint (“Flint”), from April 25, 2014 to the present,
have experienced and will continue to experience serious personal injury and
property damage.” Id. at ¶ 1. See also Compl. at ¶ 64 (“LAN owed a duty to
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Plaintiffs, as residents and property owners in the City of Flint. . . .”). Although residency is not synonymous with citizenship, “[e]vidence of a
persons place of residence . . . is prima facie proof of his domicile.” Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011). “The place where an individual resides is properly taken to be his domicile, absent a showing to the contrary.” Novel v. Zapor, 2013 WL 1183331 at *5 (S.D. Ohio Mar. 21, 2013) (citing District of Colombia v. Murphy, 314 U.S. 441, 445 (1914)). See also Fort Knox Transit v. Humphrey, 151 F.2d 602, 602-603 (6th Cir. 1945) (“[U]pon the whole record and in the absence of any challenge to the jurisdiction, the plaintiff's residence in Ohio is prima facie evidence of his citizenship in that state.”).
Although the class Plaintiffs seek to represent is not expressly limited to Michigan citizens, Plaintiffs are Flint residents and property owners who seek to represent those similarly situated. See Hollinger, 654 F.3d at 573 (“[C]ourts have acknowledged that where a proposed class is discrete in nature, a common sense presumption should be utilized in determining whether citizenship requirements have been met.”); Caruso v. Allstate Ins. Co., 469 F. Supp. 2d 364, 368 (E.D. La. 2007) (“Although there well may be proposed classes where detailed proof of the two-thirds citizenship requirement is required, the Court finds that common sense should prevail in this closed-end class involving people who, as noted, hold an
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asset that is a measure of domicile, their home.”); Eagles Nest LLC v. Moy Toy, LLC, 2014 WL 4655277 at *5 (M.D. Tenn. Sept. 16, 2014) (“This case involves a defined class of Tennessee property owners, and an indicia of domicile is property ownership.”).
Further, the proposed class is comprised of Flint residents over a relatively limited period of time (beginning in April 2014) who “have experienced and will continue to experience serious personal injury and property damage.” Compl. at ¶ 1. This discrete time period and the continuing nature of the alleged injury – experienced in Flint – also demonstrates that the class is concentrated in Michigan. There are no circumstances – such as a large number of college students, military personnel, owners of second homes, or other temporary residents – suggesting that these Flint residents are anything other than citizens of Michigan. Cf. Evans v. Walter Indus., Inc., 449 F.3d 1159 (11th Cir. 2006) (no sufficient proof of Alabama citizenship of “extremely broad” class of “all individuals who have come in contact” with hazardous substances over period of 85 years). Based upon the contours of the proposed class, the concentration of injury in a specific location in Michigan over a relatively short period of time, and the absence of evidence suggesting otherwise, Plaintiffs have sustained their burden of demonstrating that more then two-thirds of the proposed class are citizens of Michigan. See also
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Coco v. Heck Indus., Inc., 2014 WL 1029994 (W.D. La. Mar. 17, 2014) (sufficient evidence of Louisiana citizenship when class members were injured as a result of operation of concrete plant near their homes in Louisiana).1
B. Significant Local Defendant To meet the second requirement of the local controversy exception, Plaintiffs must show that at least one defendant is a Michigan citizen whose conduct forms a “significant basis” of their claims and from whom the class seeks “significant relief.” 28 U.S.C. § 1332(d)(4)(A)(i)(II). This requirement ensures that jurisdiction is not defeated by the presence of a nominal defendant. In determining whether this requirement is met, the court looks to the allegations in the complaint. See, e.g., Coleman v. Estes Exp. Lines, Inc., 631 F.3d 1010, 101517 (9th Cir. 2011). “If the local defendant’s alleged conduct is a significant part of the alleged conduct of all the Defendants, then the significant basis provision is satisfied.” Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144, 156 (3d Cir. 2009). Defendant Lockwood, Andrews & Newnam, P.C. (“LAN P.C.”) is a Michigan corporation with its principal place of business in Flint, Michigan. The
1 Indeed, Defendants alleged that Plaintiffs were “citizens of the State of Michigan” in their Notice of Removal. See Notice of Removal at ¶ 15.
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other defendants are Lockwood, Andrews, & Newnam, Inc. (“LAN, Inc.”), a Texas corporation with its principal place of business in Texas, and Leo A. Daly Company, a Nebraska corporation with its principal place of business in Nebraska. The complaint does not appear to seek direct relief against the Leo A. Daly Company, but alleges that it is liable based upon its control over LAN and the lack of “legal distinction” between the companies. Compl. at ¶¶ 3, 79-82.
The complaint alleges that LAN Inc. conducted business in Genesee County, Michigan, “through LAN P.C.” Compl. at ¶ 4. Plaintiffs allege that LAN Inc. and LAN P.C. (collectively referred to as LAN) provided engineering services to Flint to upgrade the Flint Water Treatment Plant, allowing it to draw drinking water from the Flint River. Compl. at ¶ 26-27. Plaintiffs claim that “LAN failed to ensure that the upgraded FWTP would treat the water drawn from the Flint River with the proper anti-corrosive chemicals before it was released for consumption and use into the community. . . .” Id. at ¶ 40. Plaintiffs’ professional negligence claim is based upon Defendants’ duty to properly administer the operation of the FWTP so as not to endanger the health and property of Plaintiffs and the class.
Here, Plaintiffs seek direct, significant relief on behalf of all class members against LAN P.C. Based upon Plaintiffs’ allegations, LAN P.C. is not a nominal
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defendant, but is the Michigan licensed professional engineer through with LAN, Inc. and Leo A. Daly Company operated in Michigan. The court finds that the “local defendant” requirement is satisfied.
C. Principal Injuries Incurred in Michigan The third requirement of the local controversy exception to the CAFA is that the “principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed.” 28 U.S.C. § 1332(d)(4)(A)(i)(III). In light of Plaintiffs’ allegation that they are residents of Flint who have been and continue to be injured in Flint, there can be no serious doubt that this requirement is satisfied. See Compl. at ¶¶1, 2. D. No Other Class Action The fourth requirement is that “no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons” during the three-year period preceding the filing of this case. 28 U.S.C. § 1332(d)(4)(A)(ii). The parties do not dispute that this element is met. Moreover, the court has remanded dozens of similar individual cases against Lockwood to state court for lack of subject matter jurisdiction. If the court were to retain jurisdiction over this action, Lockwood would be defending similar actions
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in two forums, frustrating Congress’s intent that “defendants did not face copycat, or near copycat, suits in multiple forums.” Vodenichar v. Halcon Energy Properties, Inc., 733 F.3d 497, 508-509 (3d Cir. 2013). On the other hand, “if this Court remands the case, the lawsuits, which, by their facts and allegations do not present any matters of national interest, will be handled in a single jurisdiction in which the cases originated and in which the causes of action arose.” Logan v. CLUB Metro USA LLC, 2015 WL 7253935, at *3 (D.N.J. Nov. 17, 2015). III. Attorney’s Fees
Plaintiffs seek attorney’s fees pursuant to 28 U.S.C. § 1447(c), which provides that an “order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” Id. “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
Although the court finds that the local controversy exception to the CAFA applies, it is undisputed that the initial requirements for removal (amount in controversy and minimal diversity) were met. 28 U.S.C. § 1332(d)(2). Defendants did not, therefore, lack an objectively reasonable basis for removal and the court will not award attorney’s fees.
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IV. Conclusion The court concludes that this is “a truly local controversy that uniquely
affects a particular locality to the exclusion of all others” and that it must decline to exercise jurisdiction pursuant to the CAFA. See S. REP. 109-14, 39, 2005 U.S.C.C.A.N. 3, 38.
ORDER IT IS HEREBY ORDERED that Plaintiff’s motion to remand is GRANTED and this action is REMANDED to Genesee County Circuit Court.

Date: May 11, 2016

s/John Corbett O’Meara United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, May 11, 2016, using the ECF system.
s/William Barkholz Case Manager

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 Case: 16-2313 Document: 24-1 Filed: 11/16/2016 Page: 1

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: November 16, 2016
Mr. Jayson Edward Blake Mr. Mark L. McAlpine Mr. Adam Theodore Schnatz McAlpine Law Office 3201 University Drive, Suite 100 Auburn Hills, MI 48326
Mr. Robert G. Kamenec Plunkett Cooney 38505 Woodward Avenue Suite 2000 Bloomfield Hills, MI 48304
Mr. Sherman Vance Wittie Sedgwick 1717 Main Street, Suite 5400 Dallas, TX 75201
Re: Case No. 16-2313, Mason, et al v. Lockwood, Andrews & Newnam, et al Originating Case No. : 5:16-cv-10663
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk
Cathryn Lovely Deputy Clerk

Case: 16-2313 Document: 24-1 Filed: 11/16/2016 Page: 2
cc: Mr. David J. Weaver Enclosures Mandate to issue.

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0273p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

JENNIFER MASON, et al.,

┐

Plaintiffs-Appellees,

│ │

v.

││>

│ LOCKWOOD, ANDREWS & NEWNAM, P.C., │

a Michigan corporation; LOCKWOOD, ANDREWS │

& NEWNAM, INC., a Texas corporation,

│

Defendants-Appellants, │ │

│

LEO A. DALY COMPANY, a Nebraska corporation,

│

Defendant. │

┘

No. 16-2313

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-10663—John Corbett O’Meara, District Judge.

Argued: November 7, 2016

Decided and Filed: November 16, 2016

Before: GRIFFIN, KETHLEDGE, and DONALD, Circuit Judges. _________________

COUNSEL
ARGUED: S. Vance Wittie, SEDGWICK LLP, Dallas, Texas, for Appellants. Mark L. McAlpine, MCALPINE PC, Auburn Hills, Michigan, for Appellees. ON BRIEF: S. Vance Wittie, SEDGWICK LLP, Dallas, Texas, Robert G. Kamenec, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellants. Mark L. McAlpine, Jayson E. Blake, Adam T. Schnatz, MCALPINE PC, Auburn Hills, Michigan, for Appellees.
GRIFFIN, J., delivered the opinion of the court in which DONALD, J., joined. KETHLEDGE, J. (pp. 19–23), delivered a separate dissenting opinion.

1

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_________________
OPINION _________________
GRIFFIN, Circuit Judge. This state-law professional negligence proposed class action suit arises out of the Flint Water Crisis, a public health disaster that drew national media coverage when the City of Flint decided to supply water to its residents using the Flint River without implementing necessary anti-corrosion measures. The series of events precipitating the tragedy have little to do with the issue before us on appeal. We deal, instead, with a question of procedure: must plaintiffs litigate their claim in state or federal court? In 2005, Congress revised the contours of federal diversity jurisdiction, making it easier to remove class actions to federal court, while at the same time providing an exception for cases that are “truly local in nature,” commonly called the “local controversy” exception. The parties dispute whether plaintiffs’ claim against defendants (civil engineering companies responsible for upgrading Flint’s municipal water system) belongs in state court under this exception. Though the Flint Water Crisis captured the attention of the nation, its infamy does not make it any less local. Because plaintiffs’ suit consists of a proposed class of more than two-thirds Michigan citizens, a significant local defendant, and injuries limited to the reach of Flint’s water system, it satisfies the statutory requirements of the local controversy exception. We therefore affirm the district court’s decision to remand this case to state court.
I.
In 2005, Congress enacted the Class Action Fairness Act (CAFA) in response to “perceived abusive practices by plaintiffs and their attorneys in litigating major class actions with interstate features in state courts.” Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1243 (10th Cir. 2009). CAFA “loosened the requirements for diversity jurisdiction,” Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736, 739 (2014), authorizing federal district courts to “hear a ‘class action’ if the class has more than 100 members, the parties are minimally diverse, and the ‘matter in controversy exceeds the sum or value of $5,000,000.’” Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1348 (2013) (quoting 28 U.S.C. § 1332(d)(2), (d)(5)(B)). That expansion of diversity jurisdiction was with exceptions. See

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28 U.S.C. § 1332(d)(3), (d)(4)(A), (d)(4)(B). One, which Congress called the “Local Controversy Exception,” S. Rep. No. 109-14 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 28, is codified at § 1332(d)(4)(A). Under this exception, “[a] district court shall decline to exercise jurisdiction . . . over a class action” if:
(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;
(II) at least 1 defendant is a defendant--
(aa) from whom significant relief is sought by members of the plaintiff class;
(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and
(cc) who is a citizen of the State in which the action was originally filed; and
(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and
(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons[.]
§ 1332(d)(4)(A). If these four elements are present, the district court must abstain from hearing the case, despite having jurisdiction under § 1332(d)(2).
Like all statutes, the text of CAFA controls. Caminetti v.United States, 242 U.S. 470, 485 (1917); Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1060 (6th Cir. 2014). In this regard, its text must be read as a whole, not in isolation. United States v. Morton, 467 U.S. 822, 828 (1984). The relaxation of normal diversity requirements is coupled with an exception for local controversies. The terms of the statute balance considerations of federalism—a balance defined by Congress, but implemented and respected by the federal courts.

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II.
In April 2013, the City of Flint, Michigan, decided to switch its primary drinking water provider from the Detroit Water and Sewerage Department (“DWSD”) to the newly formed Karegnondi Water Authority (“KWA”). The KWA would not be operational for another three years, however, so Flint needed an interim source of drinking water. It decided to draw from the Flint River, which had previously supplied back-up water services to the City. Relying on the Flint River, however, posed a few problems. According to several reports, the river was a highly sensitive drinking water source that required anti-corrosive treatment in order to prevent heavy metals from leaching into the water. On top of that, these issues needed to be remedied quickly, as the City’s contract with DWSD was set to expire a year later in April 2014.
The City turned to Lockwood, Andrews & Newnam, Inc., a Texas-based corporation that touted itself as a “national leader in the heavy civil infrastructure engineering industry,” and its Michigan-based affiliate, Lockwood, Andrews & Newnam, P.C. (collectively, “defendants”) for assistance. On June 26, 2013, the City entered into a contract with defendants for design engineering services in connection with rehabilitating Flint’s Water Treatment Plant (“the Plant”). After confirming with City officials that they could make the necessary improvements and provide the necessary “quality control” in time for the April 2014 switch, defendants proceeded to develop rehabilitation plans for the Plant. In April 2014, the Michigan Department of Environmental Quality approved defendants’ rehabilitation plans. Notably, the plan did not include necessary upgrades for anti-corrosive treatment measures. Indeed, earlier that month, defendants and officials from the City and the Michigan Department of Environmental Quality considered the issue, but decided that more data was advisable before implementing any measures for “optimization for lead.”
On April 25, 2014, the City of Flint began supplying its residents drinking water from the Flint River. The harmful effects were as swift as they were severe. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. And within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires’ disease, and worst of all, reports of dangerously high blood lead levels in Flint children. All of this resulted, according to one expert who studied the crisis,

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because the “water from the Flint River was 19 times more corrosive than the water pumped from Lake Huron by the DWSD, and that without corrosion control treatment, lead was leaching out of the lead-based service lines at alarming rates and finding its way to the homes of Flint’s residents.” In his view, it was “predictable,” but preventable.
III.
On January 25, 2016, eight Flint residents filed suit in state court, alleging one count of professional negligence against defendants. Plaintiffs contended that defendants knew the Plant required upgrades for lead contamination treatment, yet failed to ensure such safeguards were implemented as part of the rehabilitation, resulting in widespread personal injuries and property damage. They sought relief on behalf of themselves and all other similarly situated “residents and property owners in the City of Flint” who used water from the Flint River from April 25, 2014, to the present day.
Defendants removed the action to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(d)(2). Plaintiffs filed a motion to remand to state court. They did not contest the basic requirements for diversity jurisdiction under CAFA. They argued instead that the mandatory “local controversy” exception to CAFA jurisdiction applied. Plaintiffs asserted that the class citizenship and principal injuries elements were not in dispute, citing the allegations in their complaint that the class consisted of Flint residents and that their injuries were suffered in Flint. They also argued that LAN, P.C., a Michigan professional corporation, was a significant defendant because it was the entity responsible under Michigan law for certifying that defendants’ work satisfied applicable standards of care. Finally, they contended that no party had filed a similar suit against defendants in the past three years.
Defendants countered that the class citizenship element was very much in dispute and that the mere allegation of residency, alone, was not sufficient to establish citizenship. Defendants also argued that the mere fact that LAN, P.C. certified the engineering plans does not establish its conduct formed a significant basis of plaintiffs’ negligence claim. Rather, LAN, Inc., a Texas corporation, was the more significant defendant since it contracted with Flint to provide the engineering services that plaintiffs alleged were negligently performed.

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The district court granted plaintiffs’ motion to remand. It found that more than twothirds of the putative class members were likely Michigan citizens. Relying primarily on the rebuttable presumption of domicile based on residency and the absence of any contrary evidence, the court also observed that the proposed class consisted of residents who, over a relatively limited period of time, experienced a continuing injury localized in Flint. The court also found that LAN, P.C.’s (the Michigan defendant’s) conduct formed a significant basis of plaintiffs’ claim because defendants’ engineering services were provided “through LAN, P.C.”
Defendants timely petitioned for permission to appeal, which this court granted on September 20, 2016. In re Lockwood, Andrews & Newnam, P.C., No. 16-0102, at 2 (6th Cir. Sept. 20, 2016). Our order initiated a 60-day clock in which we are required to issue a decision. In re Mortg. Elec. Registration Sys., Inc., 680 F.3d 849, 853 (6th Cir. 2012).
IV.
A.
We begin our analysis on an issue that enjoys unanimity, both between the parties and among the circuits, but which is nonetheless an important starting point: the burden of proof. The parties and every circuit to have addressed this issue all agree that the party seeking to remand under an exception to CAFA bears the burden of establishing each element of the exception by a preponderance of the evidence. See Woods v. Standard Ins. Co., 771 F.3d 1257, 1262 (10th Cir. 2014); Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010); Greenwich Fin. Servs. Distressed Mortg. Fund 3 LLC v. Countrywide Fin. Corp., 603 F.3d 23, 26 (2d Cir. 2010); In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 564 F.3d 75, 78 (1st Cir. 2009); Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 153 (3d Cir. 2009); Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir. 2007); Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 680 (7th Cir. 2006); Frazier v. Pioneer Ams. LLC, 455 F.3d 542, 546 (5th Cir. 2006); Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 (11th Cir. 2006).
We agree with the universal wisdom of our sister circuits for two, interrelated reasons. First, the language of “local controversy” exception indicates that it is not part of the initial jurisdictional calculus. Section 1332(d)(4) provides that “[a] district court shall decline to

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exercise jurisdiction under paragraph (2)” if certain conditions are met. Congress’s use of “decline” is important. It necessarily implies a prior determination of jurisdiction, since “a court could not ‘decline’ jurisdiction that it never had in the first place.” Clark v. Lender Processing Servs., 562 F. App’x 460, 465 (6th Cir. 2014). Second, the longstanding rule is that “whenever the subject matter of an action qualifies it for removal, the burden is on a plaintiff to find an express exception.” Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 698 (2003). Just as nothing in CAFA alters the traditional rule that the removing party bears the burden of establishing the jurisdictional elements, see Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 404 (6th Cir. 2007), we find nothing in the statute indicating that Congress intended to upend Breuer’s traditional rule. We therefore hold that the party seeking to remand bears the burden of establishing an exception to CAFA jurisdiction by a preponderance of the evidence.
Plaintiffs, as the moving party, must establish all four elements of the local controversy exception. But, as defendants only contest the two-thirds citizenship and “significant basis” requirements, we confine our inquiry to those elements. We take each in turn.
B.
The first element of the local controversy exception requires the movant to show that “greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed[.]” § 1332(d)(4)(A)(I). “Citizen” and its variant “citizenship” have acquired a particular meaning in our law as being equivalent to “domicile.” Von Dunser v. Aronoff, 915 F.2d 1071, 1072 (6th Cir. 1990) (“State citizenship . . . is equated with domicile.”); see also N.L.R.B. v. Amax Coal Co., a Div. of Amax, 453 U.S. 322, 329 (1981) (“Where Congress uses terms that have accumulated settled meaning . . . , a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.”). Thus, although the statute speaks in terms of citizenship, a party invoking the local controversy exception is effectively tasked with establishing the domicile of the proposed class members.
According to their complaint, plaintiffs seek to represent all “residents and property owners in the City of Flint” who used water from the Flint River from April 25, 2014, to the

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present day, and were thereby injured by defendants’ professional negligence. Defendants contend that the district court erred in finding that, more likely than not, two-thirds of this proposed class were citizens of Michigan.
In evaluating defendants’ challenge, two long-standing propositions of law inform our analysis. The first relates to our standard of review: an appellate court will not disturb a district court’s factual findings, including those regarding the citizenship of parties, “unless the record leaves us with the definite and firm conviction that a mistake has been committed.” Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 625 (6th Cir. 2016) (bracketing and quotation marks omitted); Cameron v. Children’s Hosp. Med. Ctr., 131 F.3d 1167, 1170 (6th Cir. 1997) (recognizing that citizenship is question of fact). The second relates to the substantive law of domicile: the law affords a rebuttable presumption that a person’s residence is his domicile. See, e.g., D.C. v. Murphy, 314 U.S. 441, 455 (1941). Taken together, these principles lead us to affirm the district court’s holding that plaintiffs satisfied the two-thirds citizenship requirement.
In elemental terms, domicile consists of (1) residence and (2) an intent to remain there. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). In practice, however, the law of domicile has long been one of presumptions. In his Commentaries on the Conflict of Laws, for example, Joseph Story listed over a dozen such presumptions, including: a person’s place of birth is presumptively their domicile; a child’s domicile is presumptively that of their parents; and, most important for our purposes, “primâ facie, the place, where a person lives, is taken to be his domicil, until other facts establish the contrary.” Joseph Story, Commentaries on the Conflict of Laws, § 46 (5th ed. 1857).
In recognizing the primacy of residency in the domicile calculus, Story was simply drawing from established legal tradition. As early as 1790, England’s House of Lords declared that “[a] person’s being at a place is primâ facie evidence that he is domiciled at that place, and it lies on those who say otherwise to rebut that evidence.” Bruce v. Bruce, 2 Bos. & Pull. 229, note (a). Not long after, the presumption made its way into American law. See 10 Am. & Eng. Ency. Law, Domicile, at 22 (2d ed.) (collecting early state and federal cases). In 1852, the United States Supreme Court announced that “[w]here a person lives, is taken primâ facie to be his domcil, until other facts establish the contrary.” Ennis v. Smith, 55 U.S. 400, 423 (1852). And in

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the 150 years since, the rule of thumb on residency and domicile has remained fixed: “The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” Murphy, 314 U.S. at 455; Anderson v. Watts, 138 U.S. 694, 706 (1891); Mitchell v. United States, 88 U.S. 350, 352 (1874); Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011); Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972); Walden v. Broce Const. Co., 357 F.2d 242, 245 (10th Cir. 1966); Fort Knox Transit v. Humphrey, 151 F.2d 602, 602 (6th Cir. 1945); 28 C.J.S. Domicile § 45; 39 Am. Jur. Proof of Facts 2d 587, § 8.
We emphasize the historical pedigree of the residency-domicile presumption because the district court primarily based its finding that plaintiffs met their burden under § 1332(d)(4)(A)(I) on the same. As a class that consists of Flint residents, the district court was correct, in light of the long-standing authority charted above, to afford plaintiffs the rebuttable presumption that each resident class member was domiciled there. Rather than rebut the presumption with evidence undermining the inference, defendants countered that merely alleging residency cannot, as a matter of law, suffice to satisfy the burden of demonstrating citizenship.
In support of their assertion, defendants point to a competing line of case law holding that “naked averment of . . . residence . . . is insufficient to show his citizenship.” Robertson v. Cease, 97 U.S. 646, 648 (1878). This principle also enjoys a rich pedigree in our law. See, e.g., Bingham v. Cabot, 3 U.S. (3 Dall.) 382, 383–84 (1798) (“str[iking] off the docket” many cases that alleged residence rather than citizenship); Steigleder v. McQuesten, 198 U.S. 141, 143 (1905) (“[I]t has long been settled . . . that a mere averment of residence in a particular state is not an averment of citizenship in that state for the purposes of jurisdiction.”). More significantly for defendants, many cases, including several from the CAFA context, have explicitly rejected the residency-domicile presumption based on the proposition that mere averment of residency cannot establish citizenship. See, e.g., Reece v. AES Corp., 638 F. App’x 755, 769 (10th Cir. 2016) (stating in the CAFA exception context, “To be sure, the place of residence is prima facie the domicile. But allegations of mere residence may not be equated with citizenship” (internal quotations omitted); Johnson v. Advance Am., 549 F.3d 932, 937 n.2 (4th Cir. 2008) (“For purposes of diversity jurisdiction, residency is not sufficient to establish citizenship.”).

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On closer inspection, however, we are not persuaded this line of cases presents compelling authority for rejecting the residency-domicile presumption in this case. The reason for this lies in the context from which the “mere averment of residency” line of cases emerged— federal subject-matter jurisdiction.
In that context, “[t]he established rule is that a plaintiff, suing in a federal court, must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction[.]” Smith v. McCullough, 270 U.S. 456, 459 (1926). This long-settled principle derives from the fact that federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As a consequence of this restriction on federal judicial power, federal jurisdiction may not be “maintained by mere averment,” McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936), “inferred argumentatively,” Brown v. Keene, 33 U.S. 112, 115 (1834), or “supplied by inference,” La Belle Box Co. v. Stricklin, 218 F. 529, 533 (6th Cir. 1914). Put differently, and in terms germane to the present discussion, there is a presumption against federal jurisdiction. Kokkonen, 511 U.S. at 377; Thomas v. Bd. of Trustees of the Ohio State Univ., 195 U.S. 207, 218 (1904); Vander Boegh, 772 F.3d at 1064.
The tension between the residency-domicile presumption and the presumption against federal jurisdiction came to a head in Robertson v. Cease, 97 U.S. 646 (1878). In that case, the plaintiff argued that “a general allegation of residence, without indicating the character of such residence, whether temporary or permanent, made a prima facie case of right to sue in the Federal courts.” Id. at 649. The Court rejected the contention because, “[a]s the jurisdiction of the Circuit Court is limited in the sense that it has none except that conferred by the Constitution and laws of the United States, the presumption . . . is[] that a cause is without its jurisdiction unless the contrary affirmatively appears.” Id. at 649. From the Court’s view, in being asked to adopt the residency-domicile presumption, it was, “in effect, asked, in support of the jurisdiction of the court below, to infer argumentatively, from the mere allegation of ‘residence,’ that . . . [the plaintiff] had a fixed permanent domicile in [Illinois].” Id. at 650. The Court could not accept that proposition because, under well-settled precedent defining the federal courts’ diversity jurisdiction, the facts establishing diversity jurisdiction could not “be inferred argumentatively

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from its averments,” id. at 650 (quoting Brown, 33 U.S. at 115), but rather must “be distinctly and positively averred in the pleadings,” id. at 649.
By tracing the origin of the “mere averment of residency” line of cases, we see that the residency-domicile presumption was not rejected because it was specious (indeed, Robertson could “not . . . den[y] that there is some force in the[] suggestion[],” id.), but because, in the unique context of federal diversity jurisdiction, a contrary presumption of constitutional import takes precedence. See Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884) (“[T]he rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception.”); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (rooting federal courts’ limited jurisdiction in Article III of the Constitution).
Though the residency-domicile presumption did not prevail against the unrelenting headwinds of limited federal jurisdiction, there is no reason it should suffer a similar fate under the local controversy exception. As established at the outset of our analysis, the local controversy exception is not jurisdictional. See also Clark, 562 F. App’x at 465 (holding that “the exceptions are not jurisdictional”); Visendi v. Bank of Am., N.A., 733 F.3d 863, 869 (9th Cir. 2013) (same); Gold v. N.Y. Life Ins. Co., 730 F.3d 137, 142 (2d Cir. 2013) (same); Morrison v. YTB Int’l, Inc., 649 F.3d 533, 536 (7th Cir. 2011) (same); Graphic Commc’ns Local 1B Health & Welfare Fund A v. CVS Caremark Corp., 636 F.3d 971, 973 (8th Cir. 2011) (same). Thus, a party asserting the exception does not encounter a similar countervailing presumption that neutralizes residency’s presumptive force in establishing domicile. In this context, it would function like a rebuttable presumption does in any other setting: shifting the burden to the opposing party to rebut the inference and permitting, but not requiring, the district court to find the ultimate fact. See, e.g., 2 McCormick On Evid. § 342 (7th ed.).
Indeed, the residency-domicile presumption fits particularly well in the CAFA exception context, where the moving party is tasked with demonstrating a fact-centered proposition about a mass of individuals, many of whom may be unknown at the time the complaint is filed and the case removed to federal court. See Nicole Ochi, Are Consumer Class and Mass Actions Dead? Complex Litigation Strategies After CAFA & MMTJA, 41 Loy. L.A. L. Rev. 965, 1030 (2008) (“To achieve the objective of these [CAFA] exceptions, courts should grant plaintiffs a

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presumption of citizenship when they define their classes according to state residency.”); Stephen J. Shapiro, Applying the Jurisdictional Provisions of the Class Action Fairness Act of 2005: In Search of a Sensible Judicial Approach, 59 Baylor L. Rev. 77, 135 (2007) (advocating the same). The citizenship inquiry under the local controversy exception should not be “exceptionally difficult,” Mondragon v. Capital One Auto Fin., 736 F.3d 880, 886 (9th Cir. 2013), but instead “practical and reasonable.” Hollinger, 654 F.3d at 572. Affording the moving party a rebuttable presumption of citizenship based on residency avoids the exceptional difficulty of proving the citizenship of a class of over 100 individuals, given the nature and timing of the citizenship inquiry under the local controversy exception. See id. at 573 (5th Cir. 2011) (“[W]here a proposed class is discrete in nature, a common sense presumption should be utilized in determining whether citizenship requirements have been met.”).
Those circuits that have rejected the rebuttable presumption in the CAFA context have relied on case law addressing federal subject-matter jurisdiction. See Reece, 638 F. App’x at 769 (citing Whitelock v. Leatherman, 460 F.2d 507, 514 (10th Cir. 1972) (“[A]llegations of mere ‘residence’ may not be equated with ‘citizenship’ for the purposes of establishing diversity.”)); In re Sprint Nextel Corp., 593 F.3d at 673 (citing Meyerson v. Harrah’s E. Chicago Casino, 299 F.3d 616, 617 (7th Cir. 2002) (“[R]esidence and citizenship are not synonyms and it is the latter that matters for purposes of the diversity jurisdiction.”)); Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 793, 799 (5th Cir. 2007) (citing Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (“For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient.”)). However, these decisions extended the “mere averment of residency” principle without accounting for its underlying rationale. The sole basis for eschewing the residency-domicile presumption in Robertson was the countervailing, “inflexible” presumption against federal jurisdiction. Swan, 111 U.S. at 382; see Robertson, 97 U.S. at 649–50. Because the local controversy exception is not jurisdictional, the premise of Robertson and its jurisdictional progeny is missing here. Given this material distinction, the line of cases defendants rely on provides no basis for rejecting the residency-domicile presumption in this case.

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One district court in our circuit has previously rejected the rebuttable presumption of citizenship for a different, albeit equally unpersuasive, reason. In Lancaster v. Daymar Colleges Grp., LLC, the district court declined to adopt the presumption as inconsistent with the proposition that the movant bears the burden of proving citizenship. No. 3:11-CV-157-R, 2012 WL 884898, at *3 (W.D. Ky. Mar. 14, 2012). But this proves too much. Under this rationale, rebuttable presumptions would cease to exist, since the only circumstance in which they serve any purpose is when the beneficiary of the presumption also bears the burden of proof. 1 Jones on Evidence § 4:2 (7th ed.) (“The underlying purpose and impact of a presumption is to affect the burden of proving or disproving the presumed fact.”). There is nothing inconsistent with placing the burden of proof on a particular party and also affording them a rebuttable presumption as one way of shouldering that burden. Indeed, our law is quite familiar with the concept. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506–07 (1993) (affording Title VII plaintiff a rebuttable presumption of unlawful discrimination if she establishes a prima facie case); see also 2 McCormick On Evid. § 343 (7th ed.) (listing other popular presumptions).
In a similar vein, defendants contend that our approach was rejected by the Seventh Circuit as “guesswork. Sensible guesswork, based on a sense of how the world works, but guesswork nonetheless.” In re Sprint Nextel Corp., 593 F.3d at 674. Again, this criticism can be made about presumptions generally. Presumptions are nothing more than common sense inferences “enlightened by human knowledge and experience.” 31A C.J.S. Evidence § 204. They are, to use Sprint’s phrase, the law’s recognition of “how the world works.” Defendants’ argument constitutes a wholesale rejection of presumptions generally, a position we are disinclined to adopt in the absence of any reason to do so. Having distinguished the only line of authority that other cases have cited to reject the residency-domicile presumption, we see no reason to close our eyes to a centuries-old inference that a person’s residence is presumptively his domicile.
The dissent takes issue with our analysis because it purportedly conflicts with the principle of abstention that we have a “virtually unflagging obligation” to exercise jurisdiction given to us. Because we have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given,” the dissent contends, “we cannot presume a fact

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that allows us to decline jurisdiction, any more than we can presume a fact that allows us to find that jurisdiction exists in the first place.” (first quoting Cohens v. State of Virginia, 19 U.S. 264, 404 (1821)).
The dissent’s recitation of abstention principles is accurate, but the conclusion it draws from them does not follow. The abstention doctrines the dissent invokes are judge-made exceptions to the powerful default rule that Congress alone has the constitutional authority to define the contours of federal jurisdiction. Zwickler v. Koota, 389 U.S. 241, 248 (1967). Thus, our “virtually unflagging obligation” stems from a deep sense of prudence, if not constitutional obedience, to listen when Congress directs federal courts to assume jurisdiction over particular controversies. See New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 359 (1989) (“Underlying these assertions is the undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds.”). But it is because common law abstention reflects a departure from the constitutional norm that the Supreme Court placed strict rules on its use. It is for this reason that the Supreme Court has admonished that abstention is an “extraordinary and narrow exception,” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976), only to be invoked in “narrowly limited ‘special circumstances,’” Zwickler, 389 U.S. at 248 (1967), and on only the “clearest of justifications,” Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002) (quoting Colorado River, 424 U.S. at 819).
But all of these common law restrictions on abstention have no place here because Congress has expressly directed courts to decline jurisdiction over local controversies. For this reason, we disagree with the dissent’s assertion that “[w]e have nothing like a clear justification for abstention here”—Congress has provided the all justification we need in § 1332(d)(4)(A). We would agree with the dissent that we have a “virtually unflagging obligation” to not decline jurisdiction when Congress’s only word on the matter is to exercise jurisdiction. But, when Congress directs something different, our obligation remains with the Constitution and the text of the statute enacted by Congress. And here Congress directed something different. In enacting CAFA, Congress expanded diversity jurisdiction while carving out an exception for “local controversies.” Read together and in harmony, CAFA’s provisions explicitly instruct federal

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district courts to remand class action cases that satisfy the elements of § 1332(d)(4)(A), notwithstanding the fact that the jurisdictional requisites are met. In light of Congress’s explicit directive to decline jurisdiction, the dissent’s common law abstention principles—born as they were in the context of judicial insubordination toward Congress—are inapplicable.
Furthermore, we would be remiss if we did not also observe that defendants drew the very same residency-domicile inference in their notice of removal. In their notice, defendants alleged that minimal diversity existed because “Plaintiffs were citizens of the State of Michigan.” And in support, defendants cited paragraph 2 of the first amended complaint, which merely alleged residency, not citizenship. Yet, defendants insist plaintiffs cannot draw the same inference when it comes to similarly situated Flint residents. Were we to take defendants’ and the dissent’s argument to its logical end point, we would be compelled—on the very authority that defendants argue requires this case remain in federal court—to conclude that defendants failed to establish the citizenship requirement of federal diversity jurisdiction.
In addition to the presumptive force of residency, there are other attributes of plaintiffs’ proposed class that bolster the inference that the putative class members, as residents of Flint, intend to remain there indefinitely. First, according to plaintiffs’ class definition, the class members have continuously resided in Flint, Michigan, for several years. Nat’l Artists Mgmt. Co. v. Weaving, 769 F. Supp. 1224, 1228 (S.D.N.Y. 1991) (listing as a relevant domicile consideration “the nature of the residence (i.e., how permanent the living arrangement appears)”); Restatement (Second) of Conflict of Laws, Chapter 2: Domicile, Topic 2 Spec. Note (1971) (“Residing for a considerable time in a place is persuasive evidence of domicil there . . . .”). In this respect, the district court astutely observed, “There are no circumstances—such as a large number of college students, military personnel, owners of second homes, or other temporary residents—suggesting that these Flint residents are anything other than citizens of Michigan.” Moreover, by definition, the putative class members are property owners, another strong indicator of domicile. Edick v. Poznanski, 6 F. Supp. 2d 666, 669 (W.D. Mich. 1998) (citing 1 Moore’s Federal Practice ¶ 0.74[3.3] (1991 & Supp. 1993)). Finally, it bears mentioning that Flint, Michigan, is nowhere near a state line (it lies near the crook of the thumb

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in the figurative “Michigan hand”), which further undermines the notion that the traditional residency-domicile inference is not appropriate in this particular case.
Against this backdrop, defendants submitted no evidence to rebut the presumption that the putative class members were citizens of Michigan. Instead, they merely relied on case law from other circuits stating that mere allegations of residency are not sufficient to establish citizenship. They did so at their peril. In light of the long-standing presumption of domicile based on residency, the additional domicile factors apparent from the class definition, and the complete absence of any evidence tending to rebut the presumption of domicile based on residency, we hold that the district court did not clearly err in finding that, more likely than not, more than two-thirds of the proposed class of Flint residents were Michigan citizens.
C.
Defendants also contest the district court’s finding that LAN, P.C.’s “alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class.” 28 U.S.C. § 1332(d)(4)(A)(i)(II)(bb).
We have yet to interpret this provision, but those circuits that have are in general agreement that this provision “effectively calls for comparing the local defendant’s alleged conduct to the alleged conduct of all the Defendants.” Kaufman, 561 F.3d at 156; see also Woods, 771 F.3d at 1266 (following Kaufman); Westerfeld, 621 F.3d at 825 (same). “The local defendant’s alleged conduct must be an important ground for the asserted claims in view of the alleged conduct of all the Defendants.” Kaufman, 561 F.3d at 157. After taking into account the totality of the conduct forming the basis of plaintiff’s claims, we must consider whether “the local defendant’s alleged conduct is a significant part of the alleged conduct of all the Defendants[.]” Id. at 156. If so, the “significant basis” provision is satisfied.
This case involves a single claim of professional negligence against three defendants: LAN, P.C. (a Michigan corporation), LAN, Inc. (a Texas corporation), and Leo A. Daly Company (a Nebraska corporation). The conduct underlying plaintiffs’ claim is the provision of engineering design services in connection with upgrades to Flint’s Water Treatment Plant,

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including drafting and implementing the engineering plans and providing “quality control” measures.
We begin with the third defendant, Leo A. Daly Company. Plaintiffs’ complaint does not allege that Leo A. Daly Company engaged in any engineering services. Instead, plaintiffs allege that Leo A. Daly Company is LAN, P.C.’s and LAN, Inc.’s corporate alter ego, thereby making Leo A. Daly Company vicariously liable for LAN’s tortious conduct. Given plaintiffs’ theory of liability, Leo A. Daly Company’s role in plaintiffs’ negligence claim is minimal at best.
That leaves LAN, P.C. and LAN, Inc. The complaint alleges professional negligence against both defendants and further alleges that all engineering work was conducted “through LAN, P.C.” More specifically, the complaint alleges that LAN, P.C. was formed to conduct LAN, Inc.’s work in Michigan, and that Flint relied on LAN, P.C.—as the LAN entity that “work[ed] with several water systems around the state”—to “perform quality control.” The failure to provide that quality control is the very core of plaintiffs’ professional negligence claim. We therefore agree with the district court that LAN, P.C.’s conduct forms an “important” and integral part of plaintiffs’ professional negligence claim.
Defendants argue that the professional services agreement with the City shows that its professional relationship was with LAN, Inc., not LAN, P.C. Even assuming we may properly consider this extrinsic evidence, compare Coleman v. Estes Exp. Lines, Inc., 631 F.3d 1010, 1015 (9th Cir. 2011) (limiting scope of “significant basis” inquiry to complaint), with Evans, 449 F.3d at 1167–68 (considering extrinsic evidence under “significant basis” provision), it does not alter our conclusion. That Flint formally contracted with LAN, Inc. is not inconsistent with plaintiffs’ allegation that LAN, Inc. provided its services “through LAN, P.C.” Moreover, the agreement acknowledges that LAN, Inc. would not be the only entity providing the services. It states that “all of the obligations required by [LAN, Inc.] under this Contract shall be performed by [LAN, Inc.] or by others employed by him and working under his direction and control.” This buttresses plaintiffs’ allegation that LAN, P.C., as the LAN entity that “work[ed] with several water systems around the state,” was responsible for “perform[ing] quality control,” and was the entity “through” which defendants provided their engineering services.

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Defendants also argue that, according to plaintiffs’ own complaint, LAN, P.C. conducted a majority of its business in LAN, Inc.’s Chicago office. However, the “significant basis” provision is not concerned with where the conduct occurred, but rather with who engaged in the conduct. § 1332(d)(4)(A)(i)(II)(bb) (requiring that a local defendant be a defendant “whose alleged conduct forms a significant basis for the claims . . . .” (emphasis added)). LAN, P.C. is a Michigan corporation and its conduct—regardless of where it is carried out—is evaluated against that of the other defendants. The allegations that LAN, P.C. was responsible for quality control, in conjunction with the allegation that defendants’ engineering work in Flint was conducted “through LAN P.C.,” are sufficient to establish that LAN, P.C.’s conduct forms a “significant basis” of plaintiffs’ professional negligence claim.
V.
For the foregoing reasons, we agree with the district court that plaintiffs established the class citizenship and significant basis requirements of the local controversy exception to CAFA. It is also important that we not lose sight of the forest for the trees. The local controversy exception exists to ensure that “a truly local controversy—a controversy that uniquely affects a particular locality to the exclusion of all others”—remains in state court. S. Rep. No. 109-14, 39 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 38. By that definition, and the statutory elements Congress set forth to achieve that vision, the case before us exemplifies the quintessential local controversy. Indeed, it defies common sense to say a suit by Flint residents against those purportedly responsible for injuring them through their municipal water service is not a “local controversy.”
For these reasons, we affirm the judgment of the district court.

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_________________
DISSENT _________________
KETHLEDGE, Circuit Judge, dissenting. To meet a burden of proof, a party usually must provide some. Here, it is common ground that the federal courts have jurisdiction over this case and that the plaintiffs bear the burden of proving that we may lawfully abstain from exercising that jurisdiction. The plaintiffs have not met that burden, or even tried.
By way of background, the federal courts “have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). Abstention is an “extraordinary and narrow exception” to that duty. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). Thus, only the “clearest of justifications” will justify abstention. Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002).
We have nothing like a clear justification for abstention here. The federal courts undisputedly have jurisdiction over this case under the Class Action Fairness Act. See 28 U.S.C. § 1332(d). Instead the question here, broadly stated, is whether we may abstain from exercising that jurisdiction per the Act’s so-called “local-controversy exception.” For that exception to apply—and thus for us lawfully to send the case back to state court—the plaintiffs must prove, among other things, both that more than two-thirds of the putative class-members “are citizens of the State in which the action was originally filed” (i.e., Michigan) and that the alleged conduct of the sole Michigan defendant “forms a significant basis for the claims” of the putative class. Id. § 1332(d)(4)(A)(I), (II)(bb).
The plaintiffs have proved neither. As for the first requirement, every circuit to have considered the issue—five so far—has held that “there must ordinarily be at least some facts in evidence from which the district court may make findings regarding the class members’ citizenship for purposes of CAFA’s local-controversy exception.” Mondragon v. Capital One Auto Finance, 736 F.3d 880, 884 (9th Cir. 2013) (gathering cases); see also Reece v. AES Corp., 638 Fed. App’x 755, 769-70 (10th Cir. 2016); In re Sprint Nextel Corp., 593 F.3d 669, 674-676

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(7th Cir. 2010); Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 793, 799-801 (5th Cir. 2007); Evans v. Walter Indus., Inc., 449 F.3d 1159, 1166 (11th Cir. 2006). Meanwhile, as the majority correctly observes, citizenship in this context equates to domicile, and domicile consists of both residence in a State and an intention to remain there. Maj. Op. at 7-8. Thus, to meet this requirement, the plaintiffs must show by a preponderance of the evidence that more than two-thirds of the putative class-members both reside in Michigan and intend to remain there. But on those points (or any other) the plaintiffs have presented no evidence at all. Instead they merely cite the allegations in their complaint. That, per the law of every circuit to have addressed the issue, is reason enough to conclude that we must exercise our jurisdiction in this case.
The majority concludes otherwise by means of a presumption. As an initial matter, the guesswork here begins with even defining the putative class, since the plaintiffs neglected to define it in their putative class-action complaint. But the complaint does say that the classmembers are similarly situated to the plaintiffs, and that the plaintiffs are “residents and property owners in the City of Flint” who (or which, as the case may be) were exposed to water supplied from the Flint River after April 25, 2014. Complaint ¶¶ 1, 84. Plaintiffs’ counsel also clarified during oral argument that the phrase “property owners” does not modify “residents,” but instead describes a separate group within the putative class. Thus, taking the allegations and clarification together, one can surmise that the class includes residents exposed to the Flint water supply after April 25, 2014, and property owners likewise exposed.
At this point the majority’s presumption arises. According to the majority, the plaintiffs have alleged that the class members are residents of Flint, which (in the majority’s view) creates a presumption that they are citizens as well, which in turn throws upon the defendants the burden of proving that one-third of the putative class are not citizens of Michigan. But this reasoning is mistaken both factually and legally. The factual mistake is the assertion that the plaintiffs have alleged that all the class members are Flint residents, since—per the statement of plaintiffs’ counsel at oral argument—the class includes Flint “property owners” who need not be residents of Flint (or Michigan) to be members of the class. Thus, the majority’s presumption of citizenship does not apply to “property owners”—whose numbers are anyone’s guess. Even the

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majority’s presumption, therefore, does not provide us with anything near what the law would regard as a proper basis to conclude that two-thirds—as opposed to one-third, or one-half, or three-quarters—of the putative class-members are Michigan citizens. We thus lack the requisite “clearest of justifications” to decline to exercise our jurisdiction here. Rouse, 300 F.3d at 715.
The majority’s legal mistake is more complicated. The majority observes, correctly, that “there is a presumption against federal jurisdiction[,]” Maj. Op. at 10, which in any particular case the party asserting jurisdiction must overcome. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, the majority reasons further, the federal courts cannot presume in diversity cases—where the existence of the court’s jurisdiction depends on the parties’ citizenship—that a party is a citizen of a state simply because the party is a resident of it. For in that event the court would presume that jurisdiction exists, when instead the court must presume that it does not. But here the situation is different, the majority reasons, because in this case the federal courts already have jurisdiction; the question instead is whether to exercise it. The majority thus splits with five other circuits, and concludes that we are free to presume that a mere allegation of residency in Michigan is enough to prove citizenship there.
What the majority overlooks, however, is the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” Colorado River, 424 U.S. at 817. As Chief Justice Marshall put it nearly 200 years ago: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 19 U.S. 264, 404 (1821); see also Sprint Communications, Inc. v. Jacobs, 134 S.Ct. 584, 590-91 (2013) (same). That means we cannot presume a fact that allows us to decline jurisdiction, any more than we can presume a fact that allows us to find that jurisdiction exists in the first place. Thus, just as we cannot presume that residency equals citizenship when determining whether jurisdiction exists, neither can we apply that same presumption when determining whether we can decline jurisdiction. And that is exactly what the majority does here.
I would therefore dispense with all the dueling presumptions, and instead simply ask what the other circuits ask: whether the plaintiffs have produced “evidence from which the district court may make findings” that more than two-thirds of the putative class-members are

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citizens of the State in which the case was originally filed. Mondragon, 736 F.3d at 884. Here, the plaintiffs have not produced such evidence, or even any evidence at all. That conclusion, standing alone, means that we must exercise our jurisdiction in this case.
More briefly, the plaintiffs have likewise failed to show that the only Michigan defendant in this case—Lockwood, Andrews & Newnam, P.C. (“Lockwood P.C.”)—is one “whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class[.]” 28 U.S.C. § 1332(d)(4)(A)(II)(bb). As an initial matter, as the Ninth Circuit has persuasively explained, the statutory reference to “alleged conduct” means that (in contrast to the citizenship requirement) we look solely to the allegations in the complaint when determining whether the plaintiffs have met this prerequisite to abstention. See Coleman v. Estes Exp. Lines, Inc., 631 F.3d 1010, 1015 (9th Cir. 2011). Our inquiry as to this prerequisite is comparative: we ask whether the in-state defendant’s conduct, as alleged in the complaint, is important when compared to the conduct of the other defendants as so alleged. See, e.g., Westerfield v. Ind. Processing LLC, 621 F.3d 819, 825 (8th Cir. 2010); Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 156 (3d Cir. 2009); Evans, 449 F.3d at 1167.
Here, the plaintiffs’ allegations as to the Michigan defendant—Lockwood P.C.—are an enigma. The complaint alleges that the City of Flint retained a Texas corporation—Lockwood, Andrews Newnam, Inc. (“Lockwood Inc.”), which is likewise a defendant here—“to conduct studies and reports of a new water supply that was being developed” for the City. Complaint ¶ 3. The complaint also alleges that Lockwood P.C. “was incorporated in 2008 by” Lockwood Inc. after the latter was so retained, and that Lockwood Inc. “conducted business in Genesee County, Michigan through” Lockwood P.C. The complaint then proceeds to define both Lockwood entities collectively as “LAN,” which for the remainder of the complaint is the subject of every verb describing conduct allegedly forming the basis of the plaintiffs’ claims. Thus, as in a Fifth Circuit case, “nothing in the complaint distinguishes the conduct of [Lockwood P.C.] from the conduct of the other defendants.” Opelousas Gen. Hosp. Auth. v. FairPay Sols., Inc., 655 F.3d 358, 362 (5th Cir. 2011). The complaint therefore “contains no information about the conduct of [Lockwood P.C.] relative to the conduct of the other defendants[,]” and thus does not establish that Lockwood P.C’s conduct “forms a significant basis of the plaintiff[s’] claims.” Id.

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Moreover, the complaint never explains what the plaintiffs mean by their allegation that Lockwood Inc. conducted business “through” Lockwood P.C. Instead, that phrase remains an exercise in studied ambiguity. Finally, what the complaint does say about the conduct of the defendants relative to one another affirmatively suggests that the more significant actor was the remaining defendant, Leo A. Daly Company, a Nebraska corporation (which the complaint calls “LAD”). Specifically, the complaint alleges that “LAN is a subsidiary of LAD,” that “LAN exists as a separate entity from LAD in name only[,]” and that “LAN is totally reliant upon LAD for direction with regard to all critical aspects of the issues giving rise to this lawsuit.” Complaint ¶ 80. The complaint thus provides plenty of reason to conclude that LAD’s conduct was significant as compared to either of the Lockwood entities, but no basis at all to conclude that the conduct of Lockwood P.C., in particular, was significant as compared to the conduct of the other defendants. Indeed, the district court never found that Lockwood P.C.’s alleged conduct formed a “significant basis” for the claims of the putative class. Instead, the majority supplies that finding for the first time in its opinion today.
It should take a better showing than this for a federal court to cast off its unflagging duty to exercise the jurisdiction assigned to it by Congress. I respectfully dissent.

Case: 16-2313 Document: 24-3 Filed: 11/16/2016 Page: 1

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 16-2313

JENNIFER MASON, et al., Plaintiffs - Appellees,
v.
LOCKWOOD, ANDREWS & NEWNAM, P.C., a Michigan corporation; LOCKWOOD, ANDREWS & NEWNAM, INC., a Texas corporation,
Defendants - Appellants,

FILED
Nov 16, 2016
DEBORAH S. HUNT, Clerk

LEO A. DALY COMPANY, a Nebraska corporation, Defendant.

Before: GRIFFIN, KETHLEDGE, and DONALD, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the judgment of the district court is AFFIRMED.

ENTERED BY ORDER OF THE COURT

____________________________________ Deborah S. Hunt, Clerk

 
 2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 1 of 39 Pg ID 28
EXHIBIT A

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 2 of 39 Pg ID 29

Approved, SCAO

Original - Court 1st copy - Defendant

2nd copy - Plaintiff 3rd copy - Return

STATE OF MICHIGAN
JUDICIAL DISTRICT 7th JUDICIAL CIRCUIT
COUNTY PROBATE
Court address
900 S. Saginaw Street, Flint, MI 48502

CASE NO.

SUMMONS AND COMPLAINT

16-

-NM

1 6- 1 06 1 50

CPAr,:D B. YUILLF Court telephone no.

(810) 257-3220

Plaintiffs name(s), address(es), and telephone no(s).
JENNIFER MASON,CARL ROGERS II, TERESA SPRINGER,JEFFREY DUSHANE,DEBORAH CULVER, DR.TRISTIN HASSELL,ADAM DILL AND DAVID YEOMAN on behalf of themselves and a class of all others similarly situated,

Defendant's name(s), address(es), and telephone no(s).
Lockwood,Andrews & Newnam,Inc. C/o National Registered Agents, Inc. 1999 Bryan Street, Ste 900 Dallas, TX 75201

Plaintiffs attorney, bar no., address, and telephone no.
Mark L.McAlpine(P35583)John T.Peters,Jr.(P40200) McAlpine PC 3201 University Drive,Ste 100 Auburn Hills, MI 48326 T:(248)373-3700 F:(248)373-3708

SUMMONS NOTICE TO THE DEFENDANT: In the name ofthe people ofthe State of Michigan you are notified: 1. You are being sued. 2. YOU HAVE 21 DAYS after receiving this summons to file a written answer with the courtand serve a copy on the other party
ortake otherlawfulaction with the court(28 daysifyou wereserved by mailor you wereserved outside thisstate).(MCR2.111(C)) 3. If you do notanswer ortake other action within the time allowed,jud•ment may be entered against you forthe reliefdemanded
in the complaint.

`This summons Is invalid unless served on or before its expiration date. This ocu nt ust be sealed by the seal of the court.

COMPLAINT Instruction: Thefollowingisinformation thatisrequiredto bein the caption ofeverycomplaintandistobe completed by the plaintiff. Actualallegationsand the claim for relief mustbe stated on additional complaintpages and attached to this form.

El This is a business case in which all or part of the action includes a business or commercial dispute under MCL 600.8035.

Family Division Cases u There is no otherpending or resolved action within thejurisdiction ofthefamily division ofcircuitcourtinvolving thefamily orfamily

members ofthe parties.

11:1An action within thejurisdiction ofthe family division ofthe circuit courtinvolving the family orfamily members ofthe parties has

been previouslyfiled in
The action u remains

Court.
u is no longer pending. The docket number and the judge assigned to the action are:

Docket no.

Judge

Bar no,

General Civil Cases

There is no other pending or resolved civil action arising outofthe same transaction or occurrence as alleged in the complaint. u A civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint has

been previously filed in

Court.

The action 0remains 0is no longer pending. The docket number and thejudge assigned to the action are:

Docket no.

Judge

Bar no.

VENUE
Plaintiff(s) resIdentellriblUM city; township; Or village)"
Flint, Michigan
Place where action arose or business conducted
Flint, Michigan

Deferida-rit(s)''reSidefice (iiickide'oity, town-Ship;orVillag-er
Flint, Michigan

01/25/2016

Date

Signature of atto

lift

If you require specialaccommodationsto use the court because ofa disability orif you require aforeign anguage interpreterto help

you fully participate in court proceedings, please contact the court immediately to make arrangements.

MC 01 (5/15) SUMMONS AND COMPLAINT MCR 2.102(8)(11), MCR 2.104, MCR 2.105, MCR 2.107, MCR 2.113(C)(2)(a),(b), MCR 3.206(A)

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 3 of 39 Pg ID 30

PROOF OF SERVICE

SUMMONS AND COMPLAINT

Case No. 16-

-NM

TO PROCESS SERVER: You are to serve the summons and complaint not later than 91 days from the date offiling or the date ofexpiration on the orderforsecond summons.You mustmake and file yourreturn with thecourtclerk. Ifyou are unabletocomplete service you must return this original and all copies to the court clerk.

CERTIFICATE/AFFIDAVIT OF SERVICE/NONSERVICE

u OFFICER CERTIFICATE

OR

I certify that I am a sheriff, deputy sheriff, bailiff, appointed

court officer,or attorney for a party(MCR 2.104[A][2]),and

that: (notarization not required)

u AFFIDAVIT OF PROCESS SERVER
Being first duly sworn, I state that I am a legally competent adultwho is nota party oran officerofa corporate party,and that: (notarization required)

u I served personally a copy of the summons and complaint,
u I served by registered or certified mail(copy of return receipt attached)a copy of the summons and complaint,
together with
List all documents served with the Summons and Complaint

Defendant's name

Complete address(es) of service

on the defendant(s):
Day, date, time

u I have personally attempted to serve thesummonsand complaint,togetherwith any attachments,on thefollowing defendant(s)
and have been unable to complete service.

Defendant's name

Complete address(es) of service

Day, date, time

I declare that the statements above are true to the best of my information, knowledge,and belief.

Service fee $

Miles traveled Mileage fee Total fee

$

$

Signature Name (type or print)

Title
Subscribed and sworn to before me on
Date

My commission expires:
Date

Signature-
Deputy court clerk/Notary public

Notary public, State of Michigan, County of

I ACKNOWLEDGMENT OF SERVICE

I acknowledge that I have received service of the summons and complaint, together with
Attachments

on
Day, date, time

Signature

on behalf of

County, Michigan.

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 4 of 39 Pg ID 31

Approved, SCAO

Original - Court 1st copy - Defendant

2nd copy - Plaintiff 3rd copy - Return

STATE OF MICHIGAN JUDICIAL DISTRICT
7th JUDICIAL CIRCUIT COUNTY PROBATE
Court address
900 S. Saginaw Street, Flint, MI 48502

SUMMONS AND COMPLAINT

CASE NO.

1 16-

- -NM. .

6 — 1 06 1 50-

RICHARD $,YUILLt Court telephone no. P-22664 (810) 257-3220

Plaintiffs name(s), address(es), and telephone no(s).
JENNIFER MASON,CARL ROGERS II, TERESA SPRINGER;JEFFREY DUSHANE,DEBORAH CULVER, TRISTIN HASSELL,ADAM DILL AND DAVID YEOMAN on behalf of themselves and a class of all others similarly situated,

Defendant's name(s), address(es), and telephone no(s),
Lockwood, Andrews & Newnam,P.C. C/o National Registered Agents, Inc. 30600 Telegraph Road,Ste 2345 Bingham Farms, MI 48025

Plaintiffs attorney, bar no., address, and telephone no.
Mark L.McAlpine(P35583)John T.Peters, Jr.(P40200) McAlpine PC 3201 University Drive, Ste 100 Auburn Hills, MI 48326 T:(248)373-3700 F:(248)373-3708

SUMMONS NOTICE TO THE DEFENDANT: In the name ofthe people ofthe State of Michigan you are notified:

1. You are being sued.

2. YOU HAVE 21 DAYS after receiving this summonsto file a written answer with the courtand serve a copy on the other party

ortake otherlawfulaction with the court(28daysifyou were served by mailor youwereserved outsidethisstate).(MCR2.111(C))

3. If you do notanswer or take other action within the time allowed,judgment may be entered against you forthe reliefdemanded

in the complaint.

Issued

This summons erAN 2 5 2016 Court

JAN'2' 5 716

*This summons is invalid unless served on or before its expiration date, This d? ument ust be sealed by the seal of the cou

COMPLAINT Instruction: Thefollowingisinformation thatisrequiredtobe in thecaption ofeverycomplaintandistobe completed by the plaintiff. Actualallegations and the claim for relief must be stated on additionalcomplaintpages and attached to this form.

0This is a business case In which all or part ofthe action includes a business or commercial dispute under MCL 600.8035.

Family Division Cases
0There is noother pending orresolved action within thejurisdiction ofthefamily division ofcircuitcourtinvolving thefamily orfamily

members ofthe parties.

1:IAn action within thejurisdiction ofthe family division ofthe circuitcourtinvolving the family orfamily members ofthe parties has

been previously filed in

Court.

The action 0remains 0is no longer pending. The docket number and the judge assigned to the action are:

Docket no.

Judge

Bar no.

General Civil Cases

0There is no other pending or resolved civil action arising out ofthe same transaction oroccurrence as alleged in the complaint.

0A civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint has

been previously filed in

Court.

The action remains u is no longer pending. The docket number and the judge assigned to the action are:

Docket no.

Judge

Bar no.

VENUE Plaintiff(s) residence (include city, township, or village) Flint, Michigan
Place where action arose or business conducted Flint, Michigan

Defendant(s) residence (include city; township, or village) Flint, Michigan

01/25/2016

Date

Signature of atto

Ifyou require specialaccommodationsto use the court because ofa disability or if you require

language interpreterto help

you fully participate in court proceedings, please contact the court immediately to make arrangements.

MC 01 (5115) SUMMONS AND COMPLAINT MCR 2.102(B)(11), MCR 2.104, MCR 2.105, MCR 2.107, MCR 2.113(C)(2)(a),(b), MCR 3.206(A)

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 5 of 39 Pg ID 32

r PROOF OF SERVICE

SUMMONS AND COMPLAINT

Case No. 16-

-NM

TO PROCESS SERVER: You are to serve the summons and complaint not later than 91 days from the date offiling or the date

ofexpiration on theorderforsecond summons.You must make and file your return with the courtclerk. lfyou are unabletocomplete

service you must return this original and all copies to the court clerk.

CERTIFICATE/AFFIDAVITOFSERVICE/ NONSERVICE

u OFFICER CERTIFICATE

OR

I certify that I am a sheriff, deputy sheriff, bailiff, appointed

court officer, or attorneyfora party(MCR 2.104[A)[21),and

that: (notarization not required)

u AFFIDAVIT OF PROCESS SERVER Being first duly sworn, I state that I am a legally competent adultwhois nota party oran officerofa corporate party,and that: (notarization required)

D I served personally a copy ofthe summons and complaint,
u l served by registered or certified mail(copy of return receipt attached)a copy of the summons and complaint,
togetherwith
List all documents served with the Summons and Complaint

Defendant's name

Complete address(es) of service

on the defendant(s):
Day, date, time

Lill have personally attempted toservethesummonsand complaint,togetherwith any attachments,on thefollowing defendant(s) and have been unable to complete service.

Defendant's name

Complete address(es) of service

Day, date, time

I declare that the statements above are true to the best of my information, knowledge,and belief.

Service fee

Miles traveled Mileage fee Total fee

$

$

Signature Name (type or print)

Subscribed and sworn to before me on
Date
My commission expires:
Date
Notary public,State of Michigan, County of

Title
Signature:
Deputy court clerk/Notary public

ACKNOWLEDGMENT OF SERVICE

I acknowledge that I have received service ofthe summons and complaint,together with
Attachments

on
Day, date, time

Signature

on behalf of

County, Michigan.

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 6 of 39 Pg ID 33

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR TILE COUNTY OF GENESEE

JENNIFER MASON,CARL ROGERS II, 1ERESA SPRINGER,JEFFREY DUSHANE, DEBORAH CULVER,DR.TRISTIN HASSELL, ADAM DILL,AND DAVID YEOMAN on behalfofthemselves and a class ofall others similarly situated,
Plaintiffs,

Hon.
calA.-161 0 6N3iI50 —
RICHARD B. YUILLE P-22864

v,

LOCKWOOD,ANDREWS & NEWNAM,P.C.,a Michigan corporation, and LOCKWOOD, ANDREWS & NEWNAM,INC.,a Texas Corporation,

Defendants.

McALPINE PC Mark L. McAlpine(P35583) John T.Peters, Jr.(P40200) Adam T. Schnatz(P72049) 3201 University Drive, Suite 100 Auburn Hills, MI48326
I
CLASS ACTION COMPLAINT
Plaintiffs Jennifer Mason, Carl Rogers II, Teresa Springer, Jeffrey Dushane, Deborah
Culver, Dr. Tristin Hassell, Adam Dill, and David Yeoman,on behalfofthemselves and all other
similarly situated(the"Class"as defined below),upon personal knowledge asto thefactpertaining
to themselves and upon information and belief as to all other matters, and based upon the
investigation of counsel, bring this class action for damages and other relief against Defendants
Lockwood, Andrews & Newnam,P.C. and Lockwood, Andrews & Newnam,Inc., based on the
following allegations.

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 7 of 39 Pg ID 34
PARTIES,JURISDICTION AND VENUE 1. This lawsuit is brought as a proposed class action against Lockwood,Andrews & Newnam,PC.and Lockwood,Andrews & Newnam,Inc.,for professional negligence in connection with their participation in the plan to use the Flint River as a primary source for drinking water in the City ofFlint. As a direct and proximate result ofDefendants' breaches,the residents ofthe City ofFlint("Flint"),from April 25,2014 to the present,have experienced and will continue to experience serious personal injury and property damage. 2. Plaintiffs' representatives are, and at all relevant times were,residents ofthe City ofFlint, Michigan, who,as individuals, parents and minors and as property owners,have been and continue to be exposed to highly dangerous conditions created and caused by Defendants' negligent administration ofa plan to place the Flint Water Plant into operation using the Flint River as a primary source. 3. Defendant Lockwood,Andrews &Newnam,PC.is a Michigan professional corporation with its principal place of business in Genesee County, Michigan and Defendant Lockwood,Andrews & Newnam,Inc. is a Texas professional corporation doing business in Genesee County, Michigan. For all intents and purposes both entities were involved in the activities described below and therefore shall be collectively referred to herein as "LAN." 4. The amount in dispute is in excess of$25,000.00,exclusive ofcosts and attorney fees and all ofthe parties have,upon information and belief,personally transacted business in Genesee County,Michigan,such thatjurisdiction and venue are properly with this Court.
CLASS ALLEGATIONS 5. This action is brought by the named Plaintiffs on behalfofindividuals who,as individuals,parents and minors and as property owners,have been and continue to be exposed to
2

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 8 of 39 Pg ID 35
highly dangerous conditions created and caused by Defendant's negligent administration of a plan to place the Flint Water Plant into operation using the Flint River as a primary source.
6. The number ofinjured individuals who have been exposed to and injured by the highly dangerous conditions(described more thoroughly below)is in the tens ofthousands. The number ofclass members is sufficiently numerous to make class action status the most practical method for Plaintiffs to secure redress for injuries sustained and class wide equitable relief.
7. There are questions oflaw and fact raised by the named Plaintiffs' claims common to, and typical of, those raised by the Class they seek to represent.
8. The violations oflaw and resulting harms alleged by the named Plaintiffs are typical ofthe legal violations and harmed suffered by all Class members.
9. PlaintiffClass representatives will fairly and adequately protect the interest ofthe Plaintiffclass members. Plaintiffs' counsel are unaware ofany conflicts ofinterest between the class representatives and absent class members with respect to the matters at issue in this litigation;the class representatives will vigorously prosecute the suit on behalfofthe Class; and the class representatives are represented by experienced counsel.
10. Plaintiffs are represented by attorneys with substantial experience and expertise in complex and class action litigation involving engineering firms and the duty of care.
11. Plaintiffs' attorneys have identified and thoroughly investigated all claims in this action,and have committed sufficient resources to represent the Class.
12. The maintenance ofthe action as a class action will be superior to other available methods ofadjudication and will promote the convenient administration ofjustice. Moreover, the prosecution ofseparate actions by individual members ofthe Class could result in inconsistent or varying adjudications with respect to individual members ofthe Class.
3

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 9 of 39 Pg ID 36
13. Defendants have acted or failed to act on grounds generally applicable to all Plaintiffs,necessitating legal relieffor the Class,including but not limited to an award of damages to fully compensate the Class for all ofthe damages it has sustained past, present and future.
FACTUAL ALLEGATIONS 14. From 1964 to 2014,Flint water users received their water from Lake Huron via the Detroit Water and Sewerage Department("DWSD"). 15. During this 50 year span,the Flint water users enjoyed safe, clean,fresh water in their homes,businesses, hospitals and other places ofpublic services. 16. In 2011,Flint government officials commissioned a study by LAN to determine if the Flint River could be safely used by the city as the primary source of drinking water for its more than 31,000 users. A report ofthe study, entitled Analysis ofthe FlintRiver as a Permanent Water Supplyfor the City ofFlint(the"2011 Report"), was published in July,2011. 17. The July 2011 LAN report stated that the water from the Flint River was highly corrosive and could not be used safely without an anti-corrosive agent to prevent lead, copper and other heavy metals from leaching into the waterfrom the lead,copper and iron-based water lines. 18. In early 2013, City ofFlint Emergency Manager Ed Kurtz signed an agreement to switch Flint's primary drinking water source from the DSWD water source to a newly formed Karegondi Water Authority("KWA"),which was scheduled to become operational sometime in 2016. 19. In June of2013,Mr.Kurtz authorized action to prepare the Flint Water Treatment Plant("FWTP")in anticipation ofusing the Flint water as the primary water source.
4

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 10 of 39 Pg ID 37
20. On June 26,2013,Kurtz signed a Resolution authorizing Flint City Officials to enter into a Professional Services contract with LAN for the administration ofplacing the Flint Water Plant into operation using the Flint River as a primary source.
21. Shortly thereafter,LAN did enter into a Professional Services contract for the administration of placing the Flint Water Plant into operation using the Flint River as a primary source,and LAN is designated as the Design Engineer on the City ofFlint's application for a permit for placing the Flint Water Plant into operation using the Flint River as a primary source.
22. Because it had prepared the 2011 report regarding Flint River water,LAN was well aware that without a proper anti-corrosive treatment using the Flint River as a primary source ofdrinking water would create a condition dangerous to health and property.
23. Contrary to water quality standards and common sense,LAN failed to evaluate the quality ofthe Flint River water as it came out ofthe consumers' tap before substituting high quality Detroit water with questionable quality Flint River water.
24. LAN was fully aware that, as a consequence ofthe failure to use the required and necessary anti-corrosive agent in the Flint River water,the Plaintiffs and the entire PlaintiffClass were being exposed to toxic levels oflead and other metals and chemicals.
25. The Michigan Department ofEnvironmental Quality("MDEQ")promulgated rules that required Flint to conduct two six-month rounds oftesting for lead and copper(JulyDecember 2014 and January-June 2015)in homes that were identified as"Tier 1"sample sites (sites with known lead plumbing and/or service lines),for the presence oflead or other heavy metals.
26. Notwithstanding the MDEQ lead testing rules, corrosion control chemicals should have been used immediately in connection with placing the Flint Water Plant into operation
5

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 11 of 39 Pg ID 38

using the Flint River as a primary source, as corroborated by the December 2015 "Auditor's Report," which expressly criticized the MDEQ because it did not confer with or obtain the approval ofthe EPA when it decided to delay the use ofcorrosion control chemicals until after the two rounds of monitoring tests.

27. The Auditor's Report also established that in accordance with the Federal Safe

Drinking Water Lead and Copper Rule("LCR"),all large public water systems,in particular and

specifically that ofFlint, are required to install and maintain corrosion control treatment for lead and copper water service systems.

28. In the absence ofcorrosion control treatment,lead levels in the water coming

from lead and copper based water systems will rise to unacceptable levels.

29. In connection with its administration ofplacing the Flint Water Plantinto operation using the Flint River as a primary source, LAN failed to demand or ensure the use of corrosion

control treatment chemicals even though the LCR required these actions so as to ensure lead free

drinking water.

30. The Auditor's Report also confirmed thatthe results ofthe first round ofwater

sampling tests disclosed lead levels in excess ofthe minimal action levels, i.e. 5 parts per billion

("PPb"). 31.

A Michigan Department ofHealth and Human services("DHHS")report on the

Blood Lead Level Test Results for children 6 years and younger living in Flint Zip Codes 4850148507,showed a significant and dangerous spike in the blood lead levels during the second and

third quarter on 2014.

32. In the summer of2014,the Flint area experienced a spike in Legionnaires'

Disease that resulted in 10 deaths in 18 months.

6

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 12 of 39 Pg ID 39
33. Within days after the April 25,2014 switch,Flint Defendants began receiving complaints from water users,including some or all ofthe Plaintiffs herein,that the water was cloudy and discolored in appearance and foul in taste and odor.
34. Within weeks after the April 25,2014 switch, water users,including some or all ofthe Plaintiffs herein, were reporting to the Flint authorities that they were experiencing hair loss, rashes, vomiting and other physical maladies.
35. Flint water users,having enjoyed decades ofsafe, clean and fresh water via the Detroit water system,knew almostimmediately after the switch to Flint River water that something was not right about this new water supply.
36. By August of2014,Flint water tested positive for E. coli. and several "boil water" advisories were issued by the City ofFlint through September of2014.
37. During the next eight(8)months,Flint water users expressed their concerns about water quality in multiple ways,including letters, e-mails and telephone calls to Flint and MDEQ officials,the media and through well publicized demonstrations on the streets ofFlint.
38. In August of2014,Flint violated the National Primary Drinking Water Regulations Maximum Contaminant Level("MCL")for E. Coli bacteria.
39. In September 2014, Flint again violated the National Primary Drinking Water Regulations for MCL.
40. In November of2014,LAN was on actual notice ofthe need to assess the factors contributing to high Trihalomethane("THHM")levels following the water source change.
41. Beginning almost immediately after the Flint River became the primary source of water for the Flint users, the MDEQ and Flint officials were aware of elevated and unlawful levels ofTrihalomethanes("TTHM").
7

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 13 of 39 Pg ID 40
42. After about 7 months ofelevated TTHM levels, Flint water users belatedly received a notice in January 2015 from the City ofFlint stating thatthe water was not in compliance with the Federal Safe Drinking Water Act because unlawful levels ofTTHMs.
43. In late 2014 or early 2015,a dramatic spike in elevated blood lead levels in Flint's youngest children in the third quarter of2014 was identified by the Michigan Department of Health and Human Services("MDHHS").
44. This aforementioned spike meant that by the third quarter of2014,the percent of Flint children with known elevated blood lead level tests rose from 2.5% to about 7%.
45. This upward spike coincided precisely with the exposure ofFlint's children to the toxic water ofthe Flint River,in their homes,schools and other public locations.
46. That the aforementioned spike occurred at the time ofthe exposure to the Flint River water, constituted clear arid certain notice that a major health emergency confronted the children of Flint.
47. In the summer of2014,a dramatic spike in.Legionnaires' disease occurred in Flint that resulted in 10 deaths in 18 months.
48. That the aforementioned spike occurred at the time ofthe exposure to the Flint River water and constituted clear and certain notice that a major health emergency confronted the children of Flint.
49. On or about August of2015,Dr. Mona Hanna-Attisha, a pediatrician from Hurley Hospital in Flint, produced a similar study showing a similar spike in elevated blood lead levels for the children ofFlint.
50. Another example ofthe irrefutable nature ofthe evidence that the water was unfit for human exposure and consumption was the highly publicized media report in October 2014
8

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 14 of 39 Pg ID 41
that General Motors refused to continue using Flint River water in its manufacturing facilities due to the highly corrosive nature ofthe water that was ruining its parts and production machinery.
51. On or about May 6,2015,employees from EPA Region 5 arrived in Flint and began sampling the water for elevated lead levels, which disclosed dangerously high lead levels.
52. The EPA also found lead levels from the Flint River twice that required in order to classify as hazardous waste.
53. On or about June 24,2015,EPA representative Miguel Del Toral wrote a detailed memo entitled "High Lead Levels in Flint, Michigan-Interim Report," outlining numerous dangers and hazards associated with the water being pumped from the Flint River,including unacceptable levels oflead.
54. According to Mr. Del Toral's memo,because Flint has failed to use the same chemical treatments for lead and copper after it made the switch in 2014,corroded plumbing was likely leaching lead("In the absence ofany corrosion control treatment,lead levels in drinking water can be expected to increase.")
55. During the spring and summer of2015,Professor Marc Edwards("Professor Edwards")and other experts from Virginia Tech tested 277 drinking water samples in Flint and found that 10% ofthe samples had lead levels of25 parts per billion(ppb),substantially in excess ofthe federal action level of15 ppb.
56. Professor Edwards was quoted as saying "I have never in my 25-year career seen such outrageously high levels going into another home in the United States."
57. Professor Edwards also determined that the Flint River water was 19 times more corrosive than the water pumped from Lake Huron by the Detroit water system and that without
9

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 15 of 39 Pg ID 42
corrosion control treatment,lead was leaching out from the lead based service lines at alarming rates.
58. On or about September 2,2015,Professor Edwards published the results ofhis studies described above.
59. In addition,Dr. Hanna-Attisha ofHurley Hospital demonstrated and publicly disclosed a dramatic and dangerous spike in elevated blood lead levels in a large cohort ofFlint children corresponding with the time ofexposure to the highly corrosive Flint River water. Her disturbing results were published in August 2015.
60. Also on September 29,2015,the Genesee County Health Department issued a "Public Health Advisory for People Using the Flint City Water Supply with the Flint River as the Source,"("Advisory"), which stated in pertinent part:"recent data provided by Hurley Hospital Researchers has indicated that a significant increase in blood lead levels has occurred in children since the switch to Flint River water. The County Health Officer has requested that the Michigan Department ofHealth and Human Services(MDHSS)provide the County specific data to support its claim that state data is more comprehensive and does not show a significant increase.
61. On or about October 8,2015,Flint's Eisenhower and Freeman Elementary Schools, along with Brownell/Holmes STEM Academies exceeded 15 ppb for lead -- the safety standard set by the federal government. Students and staff were ordered to drink bottled water only.
62. Among the other serious harm caused by the conduct alleged herein, the prolonged exposure ofthe highly corrosive water without adequate anti-corrosive agents has
10

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 16 of 39 Pg ID 43
irreparably damaged the approximately 15,000 sets oflead and copper plumbing throughout the City ofFlint, all ofwhich must now be replaced.
PROFESSIONAL NEGLIGENCE 63. Plaintiffs incorporate the preceding paragraphs as though fully stated herein. 64. LAN owed a duty to Plaintiffs, as residents and property owners in the City of Flint,to exercise that degree ofcare consistent with the greater degree ofknowledge and skill possessed by design professionals, as well as an ethical duty to report to public authorities the dangers posed to public health and property that would result from the failure to install a proper anti-corrosive treatment when using the Flint River as a primary source of drinking. 65. LAN also owed a duty to Plaintiffs to notify the proper authorities ofunethical or illegal practices ofothers whose actions or decisions posed threats to public health and property that would result from the failure to install a proper anti-corrosive treatment when using the Flint River as a primary source ofdrinking. 66. Plaintiffs had a right to and did rely upon LAN's professional expertise and ethical obligations in connection with LAN's administration of placing the Flint Water Plant into operation using the Flint River as a primary source. 67. LAN's duties to Plaintiffs included, but were not limited to, the duty to properly administer the placing the Flint Water Plant into operation using the Flint River as a primary source in such a manner that this would not endanger the health and property ofPlaintiffs,and take other actions consistent with the greater degree ofknowledge and skill possessed by design professionals, and the duty to report to public authorities the dangers posed to public health and property that would result from the failure to install a proper anti-corrosive treatment when using the Flint River as a primary source of drinking.
11

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 17 of 39 Pg ID 44
68. As a direct result ofLAN so negligently and carelessly administering the placing ofthe Flint Water Plant into operation using the Flint River as a primary source and failing to report to public authorities the dangers posed to public health and property that would result from the failure to install a proper anti-corrosive treatment when using the Flint River as a primary source of drinking, Plaintiffs and Plaintiff Class members have experienced serious and in some cases life threatening and irreversible bodily injury.
69. Plaintiffs and Plaintiff Class members have and will also incur substantial economic losses in the nature of medical expenses and lost wages.
70. Plaintiffs and Plaintiff Class members are also entitled to an award of noneconomic damages in the nature of pain and suffering, embarrassment, outrage, mental anguish, fear and mortification, and stress related physical symptoms such as sleepiness, gastro-intestinal discomfort, neuropathy and similar symptoms.
71. Finally, Plaintiffs and Plaintiff Class members have experienced property damage to the homes and places ofbusiness in the nature oflost property value and seek damages to remediate the permanent damage caused by the use of corrosive water without proper anticorrosive treatment.
RELIEF REQUESTED Accordingly,Plaintiffs request the following relieffrom the court:
a. An order certifying this case as a Class Action; b. An order for an award offull compensatory damages for those injuries and damages,including diminution ofthe value ofproperty values,sustained by class representatives and all class members; c. An order for an award ofactual reasonable attorney fees and litigation expenses;
12

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 18 of 39 Pg ID 45

d. An order for all such other reliefthe court deems reasonable,equitable and just under the circumstances.
Jury Trial Plaintiffs demand a trial by jury of all claims so triable.

Dated: January 25,2016

Respectfully submitted,
MCALPINE PC
By: Mark L. McAlpine Ted Peters(P40220) Adam T.Schnatz(P72049) 3201 University Drive, Suite 100 Auburn Hills, Michigan 48326 (248) 373-3700 mlmcalpine@mealpinepc.com tpeters@mcalpinepc.com atschnatz@mcalpinepc.com Attorneys for Plaintiffs

13

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 19 of 39 Pg ID 46

4
Approved, SCAO

Original - Court 1st copy - Defendant

2nd copy - Plaintiff 3rd copy - Return

STATE OF MICHIGAN
JUDICIAL DISTRICT
7th JUDICIAL CIRCUIT
COUNTY PROBATE
Court address
900 S.Saginaw Street, Flint, MI 48502

SUMMONS AND COMPLAINT

CASE NO. 16-106150-NM
Court telephone no.
(810) 257-3220

Plaintiffs name(s), address(es), and telephone no(s).

JENNIFER MASON,CARL ROGERS II,TERESA

v

SPRINGER,JEFFREY DUSHANE,DEBORAH CULVER,

TRISTIN HASSELL,ADAM DILL AND DAVID

YEOMAN on behalf of themselves and a class of all others

similarly situated,

Defendant's name(s), address(es), and telephone no(s).
Leo A.Daly Company c/o Resident Agent:Leo A.Daly,III 8600 Indian Hills Drive Omaha,NE 68114-0000

Plaintiffs attorney, bar no., address, and telephone no.
Mark L. McAlpine(P35583)John T. Peters,Jr.(P40200) McAlpine PC 3201 University Drive,Ste 100 Auburn Hills, MI 48326 T:(248)373-3700 F:(248) 373-3708

SUMMONS NOTICE TO THE DEFENDANT: In the name of the people of the State of Michigan you are notified: 1. You are being sued. 2. YOU HAVE21 DAYS after receiving thissummonsto file a written answer with the courtand serve a copy on the other party
ortakeotherlawfulaction withthecourt(28daysifyou wereserved by mailoryou wereserved outsidethisstate).(MCR 2.111[c)) 3. Ifyou do not answer ortake otheraction within the time allowed,judgment may be entered against you forthe reliefdemanded
in the complaint.

Issued

This summons expires

Court clerk

'This summons is invalid unless served on or before its expiration date. This document must be sealed by the seal of the court.

COMPLAINT Instruction: Thefollowingisinformation thatisrequired to bein thecaption ofeverycomplaintandisto becompleted by the plaintiff. Actualallegations and the claim forrelief mustbe stated on additional complaintpages and attached to this form.

u This is a business case in which all or part of the action includes a business or commercial dispute under MCL 600.8035.

Family Division Cases
0Thereis nootherpendingorresolved action within thejurisdiction ofthefamilydivision ofcircuitcourtinvolving thefamilyorfamily

members ofthe parties. u An action within thejurisdiction ofthe family division ofthe circuitcourtinvolving the family orfamily members ofthe parties has

been previouslyfiled in The action EJ remains

Court. C3 Is no longer pending. The docket number and the judge assigned to the action are:

Docket no.

Judge

Bar no.

General Civil Cases

0There is no other pending or resolved civil action arising outofthesametransaction or occurrence as alleged in the complaint.

ED A civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint has

been previously filed in

Court.

The action 0remains 0is no longer pending. The docket number and thejudge assigned to the action are:

Docket no.

Judge

Bar no.

VENUE
Plaintiff(s) residence (include city, township, or village)
Flint, Michigan
Place where action arose or business conducted
Flint, Michigan

Defendant(s) residence (include city, township, or village)
Omaha, NE

02/18/2016

Date

Signature of attorney/plainti

If you requirespecial accommodations to usethecourt becauseofa disability orifyou require aforeign guageinterpreterto help

you fully participate in court proceedings, please contact the court immediately to make arrangements.

MC01 (5/15) SUMMONS AND COMPLAINT MCR 2.102(B)(11), MCR 2.104, MCR 2.105, MCR 2.107, MCR 2.113(C)(2)(a),(b), MCR 3.206(A)

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 20 of 39 Pg ID 47

PROOF OF SERVICE

SUMMONS AND COMPLAINT Case No. 16-106150-NM

TO PROCESS SERVER: You are to serve the summons and complaint notlater than 91 daysfrom the date offiling orthe date ofexpiration on the orderforsecondsummons.You mustmakeandfile yourreturn with thecourtclerk. lfyou are unable tocomplete service you must retum this original and all copies to the court clerk.

CERTIFICATE/AFFIDAVITOF SERVICE/ NONSERVICE

u OFFICER CERTIFICATE

OR

l certify that l am a sheriff, deputy sheriff, bailiff, appointed

court officer, or attorneyfor a party(MCR 2.104[A][2]),and

that: (notarization not required)

u AFFIDAVIT OF PROCESS SERVER Being first duly sworn, I state that l am a legally competent adultwhois nota partyoran officerofa corporate party,and that: (notarization required)

u I served personally a copy of the summons and complaint,
u l served by registered or certified mail(copy of return receipt attached)a copy ofthe summons and complaint,
togetherwith
List all documents served with the Summons and Complaint

Defendant's name

Complete address(es) of service

on the defendant(s):
Day, date, time

have personally attempted toservethesummonsand complaint,together with any attachments,on thefollowing defendant(s) and have been unable to complete service.

Defendant's name

Complete address(es) of service

Day, date, time

l declare thatthe statements above are true to the bestof my information, knowledge,and belief.

Service fee $

Miles traveled Mileage fee Total fee

$

$

Signature Name (type or print)

Subscribed and sworn to before me on
Date
My commission expires:
Date
Notary public, State of Michigan, County of

Title
Signature'
Deputy court clerk/Notary public

ACKNOWLEDGMENT OF SERVICE

l acknowledge that l have received service of the summons and complaint, together with
Attachments

on
Day, date, time

Signature

on behalf of

County, Michigan.

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 21 of 39 Pg ID 48

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE

JENNIFER MASON,CARL ROGERS II, 1ERESA SPRINGER,JEFFREY DUSHANE, DEBORAH CULVER,DR.TRISTIN HASSELL, ADAM DILL,and DAVID YEOMAN on behalf ofthemselves and a class ofall others similarly situated,

Hon. Richard B. Yuille Case No. 16-106150-NM

Plaintiffs,

v.

LOCKWOOD,ANDREWS & NEWNAM,P.C.,a Michigan corporation,LOCKWOOD, ANDREWS & NEWNAM,INC., a Texas Corporation,and LEO A.DALY COMPANY,a Nebraska corporation,

Defendants.

Mark L.McAlpine(P35583) John T.Peters,Jr.(P40200) Adam T. Schnatz(P72049) MCALPINE PC 3201 University Drive, Suite 100 Auburn Hills, MI 48326 (248)373-3700 mlincalpine@mcalpinepc.com tpeters@mcalpinepc.com atschnatz@mcalpinepc.com Attorneys for Plaintiffs

FIRST AMENDED CLASS ACTION COMPLAINT Plaintiffs Jennifer Mason, Carl Rogers II, Teresa Springer, Jeffrey Dushane, Deborah Culver,Dr. Tristin Hassell,Adam Dill, and David Yeoman(collectively,"Plaintiffs" or"Plaintiff Class Representatives"), on behalfofthemselves and all other similarly-situated (the "Class" or

2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 22 of 39 Pg ID 49
"Class Members" as defined below), upon personal knowledge as to the facts pertaining to themselves, upon information and belief as to all other matters, and based upon the investigation of counsel, bring this class action for damages against Defendants Lockwood, Andrews & Newnam,P.C. LAN PC"), Lockwood, Andrews & Newnam,Inc. CLAN Inc.")(collectively, LAN PC and LAN Inc. shall be referred to as "LAN"), and Leo A. Daly Company ("LAD") (collectively, LAN and LAD shall be referred to as "Defendants"), based on the following allegations.
PARTIES,JURISDICTION AND VENUE 1. This lawsuit is brought as a proposed class action against Defendants for professional negligence in connection with their participation in the plan to use the Flint River as the primary source of drinking water for the City of Flint, Michigan ("Flint"). As a direct and proximate result ofDefendants' breaches,the residents ofFlint,from April25,2014to the present, have experienced and will continue to experience serious personal injury and property damage. 2. Plaintiffs' representatives, at all relevant times, were residents of Flint who, as individuals, parents of minors and as property owners, have been and continue to be exposed to highly dangerous conditions created and caused by Defendants'negligent administration ofa plan to place the Flint Water TreatmentPlant("FWTP")into full-time operation for drawing waterfrom the Flint River. 3. LAN PC is a Michigan professional corporation with its principal place ofbusiness located at 1311 S. Linden Road, Suite B, Flint, Michigan 48532. At that location, LAN PC held itselfoutto the world as a LAD company. Upon information and belief,LANPC wasincorporated in 2008 by LAN Inc.after it was retained to conduct studies and reports ofa new water supply that was being developed for Flint, Genesee County,Lapeer County and Sanilac County. Upon further
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information and belief,the vast majority ofthe services provided by LAN PC,at all relevant times, were conducted at LAN Inc.'s Chicago,Illinois location.
4. LAN Inc. is a Texas corporation with its principal place of business in Houston, Texas. At all relevant times,LAN Inc. conducted business in Genesee County,Michigan through LAN PC. Per its website,LAN Inc.'s Michigan office is located at 1311 S.Linden Road,Suite B, Flint, Michigan 48.532.
5. LAD is a Nebraska corporation with its principal place of business in Omaha, Nebraska.Per its website,LAD's"services are extended through[LAN Inc.]."
6. The amount in dispute is in excess of$25,000.00, exclusive ofcosts and attorney fees,and all ofthe parties have,upon information and belief, either resided or transacted business in Genesee County, Michigan, at all times relevant herein such that jurisdiction and venue are properly with this Court.
CLASS ALLEGATIONS 7. This action is brought bythe named Plaintiffs on behalfofthe Class who have been and continue to be exposed to highly dangerous conditions created and caused by Defendants' negligent and/or reckless administration ofa plan to place the FWTP into full-time operation using the Flint River as the primary water source, and reckless disregard ofthe safety and health ofthe citizens ofFlint as well as its own professional duties and obligations. 8. The number of injured individuals who have been exposed to and injured by the highly dangerous conditions (described more thoroughly throughout this pleading) is in the tens ofthousands. The number of Class Members is sufficiently numerous to make class action the most practical method for Plaintiffs to secure redress for injuries sustained by the Class Members.
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9. There are questions of law and fact raised by the claims set forth herein that are common to,and typical of,those raised by the Class Members that Plaintiffs seek to represent.
10. The violations oflaw and resulting harms alleged bythe named Plaintiffs are typical ofthe legal violations and harms suffered by all Class Members.
11. Plaintiff Class Representatives will fairly and adequately protect the interest ofthe Plaintiff Class Members. Plaintiffs' counsel are unaware of any conflicts ofinterest between the Plaintiff Class Representatives and absent Class Members with respect to the matters at issue in this litigation; the Plaintiff Class Representatives will vigorously prosecute the suit on behalf of the entire Class; and the Plaintiffs are represented by experienced counsel.
12. Plaintiffs are represented by attorneys with substantial experience and expertise in complex and class action litigation involving engineering firms and the duty of care.
13. Plaintiffs' attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the Class.
14. The maintenance of the action as a class action will be superior to other available methods ofadjudication and will promote the convenient administration ofjustice. Moreover,the prosecution ofseparate actions by individual members ofthe Class could result in inconsistent or varying adjudications with respect to individual members ofthe Class.
15. Defendants has acted or failed to act on grounds generally applicable to all Plaintiffs, necessitating legal relieffor the Class,including but not limited to an award ofdamages to fully compensate the Class for all ofthe damages it has sustained past, present and future.
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GENERAL ALLEGATIONS 16. The Flint River supplied Flint's drinking water for approximately 50 years until 1964. 17. As early as 1964, the US Geological Survey noted high levels of chloride in the Flint River. 18. From 1964 to 2014,Flint water users received their waterfrom Lake Huron via the Detroit Water and Sewerage Department("DWSD"). 19. During this 50-year span,the Flint water users enjoyed safe, clean,fresh water in their homes,businesses, hospitals and other places ofpublic services. 20. A 2001 report bythe Department ofNatural Resources noted that certain businesses along the Flint River had permits to discharge runofffrom industrial and mining activities as well as petroleum and gasoline cleanups. 21. In 2004,a technical assessment ofthe Flint River raised concerns about using the river as a source of drinking water. One of the key points from the "Source Water Assessment Report for the City of Flint Water Supply — Flint River Emergency Intake, prepared by the U.S. Geological Survey,the Michigan Department ofEnvironmental Quality("MDEQ")and the Flint Water Utilities Department, was that the Flint River was a very highly sensitive drinking water source that was susceptible to contamination. 22. In 2011, Flint government officials commissioned a study (or studies) by LAN to determine ifthe FlintRiver could be safely used by the city asthe primary source ofdrinking water for its more than 31,000 residents and users. One ofthose studies, entitled "Analysis ofthe Flint River asa Permanent Water Supplyfor the City ofFlint"(the"2011 Report"), which bore LAN's logo, was published in July of2011.
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23. Upon information and belief, this 2011 Report indicated that the water from the Flint River was highly corrosive and could not be used safely without an anti-corrosive agent to prevent lead, copper and other heavy metals from leaching into the water from the lead, copper and iron-based water lines.
24. In early 2013,City of Flint Emergency Manager Ed Kurtz(who was appointed to that position in or around Augustof2012)signed an agreement to switch Flint's primary drinking water source from the DWSD to the newly formed Karegnondi Water Authority("KWA"),which was scheduled to become operational sometime in 2016. Upon information and belief, Flint assumed it would continue to purchase its water from DWSD until the KWA became operational in 2016.
25. DWSD protested Flint joining the KWA and attempted to convince Flint to reconsider switching over to the KWA and continue purchasing its water from the DWSD. Flint declined. In April of 2013, DWSD gave Flint notice that their long-standing water agreement would terminate in April of2014.
26. On or about June 26,2013,Mr.Kurtz signed a resolution authorizing Flintto enter into a professional services contract with LAN for the administration of placing the FWTP into full-time operational use, which would draw water from the Flint River as its primary source of water until the completion ofthe KWA.
27. Flint formally retained LAN as the design engineer for improvements and upgrades to the FWTP, which would ultimately enable the FWTP to operate full-time and provide proper treatment to the water drawn from the Flint River.
28. Upon information and belief, there were no bids submitted by LAN or any other firm for this work,nor were any other firms considered for this work.
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29. On June 29, 2013, LAN met with representatives of Flint, representatives of the Genesee County Drain Commissioners Office and the MDEQ to discuss:
a. using the Flint River as a water source; b. the ability to perform the necessary upgrades to the FWTP; c. the ability to perform quality control; d. the ability for Flint to provide water to Genesee County; e. the ability to meet an April or May 2014 timeline; and f. developing a cost analysis. 30. According to incomplete meeting minutes,"the conversation was guided withfocus on engineering, regulatory, and quality aspects ..." ofthe items previously referenced, and the following determinations were made: a. the Flint River would be more difficult to treat, but was viable as a source; b. it was possible to engineer and construct the upgrades needed for the
treatment process; c. it was possible to perform quality control "with support from LAN
engineering which works with several water systems around the state, quality control could be addressed[;]" d. FWTP did not have the capacity to treat and distribute sufficient water to meetthe needs ofFlint and Genesee County;
e. there were many obstacles to overcome,but completion bythe April or May
2014 timeline was reachable; and f. the next steps were for LAN to present Flint with a proposal that would
include engineering, procurement, and construction needs for the project along with cost estimates. 31. Upgrading the FWTP would have its challenges. Since 1965,the FWTP served as a secondary and backup water supply system to the DWSD. Typically, a secondary supply for a public water system is expected to be needed only during emergency situations, and is normally designed for short term operation such as providing the average daily demand for only a few days.
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2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 28 of 39 Pg ID 55
32. Uponinformation and belief,the FWTP was previously upgraded in or around2004 in order to allow it to operate for an extended short-term period (i.e., approximately 6 weeks) because of a perceived high risk that the DWSD supply would fail and remain out of service for an extended duration.
33. Due to the aforementioned 2013 agreement,theFWTP needed to be upgraded again to operate on a full-time basis, otherwise it would be unable to provide the citizens ofFlint with sufficient quantities of water.
34. In April of 2014, LAN, Flint and DEQ officials addressed and discussed optimization for lead, and it was determined that having more data was advisable before implementing an optimization method.
35. LAN knew,ifnot recommended,that the FWTP would begin drawing water from the Flint River later that month that would not be treated with anti-corrosive measures.
36. The improvement and upgrade plans to the FWTP were approved by MDEQ in April of2014.
37. On or about April 25,2014,Flint formally ceased obtaining waterfrom the DWSD and began drawing waterfrom the Flint River through the FW1P.
38. Since LAN was involved in determining whether the Flint River could be safely used as a water source, it was well aware that, without proper anti-corrosive treatment, drawing water from the Flint River and using it as the primary source of drinking water would create a condition dangerous to the health and welfare ofthe community.
39. Pursuant to the Federal Safe Drinking Water Lead and Copper Rule (the "LCR"), all large public water systems, including Flint, are required to install and maintain corrosion control treatment for lead and copper water service systems. In the absence of such corrosion
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2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 29 of 39 Pg ID 56
control treatment,lead levels in water traveling through a lead and copper-based water system will be present at unacceptable and even dangerous levels.
40. LAN failed to ensure that the upgraded FWTP would treat the water drawn from the Flint River with the proper anti-corrosive chemicals before it was released for consumption and use into the community, which is contrary to water quality standards, the standard ofcare of similarly-situated and experienced engineers, and common sense.
41. At all relevant times,LAN wasfully aware that, as a consequence ofany failure to operate the FWTP by using the required and necessary anti-corrosive agents in the water drawn from the Flint River, or failure to report the non-use ofthese agents to the proper authorities, the Plaintiffs and the entire Class would be exposed to toxic levels oflead and other dangerous and unsafe metals and chemidals.
42. Despite these requirements, corrosion control chemicals were not used when the FWTP began operation and drawing water from the Flint River.
43. LAN either failed to recommend and/or design for the use of corrosion control treatment chemicals during the full-time operation ofthe FWTP when it drew waterfrom the Flint River, or it failed to demand or ensure the use of corrosion control treatment chemicals once the upgraded FWTP was placed into full-time operation.
44. The danger to the public in not using anti-corrosive treatments when using water from the Flint River as the primary source was or should have been well-known to LAN,as such dangers are well-known within the water treatment community.
45. Moreover,the potential consequences in endangering the public health as a result ofnot using anti-corrosive trealuients when using water from the Flint River as the primary source were or should have been well-known and foreseeable to LAN,an engineeringfirm that,according
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2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 30 of 39 Pg ID 57
to its website,is a"national leader in the heavy civil infrastructure engineering industry,""one of the most respected engineering firms in the United States today," and "a recognized leader in the industry with a rich history of serving a diverse group of heavy civil infrastructure clients across the country."
46. The potential consequences were seemingly,ifnotrecklessly,ignored or notraised with the appropriate officials by LAN.
47. It came(or should have come)as no surprise to a highly reputable civil engineering firm that, within days of the switch, Flint officials began receiving complaints from water users, including some or all of the Plaintiffs herein, that the water was cloudy and discolored in appearance and foul in taste and odor.
48. Within weeks following the April 25,2014 switch, water users,including some or all ofthe Plaintiffs herein,were reporting to Flint authorities that they were experiencing hair loss, rashes, vomiting and other physical maladies.
49. Flint water users, having enjoyed decades of safe, clean and fresh water via the DWSD,knew almost immediately after the switch to Flint River water that something was not right about this new water supply.
50. During the next 8 months, Flint water users expressed their concerns about water qualityin multiple ways,including letters,e-mails and telephone callsto Flint and MDEQ officials, the media and through well-publicized demonstrations on the streets ofFlint.
51. But the residents of Flint — unlike LAN — were unaware of the specific dangers lurking in the water that was being used and distributed by the FWTP.
52. For example,by August of2014,Flint watertested positive for E.coli., and several "boil water" advisories were issued by Flint through September of 2014. As a result, Flint was
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2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 31 of 39 Pg ID 58
deemed to have violated the National Primary Drinking Water Regulations Maximum Contaminant Level("MCL")for E. coli bacteria on at leasttwo separate occasions.
53. Additionally,unsafe levels ofTrihalomethane("TTHM")were presentinthe water. Beginning almost immediately after the Flint River became the primary source of water for Flint residents, the MDEQ and Flint officials were aware or should have been aware of elevated and unlawful levels ofTTHM.
54. By virtue ofits involvement with the FWTP and its continuous work for Flint,LAN likewise knew or should have known ofthe elevated and unlawful levels ofTTHM.
55. In October of2014,General Motors refused to continue using water from the Flint River in its manufacturing facilities clue to the highly corrosive nature ofthe water that, in turn, was ruining its parts and production machinery. General Motors believed that the corrosive nature ofthe water was due to high chloride levels.
56. In November of2014,LAN was on actual notice ofthe need to assess the factors contributing to high TTHM levels following the water source change because LAN was engaged to evaluate this issue by Flint and provide a report ofits findings, which it did in August of2015.
57. After about7 months ofelevated TTHM levels,Flint water users belatedly received a notice in January of2015 stating that their water was not in compliance with the Federal Safe Drinking Water Act because unlawful levels ofTTHM.
58. The biggest danger was the high level oflead in the water. The residents ofFlint, including Plaintiffs and the Class Members, initially had no knowledge that the water contained dangerous levels oflead, even though LAN knew or should have known by virtue ofits history and involvement with the FWTP,as well as its vast experience with civil engineering relating to water systems.
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2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 32 of 39 Pg ID 59
59. In late 2014 or early 2015, a study by the Michigan Department of Health and Human Services("MDHHS")was published that showed a dramatic spike in elevated blood lead levels in Flint's youngest children. The testing occurred in the Third Quarter of2014.
60. This aforementioned spike meant that,by the Third Quarter of2014,the percent of Flint children with known elevated blood lead level tests rose from 2.5% to about 7%.
61. This upward spike coincided precisely with the exposure of Flint's children to the toxic water ofthe untreated Flint River,in their homes,schools and other public locations.
62. That the aforementioned spike occurred at the time of the exposure to the Flint River water constituted clear and certain notice that a major health emergency confronted the children ofFlint.
63. Furthermore, a dramatic spike in Legionnaires' disease occurred in Flint that, upon information and belief, resulted in 10 deaths in 18 months. This spike in Legionnaires' disease, upon information and belief, is attributable, in whole or in part, to the presence of harmful chemicals and substances in the drinking water.
64. On or about May6,2015,employeesfrom EPA Region 5 arrived in Flint and began sampling the water for elevated lead levels, which disclosed dangerously high lead levels.
65. The EPA also found that lead levels from the Flint River were twice the limit that would classify Flint River water as hazardous waste.
66. On or about June 24,2015,EPA representative Miguel Del Toral wrote a detailed memo entitled"High LeadLevels in Flint, Michigan-Interim Report,"outlining numerousdangers and hazards associated with the water being pumped from the Flint River,including unacceptable levels of lead. According to Mr. Del Toral's memo, because there had been a failure to use the same chemical treatments for lead and copper after Flint made the switch in 2014, corroded
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2:16-cv-10663-MOB-EAS Doc # 1-1 Filed 02/23/16 Pg 33 of 39 Pg ID 60
plumbing was likely leaching lead ("In the absence ofany corrosion control treatment,lead levels in drinking water can be expected to increase') and making its way to the water taps found in the homes ofFlint's residents,including the homes ofthe Plaintiffs and the Class Members.
67. During the spring and summer of 2015, Professor Marc Edwards ("Professor Edwards")and other experts from Virginia Polytechnic Institute and State University(commonly known as "Virginia Tech")tested 277 drinking water samples in Flint and found that 10% ofthe samples had lead levels of25 parts per billion(ppb), substantially in excess ofthe federal action level of 15 ppb.
68. Professor Edwards was quoted as saying "1 have never in my 25-year career seen such outrageously high levels going into another home in the United States."
69. Professor Edwards also determined that water from the Flint River was 19 times more corrosive than the water pumped from Lake Huron bythe DWSD,and that without corrosion control treatment, lead was leaching out from the lead-based service lines at alarming rates and finding its way to the homes of Flint's residents, including but not limited to the homes of the Plaintiffs.
70. Professor Edwards has stated that the lead leaching into the water was predictable because ofthe chloride content in the water, but that he"didn'tsee anything that proper treatment couldn't render potable."
71. On or about September 2, 2015, Professor Edwards published the results of his studies described above.
72. At around the same time, Dr. Hanna-Attisha, a pediatrician at Hurley Hospital demonstrated and publicly disclosed a dramatic and dangerous spike in elevated blood lead levels in a large cohort of Flint children corresponding with the time of exposure to the highly corrosive
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Flint River water. She produced her study evidencing these elevated blood lead levels on or about August of2015.
73. On or about September 29,2015,the Genesee County Health Department issued a "Public Health Advisory for People Using the Flint City Water Supply with the Flint River as the Source,"(the"Advisory"),which stated in pertinentpart:"recent data provided by Hurley Hospital Researchers has indicated that a significant increase in blood lead levels has occurred in children since the switch to Flint River water."
74. On or about October 8,2015,Flint's Eisenhower and Freeman Elementary Schools, along with Brownell and Holmes STEM Academies,exceeded 15 ppb for lead — the safety standard set forth by the Federal Government. Students and staff were ordered to drink bottled water only.
75. Properties were also heavily impacted.For example,the prolonged exposure ofthe highly corrosive water without adequate anti-corrosive agents may have irreparably damaged lead and copper plumbing throughout Flint, all of which must now be repaired or replaced.
76. In February of2016,the DetroitFree Press reported on the sharp decline in property values as a result of the water crisis in Flint. According to the article, certain individuals that specialize in property tax matters estimate that the property values in Flint, due to the water crisis, will drop as much as 25%. In at least one instance, property value(s) were found to be 75% less than pre-exposure levels.
77. According to this DetroitFree Press article,Eric Dean Morse,the president ofFlintbased Allied Real Estate Appraisers, indicated that lenders are "already skittish about lending in Flint..." and that "[e]ight months ago [it] was a completely different market than what's going on now."
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78. In February of2016,Charles"Charlie LeDuff,an on-airjournalist for Detroit Fox affiliate WJBK, published a TV spot relating to LAN's role in the so-called Flint Water Crisis. According to the TV spot, when Mr. LeDuff went to LAN's Flint, Michigan office, it was empty and looked abandoned,even though Flint recently retained LAN for connecting the FWTP to the KWA.
79. There is an amalgamation of interests, activities and the roles of LAN and LAD that blur the legal distinction between the corporations that include, but are not limited to:
a. LAD and LAN have interlocking officers and directors. For example,LAN and LAD share the same executive personnel — ChiefExecutive Officer Leo A.Daly III and President Dennis W.Petersen — who,upon information and belief, control and direct the companies as one.
b. LAD and LAN share offices in Houston, Texas. c. LAN holds itselfout to the world as a LAD company. d. LAD'S website homepage contains the LAN logo and a link to the LAN
website. e. LAN holds itself out to world as "A Leo A. Daly Company" on LAN's
website, reports, and even on the buildings where its offices are located (including its office in Flint). f the Terms and Conditions of Use,Privacy Statement on the LAD website indicate that it and LAN are not separate and distinct entities by making joint assertions such as their intellectual property rights and warranty disclaimers, which explicitly declare that "'LEO A DALY','Lockwood Andrews & Newnam', and 'LAN' are trademarks of Leo A. Daly Company."
g. LAD'S "services are extended through Lockwood, Andrews & Newnam,
Inc.(LAN),a Leo A.Daly Company." 80. Upon information and belief, LAN is a subsidiary of LAD, which exerts a degree of control over LAD greater than what is normally associated with common ownership and directorship, such that LAN exists as a separate entity from LAD in name only. Upon further
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information and belief, LAN is totally reliant upon LAD for direction with regard to all critical aspects ofthe issues giving rise to this lawsuit.
81. Upon information and belief, because LAN does not manifest separate corporate interests from those of LAD and functions solely to achieve the corporate purposes of LAD, retention of their separate corporate personalities and identities would promote injustice in the context ofthis lawsuit.
82. Dueto this amalgamation ofinterest,activities and roles,LAD should be held liable for anyjudgment entered against LAN and in favor ofthe Plaintiffs.
PROFESSIONAL NEGLIGENCE 83. Plaintiffs incorporate the preceding paragraphs as though fully stated herein. 84. Defendants owed a duty to Plaintiffs, as residents and property owners in the City ofFlint, to exercise that degree ofcare consistent with the greater degree ofknowledge and skill possessed by design professionals, as well as an ethical duty to report to public authorities the dangers posed to public health and property that would result from the failure to install and/or operate a proper anti-corrosive treatment when using the Flint River as a primary source of drinking. 85. Defendants also owed a duty to Plaintiffs to notify the proper authorities of unethical or illegal practices of others whose actions or decisions posed threats to public health and property that would result from the failure to install and/or operate a proper anti-corrosive treatment when using the Flint River as a primary source of drinking. 86. Plaintiffs had a right to and did rely upon Defendants' professional expertise and ethical obligations in connection with Defendants' administration ofplacing the Flint Water Plant into operation using the Flint River as a primary source.
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87. Defendants' duties to Plaintiffs included, but were not limited to, the duty to properly administer the placing the FWTP into operation using the Flint River as a primary source, to do so in such a manner that would not endanger the health and property of Plaintiffs and Class Members,take other actions consistent with the greater degree ofknowledge and skill possessed by design professionals, and/or the duty to report to public authorities the dangers posed to public health and propertythat would resultfrom the failure to install and/or provide proper anti-corrosive treatment when using the Flint River as a primary source ofdrinking.
88. There is also an inference that Defendants breached their collective duties to Plaintiffs and the Class Members since the spike in lead levels does not normally occur unless water is not properly treated,such as the non-use ofanti-corrosion tea 'lents in providing finished water drawn from a water source and transported through a pipe system known or should have been known to require the use of such anti-corrosion treatments.
89. As a direct result of Defendants' so negligently, carelessly and/or recklessly administering the placing of the FWTP into operation using the Flint River as a primary source and/or failing to report to public authorities the dangers posed to public health and property that would result from the failure to install and/or provide proper anti-corrosive treatment when using the Flint River as a primary source of drinking, Plaintiffs and Class Members have experienced serious and in some cases life-threatening and irreversible bodily injury.
90. Plaintiffs and Class Members have and will also incur substantial economic losses including but not limited to medical expenses and lost wages.
91. Plaintiffs and Plaintiff Class Members are also entitled to an award of noneconomic and/or exemplary damages in the nature of pain and suffering, embarrassment, outrage, mental anguish, fear, sense of insult, indignity, humiliation and mortification, and stress related
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physical symptoms such as sleepiness, gastro-intestinal discomfort, neuropathy and similar symptoms.
92. Additionally, Plaintiffs and Plaintiff Class Members have experienced property damage to the homes and places ofbusiness in the nature oflost property value(due to both the need to repair their property and the loss in market value oftheir property given the stigma attached to the Flint area due to the massive regular media reporting of the lead contamination resulting from Defendants' negligence) and seek damages to remediate the permanent damage caused by the use ofcorrosive water without proper anti-corrosive treatment.
RELIEF REQUESTED Accordingly,Plaintiffs requestthe following relieffrom the court: a. An order certifying this case as a Class Action; b. An order for an award of full compensatory damages for those injuries and
damages, including diminution of property values, sustained by Class Representatives and all Class Members; c. An order for exemplary damages; d. An order for an award of actual reasonable attorneys' fees and litigation expenses; e. An order for all such other relief the court deems reasonable, equitable and just under the circumstances.
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JURY TRIAL Plaintiffs demand a trial byjury ofall claims so triable.

Dated: February 18,2016

Respectfully submitted,
MCALPINE PC
By: Mark L. McAlpine(P John T.Peters(P40220) Adam T. Schnatz(P72049) 3201 University Drive, Suite 100 Auburn Hills, Michigan 48326 (248) 373-3700 mlmcalpine@mcalpinepc.com tpeters@mcalpinepc.com atschnatz Lrncalpinepc.com Attorneys for Plaintiffs

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