United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 19-2072

___________________________ 

John C. Kitchin; North West Auto Body; Mary Menke, on behalf of themselves 

and all others similarly situated

 Plaintiffs - Appellees

v.

Bridgeton Landfill, LLC; Republic Services, Inc.; Allied Services; Rock Road 

Industries, Inc.

 Defendants - Appellants

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________ 

Submitted: January 14, 2021

Filed: July 8, 2021

____________

Before GRUENDER, BENTON, and STRAS, Circuit Judges.

____________

GRUENDER, Circuit Judge.

Bridgeton Landfill, LLC; Republic Services, Inc.; and Allied Services, LLC

(“Appellants”) challenge the district court’s decision to remand this removed action 

to state court under the local-controversy exception to the Class Action Fairness Act

of 2005 (“CAFA”). See 28 U.S.C. § 1332(d)(4)(A). We reverse. 
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I.

At first in connection with the Manhattan Project during World War II and 

then for the federal government after the war, a government contractor refined 

uranium at a facility in downtown St. Louis, Missouri in the 1940s and 1950s.

1

 

Unsurprisingly, this activity created radioactive waste. Accordingly, the Manhattan 

Project acquired a tract of land near the present-day St. Louis Lambert International 

Airport in St. Louis County to store the waste. The Cotter Corporation (which is not 

a party in this action) later acquired some of this waste, and in 1973 it dumped more 

than 46,000 tons of a soil-and-radioactive-waste mixture at the West Lake Landfill 

in Bridgeton, Missouri. That soil-waste mixture was then used as cover for 

municipal refuse dumped in the landfill. In 1990, the Environmental Protection 

Agency (“EPA”) placed the West Lake Landfill on the Superfund National Priorities 

List for site investigation and cleanup. See 42 U.S.C. § 9605. 

Since 1995, John C. Kitchin, Jr., has owned property in Bridgeton, Missouri

adjacent to the West Lake Landfill, where his family owns and operates the North 

West Auto Body Company. Mary Menke also owns property in Bridgeton, Missouri

near the landfill. After learning in 2017 and 2018 that their properties were 

contaminated with radioactive material, Kitchin, North West Auto Body Company, 

and Menke (“Plaintiffs”) filed a class-action complaint in Missouri state court 

against Bridgeton Landfill, LLC; Republic Services, Inc.; Allied Services, LLC; and 

Rock Road Industries, Inc. (“Defendants”). In their complaint, Plaintiffs alleged that 

Defendants “owned and/or operated” the West Lake Landfill and were responsible 

for the contamination of Plaintiffs’ property, which Plaintiffs claimed occurred due 

to Defendants’ allegedly improper acceptance and handling of radioactive waste at 

the landfill. Plaintiffs sought to represent two different subclasses consisting of 

Missouri citizens who either owned or resided on property within an eleven-squaremile region around the West Lake Landfill. The complaint asserted seven state-law 

1

The factual background in the first two paragraphs here is taken from the 

complaint and, where the complaint is vague, from Appellants’ notice of removal.
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tort claims and sought compensatory damages, punitive damages, and injunctive 

relief. 

It is undisputed here that, of the Defendants, only Rock Road Industries was 

a citizen of Missouri at the time Plaintiffs filed their complaint. Shortly after 

Plaintiffs filed their complaint, however, Rock Road Industries merged into 

Bridgeton Landfill, with Bridgeton Landfill being the surviving entity.

Appellants then removed the action to federal court. As grounds for removal, 

Appellants claimed that federal-question jurisdiction existed under the PriceAnderson Act (“PAA”), 42 U.S.C. § 2011 et seq., as well as the Comprehensive 

Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 

§ 9601 et seq., and they asserted that diversity jurisdiction existed under CAFA, 28 

U.S.C. § 1332(d)(2). Plaintiffs moved to remand, arguing that their complaint did 

not trigger federal-question jurisdiction under either the PAA or CERCLA and that 

the district court had to “decline to exercise [CAFA] jurisdiction” because CAFA’s 

local-controversy exception applied. See 28 U.S.C. § 1332(d)(4). The district court 

agreed, concluding that federal-question jurisdiction did not exist and that the localcontroversy exception applied, so it granted Plaintiffs’ motion to remand. On 

appeal, Appellants challenge the district court’s application of the local-controversy

exception.

II.

Before proceeding to the merits, first we must address Plaintiffs’ claim that 

we lack jurisdiction over this appeal. See, e.g., Arnold Crossroads, L.L.C. v. Gander 

Mountain Co., 751 F.3d 935, 938 (8th Cir. 2014) (“Our first consideration on review 

is whether we have appellate jurisdiction over [the defendant’s] appeal of the district 

court’s remand order.”). Under 28 U.S.C. § 1291, we typically have appellate 

jurisdiction over final decisions and certain collateral orders of the district courts. 

See Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994). Apparently

presuming that the district court’s remand order is not a final decision, Plaintiffs 
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argue that we lack appellate jurisdiction under § 1291 because the remand order is 

not an appealable collateral order. See Quackenbush v. Allstate Ins., 517 U.S. 706, 

712 (1996) (discussing the collateral-order doctrine). Seemingly in the alternative,

they also contend that 28 U.S.C. § 1453(c), a CAFA-specific grant of permissive 

appellate jurisdiction over remand orders, was Appellants’ “only . . . pathway for 

appellate review” of the district court’s remand order, which we closed off when we 

previously denied Appellants permission to appeal under § 1453(c). 

Our precedent forecloses these arguments. In Jacks v. Meridian Resource 

Co., we held that a remand order was both “final and appealable as a collateral order 

under § 1291” insofar as it was based on the district court’s determination that the 

local-controversy exception applied. 701 F.3d 1224, 1229 (8th Cir. 2012) (citing 

Quackenbush, 517 U.S. at 711-14). And, after recognizing that we had previously 

denied the appellants permission to appeal under § 1453(c), we nevertheless 

proceeded to address their separately filed § 1291 appeal, concluding that we had 

jurisdiction under § 1291 to review the district court’s application of the localcontroversy exception. Id. at 1128 n.2, 1229; see also Hunter v. City of Montgomery, 

859 F.3d 1329, 1334 & n.3 (11th Cir. 2017) (explaining that § 1291 provides “an 

alternative basis for appellate jurisdiction” in addition to § 1453(c) to review remand 

orders based on CAFA’s exceptions). Therefore, Jacks provides that we have 

jurisdiction under § 1291 over this appeal. 

Accordingly, we proceed to the merits.

III.

The sole issue on appeal is whether CAFA’s local-controversy exception

requires remand in this case, as the district court found. We review this issue de 

novo. Graphic Commc’ns Local 1B Health & Welfare Fund A v. CVS Caremark 

Corp., 636 F.3d 971, 973 (8th Cir. 2011); Opelousas Gen. Hosp. Auth. v. FairPay 

Sols., Inc., 655 F.3d 358, 360 (5th Cir. 2011).
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CAFA gives federal district courts subject-matter jurisdiction over class

actions like this one, where the parties are minimally diverse (meaning any class 

member and any defendant are citizens of different states), all proposed plaintiff 

classes include at least 100 members in total, and the amount in controversy exceeds 

$5,000,000. See Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 

2010) (citing 28 U.S.C. § 1332(d)). Under CAFA’s local-controversy exception, 

however, a federal district court “shall decline to exercise jurisdiction”:

(i) over a class action in which— 

(I) greater than two-thirds of the members of all proposed 

plaintiff classes in the aggregate are citizens of the State in 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)(A). 

Although the exception is an abstention doctrine rather than a jurisdictional

rule, Graphic Commc’ns, 636 F.3d at 973, it is mandatory, Westerfeld, 621 F.3d at 

822. The party seeking remand on this basis has the burden to establish that the 

exception applies. Westerfeld, 621 F.3d at 822. And, given that the exception’s 

provisions are listed in the conjunctive, see Erdahl v. Comm’r, 930 F.2d 585, 591 

n.8 (8th Cir. 1991), the proponent of remand must show that each provision is met 

in order to trigger mandatory abstention, see, e.g., Atwood v. Peterson, 936 F.3d 835, 
-6- 

841 & n.5 (8th Cir. 2019) (per curiam); Opelousas, 655 F.3d at 361; Coleman v. 

Estes Express Lines, Inc., 631 F.3d 1010, 1013 (9th Cir. 2011). In considering 

whether the party seeking remand has met this burden, we must bear in mind that 

the “language and structure of CAFA” indicate that Congress contemplated broad 

federal court jurisdiction, see Westerfeld, 621 F.3d at 822, and that the localcontroversy exception is a “narrow,” nonjurisdictional exception to CAFA’s grant 

of jurisdiction, see Hargett v. RevClaims, LLC, 854 F.3d 962, 965 (8th Cir. 2017); 

Graphic Commc’ns, 636 F.3d at 973. Thus, “any doubt about the applicability of 

CAFA’s local-controversy exception” must be resolved against the party seeking

remand and in favor of retaining jurisdiction over the case. Westerfeld, 621 F.3d at 

823. After all, “federal courts ‘have a strict duty to exercise the jurisdiction that is 

conferred upon them by Congress,’” abstention is an “‘extraordinary and narrow 

exception’ to that duty,” and thus “only the ‘clearest of justifications’ will justify 

abstention.” Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 397 (6th 

Cir. 2016) (Kethledge, J., dissenting) (quoting first Quackenbush, 517 U.S. at 716, 

then Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 

(1976), then Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002)) 

(discussing the local-controversy exception).

Appellants argue that Plaintiffs failed to show that any subpart of 

§ 1332(d)(4)(A)(i)(II)—the significant-relief requirement (subpart (aa)), the 

significant-basis requirement (subpart (bb)), or the local-defendant requirement 

(subpart (cc))—is met in this case. For the following reasons, we agree that Plaintiffs 

failed to carry their burden to show that the conduct of Rock Road Industries—the 

only Missouri-citizen defendant and thus the only possible “local defendant” for 

purposes of these requirements—“forms a significant basis for the claims asserted” 

in the complaint. See § 1332(d)(4)(A)(i)(II)(bb).2

2

As this conclusion suffices to reverse, we do not address whether Plaintiffs 

established that they sought significant relief from Rock Road Industries or that the 

now-nonexistent Rock Road Industries “is” a Missouri citizen for purposes of the 

exception. See, e.g., Atwood, 936 F.3d at 841 & n.5.
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A. 

Under the significant-basis requirement, the party seeking remand must show 

that a local defendant’s “alleged conduct forms a significant basis for the claims 

asserted by the proposed plaintiff class.” § 1332(d)(4)(A)(i)(II)(bb). The district 

court observed that Plaintiffs alleged in their complaint that Defendants “all engaged 

in the same conduct” that caused Plaintiffs’ claimed injuries, and it concluded that 

these allegations demonstrated that Rock Road Industries’ conduct forms a 

significant basis for Plaintiffs’ claims. We agree that, with rare exception, see infra

Section III.B., Plaintiffs simply alleged that “Defendants” engaged in conduct 

causing Plaintiffs’ injuries without identifying specific acts of each defendant or 

otherwise parsing out in any meaningful way Rock Road Industries’ particular, 

injury-causing conduct. But we disagree that these collective allegations against 

Defendants suffice to show that Rock Road Industries’ conduct meets the 

significant-basis requirement.

 “CAFA itself does not describe the type or character of conduct that would 

form a ‘significant basis’ of plaintiffs’ claims . . . .” Woods v. Standard Ins., 771 

F.3d 1257, 1265 (10th Cir. 2014). That said, in Westerfeld, we adopted the Third 

Circuit’s comparative approach to analyzing this issue. 621 F.3d at 825 (following 

Kaufman v. Allstate N.J. Ins., 561 F.3d 144 (3d Cir. 2009)). In Kaufman, the Third 

Circuit reasoned that, “[i]n relating the local defendant’s alleged conduct to all the 

claims asserted in the action, the significant basis provision effectively calls for 

comparing the local defendant’s alleged conduct to the alleged conduct of all the 

Defendants.” 561 F.3d at 156. Thus, deciding whether the significant-basis 

requirement is met “requires a substantive analysis comparing the local defendant’s 

alleged conduct to the alleged conduct of all the Defendants.” Id. Given the plain 

meaning of “significant,” this comparative approach requires that the party seeking 

remand show that the local defendant’s conduct is “an important ground for the 

asserted claims in view of the alleged conduct of all the Defendants.” Id. at 157; see 

also “Significant,” Black’s Law Dictionary (11th ed. 2019) (defining “significant” 

to mean “[o]f special importance; momentous”).
-8- 

Since the time we followed Kaufman in Westerfeld, other circuits have done 

the same. E.g., Mason, 842 F.3d at 395-96 (majority opinion); Benko v. Quality 

Loan Serv. Corp., 789 F.3d 1111, 1118 (9th Cir. 2015); Woods, 771 F.3d at 1266; 

Opelousas, 655 F.3d at 361. Even so, courts applying this approach have split 

regarding what it requires. Some courts, like the district court here, have adopted 

the view that allegations that the local and nonlocal defendants “all engaged in the 

same conduct” suffice to show that the local defendant’s conduct meets the 

significant-basis requirement. See, e.g., City of O’Fallon v. CenturyLink, Inc., 930 

F. Supp. 2d 1035, 1049-51 (E.D. Mo. 2013) (citing Coleman, 631 F.3d at 1020). 

In Atwood, however, we joined a number of courts taking the opposite view 

and found that a complaint that did “not allege any substantive distinctions between 

the conduct” of the local and nonlocal defendants failed to “indicate whether the 

local defendants’ alleged conduct is ‘an important ground for the asserted claims in 

view of the alleged conduct of all the Defendants.’” 936 F.3d at 840 (quoting 

Westerfeld, 621 F.3d at 825); see also Opelousas, 655 F.3d at 359, 362-63 (finding 

that the significant-basis requirement was not met where “nothing in the complaint 

distinguishe[d] the conduct of [the local defendant] from the conduct of the other 

defendants” and requiring “more detailed allegations or extrinsic evidence detailing 

the local defendant’s conduct in relation to the out-of-state defendants” to meet the 

requirement); accord White Knight Diner, LLC v. Arb. Forums, Inc., No. 4:17-CV02406 JAR, 2018 WL 398401, at *5 (E.D. Mo. Jan. 12, 2018); Johnson v. Courtyard 

Rehab. & Health Ctr., LLC, No. 17-CV-01053, 2018 WL 4183246, at *4-5 (W.D. 

Ark. Jan. 8, 2018); Green v. Skyline Highland Holdings LLC, No. 4:17-CV-00534 

BSM, 2017 WL 6001498, at *3 (E.D. Ark. Dec. 4, 2017); cf. Mason, 842 F.3d at 

399-400 (Kethledge, J., dissenting) (asserting that the plaintiffs’ allegations, in 

which the local and nonlocal defendant were referred to jointly by a collective noun 

that was “the subject of every verb describing conduct allegedly forming the basis 

of the plaintiffs’ claims,” did not satisfy the significant-basis requirement); Evans v. 

Walter Indus., Inc., 449 F.3d 1159, 1167 (11th Cir. 2006) (finding that the 

significant-basis requirement was not met because the evidence proffered to make 
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this showing gave “no insight” into the local defendant’s comparative “role in the 

alleged contamination”). Under Atwood, “CAFA removal is not foreclosed by [a] 

complaint’s conclusory allegations that the local defendants engaged in the same 

conduct as the [nonlocal] defendant.” 936 F.3d at 840-41 (disagreeing with the 

“rulings to the contrary” in Coleman, 631 F.3d 1010). 

Thus, following Atwood, the district court’s reasoning—that Plaintiffs’

allegations of how Defendants “all engaged in the same conduct” suffice to satisfy 

the significant-basis requirement—contravenes the law of this circuit. If “nothing 

in the complaint distinguishes the conduct of [Rock Road Industries] from the 

conduct of the other defendants,” Opelousas, 655 F.3d at 362, then the allegations 

in the complaint do not satisfy the significant-basis requirement. Such collective

allegations leave “doubt” about the comparative significance of Rock Road 

Industries’ conduct, preventing remand under the local-controversy exception. See 

Westerfeld, 621 F.3d at 823.

B. 

Besides defending the district court’s reasoning, Plaintiffs also point out that 

they “do make different allegations” about Rock Road Industries’ conduct compared 

to the other defendants’ conduct. They call our attention to four sentences in three 

paragraphs of their 199-paragraph complaint that specifically mention Rock Road 

Industries, and they contend that these allegations suffice to establish that Rock Road 

Industries’ conduct is “significant” for CAFA purposes. We disagree.

The first allegation is that “Rock Road Industries, Inc. . . . owned or owns the 

West Lake Landfill.” But in corresponding allegations about the other defendants,

Plaintiffs alleged that Bridgeton Landfill also owns the West Lake Landfill; that 

Allied Services “operates . . . [the] West Lake Landfill[]”; and that Republic 

Services “owns, oversees, and directs the environmental decisions and conduct” of

the other three defendants “and operates the . . . West Lake Landfill[].” Particularly 

because Plaintiffs’ claims largely are predicated on how Defendants have managed 
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and operated the landfill, we fail to see how this allegation shows that Rock Road 

Industries’ conduct is “an important ground for the asserted claims in view of the 

alleged conduct of all the Defendants.” See Westerfeld, 621 F.3d at 825. If anything, 

the allegation that Republic Services “owns, oversees, and directs the environmental 

decisions and conduct” of Rock Road Industries as well as the other two defendants 

suggests the opposite. See Atwood, 936 F.3d at 838, 840-41 (concluding that a local 

defendant’s conduct was not “significant” because extrinsic evidence showed that 

the local defendant’s injury-causing conduct was mandated by the nonlocal 

defendant); Mason, 842 F.3d at 400 (Kethledge, J., dissenting) (concluding the same 

in light of similar allegations in the complaint at issue there). 

The second allegation is that “[t]his lawsuit arises out of damages that resulted 

from Rock Road Industries, Inc.’s acts and omissions within the State of Missouri.” 

But the complaint contains verbatim allegations about the other three defendants. 

Nothing about this allegation “distinguishes the conduct of [Rock Road Industries] 

from the conduct of the other defendants.” See Opelousas, 655 F.3d at 362. To the 

contrary, this cut-and-paste approach illustrates how Plaintiffs’ complaint fails to 

differentiate meaningfully between Rock Road Industries’ conduct and the other 

defendants’ conduct. 

The third allegation is that “Rock Road Industries has maintained daily 

operational and managerial control over the management and environmental 

decisions of the West Lake Landfill, decisions which gave rise to the violations of 

law and damage to property alleged in this [complaint].” But in corresponding 

allegations about the other three defendants, the complaint includes materially 

identical allegations about their conduct. To the extent these parallel allegations 

differ, they do so because Plaintiffs alleged more about the other defendants’

conduct than they did about Rock Road Industries’ conduct. Thus, any “substantive 

distinctions” revealed by these allegations undermine rather than support the 

conclusion that Rock Road Industries’ conduct “forms a significant basis for 

[Plaintiffs’] claim[s].” See Atwood, 936 F.3d at 840. 
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The fourth allegation is that Rock Road Industries is a Missouri citizen “whose 

conduct forms a significant basis” for Plaintiffs’ claims. This allegation, parroting

the language of the significant-basis requirement, is a legal conclusion. See

§ 1332(d)(4)(A)(i)(II)(bb). Ordinarily, in determining the sufficiency of a pleading, 

“we need not accept as true a plaintiff’s conclusory allegations or legal conclusions 

drawn from the facts.” Glick v. W. Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 

2019). We see no reason to depart from that rule in this context, particularly because

we already have rejected the idea that “conclusory allegations” can suffice to satisfy 

the significant-basis requirement, Atwood, 936 F.3d at 841, and because the Supreme 

Court has admonished against adopting rules in the CAFA context that would “exalt 

form over substance,” Standard Fire Ins. v. Knowles, 568 U.S. 588, 595 (2013); cf.

Woods, 771 F.3d at 1265 (“[W]e interpret the significant local defendant 

requirement strictly so that plaintiffs and their attorneys may not defeat CAFA 

jurisdiction by routinely naming at least one state citizen as a defendant, irrespective 

of whether that defendant is actually a primary focus of the litigation.”). Thus, this 

pleaded legal conclusion does not establish that Rock Road Industries’ conduct 

forms a significant basis for Plaintiffs’ claims. See Atwood, 936 F.3d at 840.

C. 

Finally, going beyond the allegations in their complaint, Plaintiffs invite us to 

take judicial notice of the EPA’s 2018 Amended Record of Decision concerning the 

West Lake Landfill and a 1993 Consent Order referred to in that document. They 

argue that these materials, showing that the EPA deemed Rock Road Industries 

(along with three other entities) a “potentially responsible party” (“PRP”) for 

cleaning up the landfill under CERCLA, demonstrate that Rock Road Industries’ 

conduct meets the significant-basis requirement. See Atwood, 936 F.3d at 840

(holding that extrinsic evidence may be considered in determining whether the 

significant-basis requirement is met). Even assuming that we may take judicial 

notice of and consider this factual material seemingly presented for the first time on 

appeal, but see Kohley v. United States, 784 F.2d 332, 334 (8th Cir. 1986) (per 

curiam), we do not find that these materials carry Plaintiffs’ burden. 
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Under CERCLA, “even parties not responsible for contamination may fall 

within the broad definitions of PRPs” in 42 U.S.C. § 9607(a)(1)-(4), United States 

v. Atl. Rsch. Corp., 551 U.S. 128, 136 (2007), and “a party that falls within any of 

the four PRP categories of [§ 9607(a)] may be held jointly and severally liable by 

the government for the entire cost of a cleanup, even if the party is ‘innocent’ in the 

sense that it did not contribute to the pollution at the site,” Solutia, Inc. v. McWane, 

Inc., 726 F. Supp. 2d 1316, 1331 (N.D. Ala. 2010). The four PRP categories in 

§ 9607(a) are (1) current owners or operators of a waste facility, (2) any previous 

owner or operator of a waste facility during any time in which hazardous substances 

were disposed of at the waste facility, (3) any person who arranged for disposal or 

treatment of hazardous substances at a waste facility, and (4) any person who 

transported hazardous substances to a waste facility.

The 2018 Amended Record of Decision simply indicates that Rock Road 

Industries was designated a PRP; it does not explain why. In light of the fact that 

even an “innocent” party can be designated a PRP, Solutia, 726 F. Supp. 2d at 1331, 

this designation without more does not demonstrate, and certainly not beyond 

“doubt,” that Rock Road Industries’ conduct forms a significant basis for Plaintiffs’ 

claims, see Westerfeld, 621 F.3d at 823. 

In contrast, the 1993 Consent Order does suggest why the EPA designated 

Rock Road Industries a PRP, but the information it contains on this point does not 

carry Plaintiffs’ burden. In that order, the EPA designated four entities as PRPs: 

Rock Road Industries; Laidlaw Waste Systems (Bridgeton), Inc., which later merged 

into Bridgeton Landfill; Cotter Corporation; and the Department of Energy. 

Notably, while the EPA indicated that Cotter Corporation and the Department of 

Energy were designated PRPs because they arranged for the disposal of the 

radioactive waste at the landfill, see § 9607(a)(3), and it indicated that Bridgeton 

Landfill’s predecessor was designated a PRP because it was an owner or operator of 

the landfill at the time of the disposal, see § 9607(a)(2), all it said about Rock Road 

Industries’ PRP designation was that Rock Road Industries was “a current owner” 

of the landfill, see § 9607(a)(1). But a “current owner” can be designated a PRP 
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under § 9607(a)(1) “without regard to causation.” New York v. Shore Realty Corp., 

759 F.2d 1032, 1044 (2d Cir. 1985); see also Canadyne-Ga. Corp. v. NationsBank, 

N.A. (S.), 183 F.3d 1269, 1275 (11th Cir. 1999) (“[T]he owner of land is directly 

liable under CERCLA, regardless of whether he or she caused or contributed to the 

release of hazardous substances there.”). Thus, the reason for Rock Road Industries’ 

designation as a PRP leaves open the possibility, particularly when contrasted with 

the reasons provided for the other entities’ designations as PRPs, that the EPA 

deemed Rock Road Industries a PRP even though its conduct ostensibly giving rise 

to Plaintiffs’ claims was not “significant” for purposes of the local-controversy 

exception. Thus, the 1993 Consent Order also does not demonstrate, and again 

certainly not beyond “doubt,” that Rock Road Industries’ conduct forms a significant 

basis for Plaintiffs’ claims. See Westerfeld, 621 F.3d at 823. 

* * * 

In sum, Plaintiffs’ allegations that Defendants all engaged in the same conduct 

giving rise to Plaintiffs’ claims do not satisfy the significant-basis requirement. The 

few allegations in Plaintiffs’ complaint that refer specifically to Rock Road 

Industries and its conduct also fail to satisfy this requirement. And the extrinsic 

evidence Plaintiffs call our attention to does not carry their burden to show this 

requirement is satisfied. Accordingly, the local-controversy exception does not 

apply in this case, and the district court erred in concluding otherwise. 

IV.

For the foregoing reasons, we reverse the district court’s order remanding this 

action back to state court, and we remand for further proceedings. 

STRAS, Circuit Judge, concurring in the judgment. 

The court’s conclusion is the right one, but I would follow a simpler route to 

get there. Under the local-controversy exception, “[a] district court shall decline to 
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exercise jurisdiction” if, among other requirements, “at least 1 defendant is a 

defendant . . . who is a citizen of the State in which the action was originally filed.” 

28 U.S.C. § 1332(d)(4)(A)(i)(II)(cc). The only Missouri citizen that has ever been 

a defendant is Rock Road Industries, Inc. But between the time this case was filed 

and when it was removed to federal court, Rock Road merged with another company 

and ceased to exist as a separate entity. This unusual set of facts leads to a 

straightforward question: when must there be a local defendant, at the time of initial 

filing or at the time of removal? 

The text provides the answer. It twice uses the present-tense verb “is,” id., 

and “the present tense generally does not include the past,” Carr v. United States, 

560 U.S. 438, 448 (2010). So what matters is whether a local defendant exists when 

the district court “exercise[s] jurisdiction,” which happens at the time of removal in 

cases like this one, not at initial filing. 28 U.S.C. § 1332(d)(4)(A); see Kaufman v. 

Allstate N.J. Ins., 561 F.3d 144, 153 (3d Cir. 2009) (“[T]he local controversy 

exception requires consideration of the defendants presently in the action.”). Indeed, 

when filing is the focus, the statute drives that point home, either explicitly or by 

using the past tense. See, e.g., 28 U.S.C. § 1332(d)(4)(A)(i)(II)(cc), (4)(A)(ii), (7) 

(referring to “the State in which the action was originally filed,” requiring that no 

overlapping class actions have been filed “during the 3-year period preceding the 

filing of th[is] class action,” and specifying that plaintiffs’ citizenship generally 

“shall be determined . . . as of the date of filing of the complaint or amended 

complaint” (emphasis added)). 

All signs, in other words, point to evaluating the defendants’ citizenship under 

the local-controversy exception at the time of removal. Cf. Mansfield, Coldwater & 

Lake Mich. Ry. v. Swan, 111 U.S. 379, 381–82 (1884) (stating that “the difference 

of citizenship on which the right of removal depends must have existed . . . at the 

time of the removal” (emphasis added)). By then, Rock Road was gone and there 

was no one left to fill the role of “a defendant . . . who is a citizen of the State in 

which the action was originally filed.” 28 U.S.C. § 1332(d)(4)(A)(i)(II)(cc). 
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Without a local defendant, there is no local controversy, so I agree that this case must 

remain in federal court. 

______________________________