IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

AMOS and DEBBIE HOSTETLER, )

RITA CHAIREZ, BECKY NULL, and )

MARIA TOVAR, on behalf of themselves )

and all others similarly situated, )

)

Plaintiffs, )

)

v. ) Cause No. 3:15-cv-00226-JD-CAN

)

JOHNSON CONTROLS, INC. and )

TOCON HOLDINGS, LLC, )

)

Defendants. )

PLAINTIFFS’ SUPPLEMENTAL MOTION TO REMAND

In supplement to their Motion to Remand filed June 26, 2015, Plaintiffs, on behalf of

themselves and a class of similarly situated individuals, and pursuant to 28 U.S.C. § 1447(c),

request the Court to remand this case to the Circuit Court of Elkhart County, Indiana.

I. INTRODUCTION

On June 26, 2015, Plaintiffs moved to remand this case to state court on grounds that

Defendant Johnson Controls, Inc. (“JCI”) filed its Notice of Removal eleven months too late, and

also waived any right to seek removal by vigorously litigating the case in state court. However,

untimeliness and waiver are not the only defects in JCI’s removal of this case—two other

grounds for remand exist. First, the Class Action Fairness Act (“CAFA”), on which JCI bases its

claim of federal jurisdiction, requires district courts to decline jurisdiction over certain types of

“local controversies.” This case, arising from chemical leaks from a single industrial parcel

affecting the adjacent neighborhood, is exactly the type of local controversy that courts and

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Congress (in CAFA’s legislative history) have said should be excluded from the federal

jurisdiction otherwise directed by CAFA.

Second, JCI’s alternative theory of federal jurisdiction—that Indiana Defendant TOCON

Holdings, LLC (“TOCON”) was fraudulently joined, and hence that complete diversity exists—

contradicts its own pleadings and emails produced in this litigation just weeks ago. Plaintiffs’

claims against TOCON are well supported by the alleged facts and controlling law. JCI cannot

come close to carrying the heavy burden borne by a removing party seeking to establish

fraudulent joinder.

Moreover, JCI has no objectively reasonable basis for arguing that TOCON is not a

significant defendant under CAFA or that TOCON was fraudulently joined, because JCI itself

has sued TOCON, alleging that TOCON caused Plaintiffs’ injuries. Accordingly, the Court

should award applicable costs and expenses, including attorney fees, under 28 U.S.C. § 1447(c).

II. ARGUMENT

A. CAFA’s Local Controversy Exception Applies Here.

CAFA’s Local Controversy Exception is found in 28 U.S.C. § 1332(d)(4), and provides

in pertinent part:

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

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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 similar persons.

This exception was designed to exclude from federal jurisdiction those class actions

involving truly local issues or injuries. CAFA was enacted in 2005 to “assure fair and prompt

recoveries for class members with legitimate claims,” while also “restor[ing] the intent of the

framers of the United States Constitution by providing for Federal court consideration of

interstate cases of national importance.” Pub. L. No. 109-2, Section 2(b)(1)-(2) (listing purposes

of CAFA). This very language, however, makes clear there are some intrastate class actions,

involving local class members and overwhelmingly local issues, which can and should be

adjudicated in state court. As observed in Estate of Hanna v. Agape Senior, LLC, 2015 WL

247906 (D.S.C. Jan. 20, 2015):

Further review of CAFA’s legislative history reveals that the purpose of the local

controversy exception is to permit class actions with a truly local focus to remain

in state court. Therefore, a “court’s analysis for jurisdictional purposes should

focus on whether the case is a truly local controversy warranting remand or

whether it is an interstate class action . . . involv[ing] more people, more money,

and more interstate commerce that Congress intended to place in federal court.”

Id. at *3 (citations omitted).

Environmental cases considered under CAFA have held that chemical leaks from a single

known location, contaminating a single adjacent neighborhood, are deemed “local controversies”

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due to their uniquely truly local nature. For example, in Coffey v. Freeport McMoran Copper &

Gold, 581 F.3d 1240 (10th Cir. 2009), a case factually similar to this one, the plaintiffs sought

injunctive relief and monetary damages arising from soil and groundwater contamination caused

by a neighboring smelter operation. In affirming the district court’s remand of the case to state

court the Tenth Circuit concluded, “This case presents a classic example of what Congress

intended to cover when it created this [local controversy] exception. It is a ‘truly local

controversy—a controversy that uniquely affects a particular locality to the exclusion of all

others.’ ” Id. at 1243; see also Davis v. Omega Refining, LLC, 2015 WL 3650832, at *6-7 (E.D.

La. June 11, 2015) (applying the Local Controversy Exception in a case involving a single

facility owned by two successive defendants).

The holding in Coffey aligns with the legislative history of the Local Controversy

Exception. In fact, the Senate Report uses a chemical leak within a neighborhood as an example

of the type of class action intended to constitute a “local controversy.” In describing the type of

case that should be remanded under CAFA, the Senate Report stated:

The purpose of this [principal injuries] criterion is to ensure that this

exception is used only where the impact of the misconduct alleged by the

purported class is localized. For example, a class action in which local residents

seek compensation for property damage resulting from a chemical leak at a

manufacturing plant in that community would fit this criterion, provided that the

property damage was limited to residents in the vicinity of the plant.

S. Rep. 109-14, at *40.

The Seventh Circuit has recognized that the Local Controversy Exception was “designed

to draw a delicate balance between making a federal forum available to genuinely national

litigation and allowing the state courts to retain cases when the controversy is strongly linked to

that state.” Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675, 682 (7th Cir. 2006). The

chemicals that were leaked and dumped by Defendants in this case have created an underground

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plume of contamination impacting adjacent homes and businesses in a defined local area.

Therefore, this case is one in which the controversy is “strongly linked” to Indiana; this is not a

national or interstate case. And as the discussion that follows shows, all of the elements of

CAFA’s Local Controversy Exception are met here. As a result, the Court should decline to

exercise jurisdiction over this “truly local” case.

1. Plaintiffs’ Proposed Class Meets the Two-Thirds Citizenship Requirement.

Under 28 U.S.C. § 1332(d)(4)(A)(i)(I), Plaintiffs must show, by a preponderance of the

evidence, that greater than two-thirds of the proposed class members are citizens of Indiana. See

In re Sprint Nextel Corp., 593 F.3d 669, 673 (7th Cir. 2010). A person’s citizenship for purposes

of diversity jurisdiction “means domicile (the person’s long-term plan for a state of habitation)

rather than just current residence.” Myrick v. WellPoint, Inc., 764 F.3d 662, 664 (7th Cir. 2014).

While some putative class members may have left Indiana, the evidence provided with this

Motion and discussed below establishes that Plaintiffs meet the citizenship requirement of the

Local Controversy Exception.

The Seventh Circuit in Sprint endorsed two approaches for satisfying the two-thirds

citizenship element: (i) offering evidence of a representative sample of the putative class

showing that the two-thirds requirement is met; or (ii) limiting the class to “citizens” of the state

in question. 593 F.3d at 675-76. Here, Plaintiffs adopt the first approach and have followed the

decisions in Sprint, Myrick, In re Text Messaging Antitrust Lit., 2011 WL 305385 (N.D. Ill. Jan.

21, 2011), and Keltner v. SunCoke Energy, Inc., 2015 WL 3400234 (S.D. Ill., May 26, 2015).

In Sprint, the court explained how plaintiffs could meet their burden:

For starters, . . .they might have submitted evidence that two-thirds of the class

members were indeed Kansas domiciliaries or businesses. Given that there are

probably hundreds of thousands of putative class members, if not more, it would

be infeasible to document each class member’s citizenship individually, but the

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district court could have relied on evidence going to the citizenship of a

representative sample. This evidence might have included affidavits or survey

responses in which putative class members reveal whether they intend to remain

in Kansas indefinitely, or, if they are businesses, their citizenship under the

relevant test. Given those results and the size of the sample and the estimated size

of the proposed class, the district court could then have used statistical principles

to reach a conclusion as to the likelihood that two-thirds or more of the proposed

class members are citizens of Kansas. Statisticians and scientists usually want at

least 95 percent certainty, but any number greater than 50 percent would have

allowed the district court to conclude that the plaintiffs had established the

citizenship requirement by a preponderance of the evidence.

Id. at 675-76 (citations omitted). In 2014, the Seventh Circuit provided additional detail in

Myrick, describing an evidentiary option for a plaintiff class consisting of health insurance

policyholders:

[T]ake a random sample of policyholders (100, say), ascertain the citizenship of

each of these on the date the case was removed, and extrapolate to the class as a

whole. If the sample yields a lopsided result (say, 90% Illinois citizens or only

50% Illinois citizens) then the outcome is clear without the need for more

evidence. (The more lopsided the result, the smaller the sample needed to achieve

statistical significance.) If the result is close to the statutory two-thirds line, then

do more sampling and hire a statistician to ensure that the larger sample produces

a reliable result.

764 F.3d at 665.

Finally, two district courts have implemented these approaches to find that plaintiffs had

met the two-thirds requirement. In Text Messaging, the plaintiffs satisfied the test by: (i)

conducting a telephone survey of 15% of the putative class members; and (ii) performing a

public records search for non-respondents. 2011 WL 305385, at *3. The court was satisfied

with the evidence showing that over two-thirds of the business survey respondents, and over

85% of the individual survey respondents, were Kansas citizens. Id. In Keltner, a case involving

claims of air pollution from an adjacent steel mill, the plaintiffs offered: (i) declarations from

181 putative class members, each attesting to the fact that they currently resided in Illinois and

intended to remain in Illinois; and (ii) a declaration from an expert statistician concluding that

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more than two-thirds of the class members resided and intended to remain in Illinois. 2015 WL

3400234, at *7. The court determined that “the material presented by plaintiffs was sufficient to

meet the preponderance of the evidence standard.” Id. at *8.

Here, Plaintiffs easily satisfy the Seventh Circuit test described in Sprint. The proposed

class in this case consists of: “all persons within the Class Area (defined below) who have

owned, rented, or occupied property that has been impacted by the Defendants’ contamination

and toxic vapors caused by releases from Defendants’ activities at the Site between 1992 and

May 30, 2014.” (Pls.’ Motion for Class Cert., Docket Entry (“DE”) 1-17, at ECF pp. 9-10; see

also Complaint, DE 4-1, at ¶ 101.) The Class Area is based upon the expert opinion of Dr.

Vasiliki Keramida, an environmental engineer, who estimated the geographic area of impact and

depicted it in Exhibit B to her expert affidavit. (See DE 1-17, Attachment A: Affidavit of Dr.

Vasiliki Keramida, at ECF pp. 37, 62.) The Class Area contains 103 homes, one vacant lot, and

11 homes that were demolished. (See DE 1-17, Attachment B: Affidavit of Penny J. Scott, at

ECF p. 66, ¶ 9.) The Class Area also contains Goshen High School and nine active business

properties. (See Affidavit of John Ulmer, attached hereto as Exhibit A, at ¶¶ 2-3.)

In order to identify potential class members, Plaintiffs consulted three different sources.

First, Penny Scott, a paralegal and former Special Agent with the Criminal Investigation

Division of the Internal Revenue Service, personally visited the Class Area and identified each

residential address. (DE 1-17, at ECF p. 65, ¶¶ 2-3, 6.) Ms. Scott then conducted a review of the

Polk City Directory, information obtained from Elko Title Corp., and information provided by

neighborhood residents to identify potential residents at those addresses during the relevant time

period. (Id. at ECF pp. 65-66, ¶¶ 4, 7.) The Polk City Directory contains information obtained

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from 67 different sources, including public records, telephone directories, utility records, deed

transfers, surveys, and self-reported information. (Id. at ECF p. 65, ¶ 5.)

Second, Plaintiffs performed a title search of each of the properties within the Class Area

for the period January 1, 1992 through May 30, 2014 and obtained the names of all of the

property owners during the class period. (See Affidavit of Elko Title Corp., attached hereto as

Exhibit B.) Finally, Plaintiffs engaged the services of Gerard Alexander, a private investigator

and former Special Agent of the Federal Bureau of Investigation, to perform database searches

for each property. (Declaration of Gerard Alexander, attached hereto as Exhibit C, at ¶¶ 2-5.)

Mr. Alexander ran 2,636 searches and identified 2,532 individuals who had potentially resided at

those properties during the relevant time period. (Id. at ¶ 8.) Plaintiffs compiled the information

and removed duplicates, and then, as suggested by the court in Myrick, hired an expert

statistician, Dr. Malcolm Cohen, who holds a Ph.D from M.I.T.

Dr. Cohen and his assistant, Laura Steiner, an expert on survey design and

implementation, designed a telephone survey to determine the citizenship of each of the potential

class members. (See Report of Dr. Malcolm Cohen and Laura Steiner, attached hereto as Exhibit

D.) In connection with the telephone survey a total of 7,469 phone calls were made in order to

reach all eligible respondents. (Id. at pp. 3-4.) The respondents were asked whether they resided

at the listed address during the class period, whether they resided in Indiana on the date the

Complaint was filed, whether they still reside in Indiana, and whether they intend to remain in

Indiana. (Id. at p. 3.) The telephone survey results indicated that 76% of those reached were

Indiana citizens. (Id. at p. 5.) Dr. Cohen concluded with a 95% confidence interval that the

estimated proportion of the entire targeted survey group who are Indiana citizens would fall

between 69% and 83%. (Id. at p. 6.) Dr. Cohen further concluded that with a 50% confidence

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interval (the standard adopted by the Seventh Circuit in Sprint) the range is between 74% and

79%, again based solely upon the telephone survey. (Id.)

In addition to the telephone survey, Plaintiffs interviewed 90 potential class members for

whom they have contact information. All of those individuals signed affidavits stating that they

were Indiana residents when the Complaint was filed, they are still Indiana residents, and that

they intend to remain in Indiana. (See Compilation of Affidavits, attached hereto as Exhibit E.)

Plaintiffs also engaged the services of Dallas Kunkle, a private investigator and former FBI

Special Agent, to conduct an in-person survey of residents in the Class Area. Mr. Kunkle visited

60 homes and was able to survey 48 individuals. (Affidavit of Dallas Kunkle, attached hereto as

Exhibit F, at ¶¶ 6-7, 9.) 46 of the 48 individuals surveyed were Indiana residents when the

Complaint was filed, are still Indiana residents, and intend to remain in Indiana. (Id. at ¶ 9.)

Finally, Plaintiffs were able to obtain certificates of business for five of the nine businesses in the

neighborhood and deed information for Goshen High School. (Compilation of Business

Certificates and Deed Information, attached hereto as Exhibit G.) That information demonstrates

that all five businesses and the High School qualify as Indiana citizens. (See id.)

After the deduplication of all results, Dr. Cohen included the results of the in-person

surveys and affidavits with the results of the telephone survey and concluded that over 86% of

identified potential class members are Indiana residents with an intent to remain in Indiana.

(Exhibit D, at p. 6.) Dr. Cohen further concluded that the percentage of Indiana citizens in the

proposed class far exceeds the required two-thirds, and that the use of multiple methodologies,

such as making over 7,000 phone calls, conducting in-person interviews, and including data from

individuals who had signed affidavits, represented a substantial effort to reach eligible class

members. (Id. at pp. 6-7.)

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In Sprint, the Court suggested that the plaintiffs could have obtained affidavits or survey

responses in which putative class members reveal whether they intend to remain in Kansas

indefinitely, and then submitted the results to a statistician to determine the likelihood that twothirds or more of the proposed class were citizens of Kansas. 593 F.3d at 675-76. That is the

exact approach Plaintiffs have taken in this case. In fact Plaintiffs in this case have done even

more because they attempted to reach every potential class member. The results of over 7,000

phone calls and dozens of in-person interviews indicate that over 86% of the identified

population are Indiana citizens. Dr. Cohen has concluded with a 95% confidence interval that

more than two-thirds of the proposed class are Indiana citizens. Through this evidence, Plaintiffs

have established by a preponderance of the evidence that two-thirds or more of the putative class

members are Indiana citizens.

2. Defendant TOCON Is an Indiana Citizen Whose Alleged Conduct Forms a

Significant Basis for the Claims Asserted and From Whom Significant Relief Is

Sought.

As provided by 28 U.S.C. § 1332(d)(4)(A)(i)(II), for the Local Controversy Exception to

apply there must be at least one 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. . . .

There is no question that the foregoing subsection (cc) is met here. TOCON is a limited

liability company organized under Indiana law with its principal place of business in Syracuse,

Indiana. (TOCON’s Answer to Complaint, DE 7, at p. 2 ¶ 3.) Under 28 U.S.C. § 1332(d)(10), a

limited liability company is a citizen of the state where it has its principal place of business and

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also of the state under whose laws it is organized. Therefore TOCON is an Indiana citizen. JCI

does not dispute that. (See Notice of Removal, DE 1, at ¶ 24 n.4.)

JCI contends, however, that the foregoing subsections (aa) and (bb) of the Local

Controversy Exception do not apply. JCI bases its argument entirely on extrinsic evidence.

First, JCI argues based on deposition testimony by Plaintiffs’ expert, Dr. Keramida, that

TOCON’s alleged conduct is not a significant basis for Plaintiffs’ claims. (See DE 1, at ¶¶ 25-

26.) Second, JCI argues that because Plaintiffs have not yet served discovery on TOCON or

sought judicial intervention based on its nonparticipation in hearings and depositions, it follows

that TOCON is not a defendant from whom significant relief is sought. (See id. at ¶¶ 27-28.)

For the reasons discussed below, JCI’s arguments in both regards should be rejected.

a. Extrinsic evidence should not be considered in determining compliance

with subsections (aa) and (bb).

As an initial matter, JCI’s argument should be rejected because it is based solely on

matters outside the pleadings. While the Seventh Circuit has not addressed this issue, for

purposes of determining compliance with subsections (aa) and (bb) “the majority of circuits find

that the district court should consider only the allegations in the plaintiff’s complaint or petition

for damages.” Johnson v. MFA Petroleum Co., 2013 WL 3448075, at *4 (W.D. Mo. July 9,

2013) (citing Coleman v. Estes Express Lines, Inc., 631 F.3d 1010, 1015 (9th Cir. 2011) and

collecting cases). See also Davis, 2015 WL 3650832, at *6-7 (looking at only the complaint’s

allegations in concluding that the local defendant was significant); Dutcher v. Matheson, 16 F.

Supp. 3d 1327, 1336 (D. Utah 2014) (considering only the allegations of the complaint in

analyzing compliance with subsections (aa) and (bb) and refusing to permit jurisdictional

discovery of facts relevant to those subsections); Simmons v. Ambit Energy Holdings, LLC, 2014

WL 5026252, at *6 (S.D.N.Y. Sept. 30, 2014) (restricting analysis under subsections (aa) and

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(bb) solely to allegations of the complaint); City of O’Fallon, Mo. v. Centurylink, Inc., 930 F.

Supp. 2d 1035, 1049 (E.D. Mo. 2013) (same); Anderson v. Hackett, 646 F. Supp. 2d 1041, 1048

(S.D. Ill. 2009) (same).

This Court should follow the majority rule. Otherwise it may be forced to “wade into the

factual swamp of assessing the financial viability of a defendant as part of this preliminary

consideration” despite the fact that “nothing in the language of the statute . . . indicates Congress

intended district courts to” do so. Coleman, 631 F.3d at 1017 (quoting Coffey, 581 F.3d at

1245). As the Coleman court also observed, “We see nothing in CAFA that indicates a

congressional intention to turn a jurisdictional determination concerning the local defendant’s

‘alleged conduct’ into a mini-trial on the merits of the plaintiff’s claims.” Id. at 1017.

Applying the majority rule and considering only the allegations of the Complaint, there is

no question that TOCON’s alleged conduct forms a significant basis for Plaintiffs’ claims and

that Plaintiffs seek significant relief from TOCON. Regarding TOCON’s alleged conduct, for

this prong of the Local Controversy Exception courts compare “the local defendant’s alleged

conduct to the alleged conduct of all the Defendants.” Kaufman v. Allstate New Jersey Ins. Co.,

561 F.3d 144, 156 (3d Cir. 2009). Particularly where the local defendant’s conduct is “deeply

intertwined” with that of the non-local defendant, the “significant basis” test is satisfied. Haynes

v. EMC Mortgage Corp., 2010 WL 1445650, at *4 (N.D. Cal. Apr. 12, 2010). Here Plaintiffs’

claims for damages and injunctive relief all center on the manufacturing plant formerly owned by

JCI that is now owned by TOCON. Plaintiffs’ claims against TOCON are factually and legally

intertwined with their claims against JCI because they arise out of the same source of

contamination that has caused and continues to cause harm to class members and their

properties.

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Moreover, Plaintiffs not only allege that TOCON has incurred liability by allowing

chemicals released by JCI to migrate off-site, they also allege that TOCON has itself released

hazardous substances into the environment. In particular, Plaintiffs allege that “[a]fter TOCON

purchased the Plant from JCI, TOCON had several of the buildings demolished and then left the

resulting debris piles in place,” and that “those debris piles contain hazardous chemicals such as

asbestos, lead, mercury and/or PCBs.” (DE 4-1, at p. 2.) Plaintiffs allege further that “[t]he

debris piles and associated contamination resulting from TOCON’s actions in demolishing

buildings at the former Plant constitute a further and additional nuisance and further interferes

with the Plaintiffs’ use and enjoyment of their properties.” (Id. at ¶ 125.) And they allege that

“Defendant TOCON contributed to the release of TCE and other hazardous chemicals from the

Plant into the Neighborhood by failing to prevent further off-site migration of Contamination

from the Plant, by failing to timely remediate the off-site Contamination emanating from the

Plant, and by contributing additional waste to the Neighborhood through its improper storage of

solid and potentially hazardous waste.” (Id. at ¶ 139.) Thus, Plaintiffs have alleged they have

been harmed by wrongful conduct of TOCON that is both intertwined with that of JCI and that

has independently contributed to the contamination at issue.

Regarding the relief Plaintiffs seek from TOCON, courts hold that CAFA’s “significant

relief” test is satisfied where “[t]he complaint seeks damages equally” from the local and nonlocal defendants. Coleman, 631 F.3d at 1020. And in cases involving requests for injunctive

relief, the test is met where the plaintiff seeks relief from the local defendant that is not “itself

insignificant,” id., or when that requested relief is “important” and not “trivial.” Caruso v.

Allstate Ins. Co., 469 F. Supp. 2d 364, 369 (E.D. La. 2007). Here Plaintiffs’ Complaint seeks

compensatory damages equally from TOCON and JCI for trespass (DE 4-1, at ¶¶ 118-22),

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nuisance (id. at ¶¶ 123-27), negligence (id. at ¶¶ 128-30, 132-36), environmental legal action (id.

at ¶¶ 139-40), and negligent infliction of emotional distress (id. at ¶¶ 141-44). Punitive damages

are also sought equally from TOCON and JCI. (Id. at ¶¶ 151-55.) And the injunction sought by

Plaintiffs, requiring complete removal of all contamination at the former plant and throughout

Plaintiffs’ neighborhood, is directed equally at TOCON and JCI. (Id. at p. 28, ¶ 4.) In fact,

because TOCON now owns the plant site that Plaintiffs allege to be an ongoing source of

contamination in their neighborhood, Plaintiffs cannot obtain complete relief without an

injunction that requires TOCON’s participation in the needed cleanup.

Davis is instructive on this point. Just like the instant case, the source of contamination

in Davis was a single facility operated by two successive owners. 2015 WL 3650832, at *1. The

plaintiffs alleged that Omega Refining, Inc. allowed releases of chemicals during its period of

ownership, and that the subsequent and current owner, Vertex Refining LA, LLC, also allowed

releases during its short tenure from May 2014 until the filing of the plaintiffs’ complaint on

January 16, 2015. Id. at *6. The defendants argued that plaintiffs could not possibly seek

significant relief from Vertex and that Vertex’s conduct could not form a significant basis of

plaintiffs’ claims, because Vertex had only owned the facility for a few months and most of the

alleged releases occurred during Omega’s ownership. Id. The court disagreed. Based solely on

the pleadings, the court concluded:

Considering the allegations as a whole, it cannot be said that plaintiffs do not seek

significant relief from Vertex. They allege that the facility continues to release

chemicals that harm them. Omega owned the facility for two years and about

four months encompassed by the complaint, 2012 to May 2015. Vertex has

owned the facility for a little over a year. The complaint encompasses current

and future events that may have occurred during Vertex’s ownership of the

facility.

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Id. at *7 (emphasis added). Likewise, Plaintiffs’ Complaint here encompasses current and future

events, and the requested injunctive relief necessarily involves both JCI and TOCON.

In sum, by focusing on the allegations of Plaintiffs’ Complaint as the Court should do, it

is indisputable that Plaintiffs seek significant relief from TOCON and that TOCON’s alleged

conduct forms a significant basis for the claims they assert.

b. Should the Court wish to consider extrinsic evidence, it is clear that

Plaintiffs’ claims against TOCON meet CAFA’s “significant basis”

requirement.

Plaintiffs’ claims in this case are based both on JCI’s actions in polluting their

neighborhood as well as TOCON’s subsequent actions in causing additional pollution and failing

to stop the existing contamination from migrating further into the neighborhood. JCI has itself

alleged that TOCON’s conduct caused Plaintiffs’ injuries. One of JCI’s defenses in this action is

that “Plaintiffs’ alleged injuries are caused in whole or in part by Tocon.” (JCI’s Answer and

Affirmative Defenses to Complaint, DE 10, at p. 45.) Furthermore, in support of its

counterclaim against TOCON, JCI alleged:

Plaintiffs Amos and Debbie Hostetler, Rita Chairez, Becky Null and Maria Tover

[sic] have alleged Claims against Johnson Controls based upon Environmental

Laws and arising from conditions arising after the Closing.

(JCI’s Counterclaim Against TOCON, DE 8, at p. 5, ¶ 7 (emphasis added).) Yet, in spite of its

pleadings to the contrary, JCI now argues in its Notice of Removal that “Plaintiffs’ purported

harm in each of the six Counts hinges entirely on the alleged chemical contamination and

resulting underground plume of TCE and similar chlorinated contaminates created during JCI’s

alleged operation of the plant between 1937 and 2006, which was discovered decades before

TOCON’s 2007 purchase of the property.” (DE 1, at ¶ 26.) JCI’s new argument is belied by its

own documents.

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On April 18, 2013, JCI’s Director of Environmental Affairs emailed IDEM and stated

“[w]e could use your assistance on a potential waste management issue with regard to the current

owner, Tony Adkins-TOCON Holdings, at the Goshen, IN Plant.” (Email and Attachments,

Apr. 18, 2013, GZA0023158-64, attached hereto as Exhibit H, at GZA0023158.) TOCON was

preparing to demolish the structures on the site, and JCI was “concerned about the potential

release of chemicals stored in 55 gallon drums on the site.” (Id.) JCI “estimate[d] over 100

drums on-site.” (Id.) JCI explained: “The drums have been moved within the site a few times

and Johnson Controls is concerned that the contents of the drums could be leaking and could

have the potential for being improperly disposed on-site, which would no doubt lead to further

remedial actions.” (Id. (emphasis added).) Then, on September 19, 2014—almost three months

after Plaintiffs’ Complaint in this action was filed—JCI complained to IDEM that “all the open,

leaking drums and drums with hazardous waste labels that the owner/contractor was cited for by

the City of Goshen have been moved out of sight behind the large dirt pile.” (Email, Sept. 19,

2014, GZA0023751, attached hereto as Exhibit I.) JCI also complained that new debris had been

“trucked/dumped onto the site” and that “[t]he material has an odor as well.” (Id.) JCI’s prior

pleadings in this case, and the emails it sent to IDEM complaining about TOCON dumping

waste at the site and storing leaking drums of hazardous waste, plainly contradict its argument in

its Notice of Removal that “Tocon’s conduct has no significant relationship to the claims of

groundwater, soil, and indoor air contamination in this suit.” (See DE 1, at ¶ 24.)

Furthermore, according to Becky Hershberger, the Brownfields Coordinator for the City

of Goshen, demolition debris containing unabated asbestos and possibly other hazardous

materials has been shoved into holes in the ground and then compacted down with a backhoe.

(Affidavit of Becky Hershberger, attached hereto as Exhibit J, at ¶¶ 1, 9.) Jason Kauffman, the

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Stormwater Coordinator for the City of Goshen, has inspected the site several times since

TOCON took ownership. (Affidavit of Jason Kauffman, attached hereto as Exhibit K, at ¶¶ 1-2.)

Mr. Kauffman has observed 55-gallon drums overflowing at the site as well as materials entering

the stormwater system. (Id. at ¶¶ 3-4.) On December 31, 2014, and again on April 21, 2015,

IDEM cited Tony Adkins, the owner of TOCON, for violating Indiana’s open dumping laws

because of activities at the site. (Inspection Summary/Violation Letter, Dec. 31, 2014, attached

hereto as Exhibit L; Inspection Summary Follow-Up, Apr. 21, 2015, attached hereto as Exhibit

M.) Photographs taken by IDEM in October 2014 and March 2015 show numerous piles of

debris at the site including a close up of a partially buried barrel with a hazardous waste label on

it. (Email and Attachments, Jan. 6, 2015, attached hereto as Exhibit N; Email and Attachments,

Apr. 22, 2015, attached hereto as Exhibit O.) Photographs taken by Plaintiffs’ counsel on June

24, 2015 show barrels of hazardous waste at the site and clear staining on the ground below

them. (Photographs, taken June 24, 2015, attached hereto as Exhibit P.) Additionally, Plaintiff

Becky Null’s front porch is located approximately 50 feet from a large debris pile that likely

contains unabated asbestos and other hazardous materials. (Photograph, taken June 11, 2015,

attached hereto as Exhibit Q.) These dangerous chemicals and all demolition debris must be

properly remediated, and there is absolutely no question that TOCON’s activities at the site form

a significant basis of Plaintiff’s claims in this action.

In its Notice of Removal, JCI points to Dr. Keramida’s testimony and argues it “is an

admission that Plaintiffs have no evidence to support any allegations against TOCON for causing

or contributing to the contamination.” (DE 1, at ¶ 26.) JCI’s characterization of Dr. Keramida’s

testimony is not even close to being correct.

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To begin with, what Dr. Keramida said is that she did not “have any information to date

to show that the contamination was caused by Tocon.” (DE 1, at ¶ 25 (quoting Keramida Dep. at

46:21-47:7) (emphasis added).) Dr. Keramida did not say that TOCON has not contributed to

the contamination at issue, and in the environmental field, “cause” and “contribute” are

materially different. Indiana’s Environmental Legal Action statute (the “ELA”) imposes liability

on anyone who “caused or contributed to” contamination, Ind. Code § 13-30-9-2, and a person

who “contributed to” contamination can be liable even if he did not “cause” it. See Neal v. Cure,

937 N.E.2d 1227, 1234 (Ind. Ct. App. 2010) (“On appeal, the Neals do not argue the Cures

‘caused’ the contamination, thus we concern ourselves only with whether the evidence

demonstrated the Cures ‘contributed’ to the contamination.”).

Indiana courts hold that a landowner may be deemed to have “contributed to”

contamination for purposes of the ELA if it is aware someone else has contaminated its property

but does nothing to prevent the contamination from migrating off-site. See JDN Properties, LLC

v. VanMeter Enterprises, Inc., 17 N.E.3d 357, 362 (Ind. Ct. App. 2014) (“We conclude that a

landlord who has knowledge that a tenant’s use of land is causing environmental contamination,

but does nothing to halt or remediate such contamination and goes on to sell that property to a

third party without disclosing the property’s condition, may fairly be said to ‘share

responsibility’ for or contribute to such contamination.”) (citation omitted). As stated in her

affidavit, Dr. Keramida does have information showing TOCON “contributed to” the

contamination. (Affidavit of Dr. Vasiliki Keramida, attached hereto as Exhibit R, at p. 2.)

Thus, not only did Dr. Keramida’s deposition testimony not show the absence of

evidence to support Plaintiffs’ claims against TOCON as JCI asserts, testimony in her attached

affidavit sets forth evidence that provides abundant support for those claims and thereby

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demonstrates that TOCON’s alleged conduct forms a significant basis for them. Moreover, as

described above, JCI itself reported TOCON for “leaking drums” at the site just months prior to

Dr. Keramida’s deposition; for JCI to suggest that “no evidence” exists against TOCON, or that

Dr. Keramida made an “admission” of facts that JCI knows to be untrue, is duplicitous. Notably,

JCI did not produce its April 18, 2013 (Exhibit H) and September 19, 2014 (Exhibit I) emails to

Plaintiffs until June 18, 2015, over a month after Dr. Keramida’s deposition.

c. Extrinsic evidence likewise shows CAFA’s “significant relief”

requirement is satisfied.

JCI’s argument that Plaintiffs do not seek “significant relief” from TOCON for purposes

of subsection (aa) of CAFA’s Local Controversy Exception hinges, in part, on the fact that

“Plaintiffs have not served discovery on Tocon (while serving substantial discovery on JCI) and

made no attempt to seek a default judgment or take any other action against Tocon,” despite the

fact that since answering Plaintiffs’ Complaint “Tocon has not participated in this litigation at

all, failing to attend any significant court hearings or participate at any depositions, and it

remains unrepresented by counsel.” (DE 1, at ¶ 27.) Because this argument by JCI is based

solely on matters outside the pleadings, it is again legally insufficient to show that TOCON is not

a defendant “from whom significant relief is sought by members of the plaintiff class.” But like

JCI’s argument concerning TOCON’s conduct as a significant basis for Plaintiffs’ claims, this

argument would fail even if extrinsic evidence were considered.

First, despite the fact that JCI has asserted a counterclaim against TOCON and that

TOCON has asserted a cross-claim against it, JCI, like Plaintiffs, has served no discovery on

TOCON so far. For JCI, the reason it has yet to take discovery from TOCON may be that no

discovery deadline has been set at this point. That reason applies to Plaintiffs as well. But in

Plaintiffs’ case it is also true that they have been actively collecting evidence to prove their

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claims against TOCON even without taking discovery from it. Much of that evidence is

referenced in the attached affidavit of Dr. Keramida, and includes personal observations by local

and state environmental officials, as well as photographs they have taken, documenting

TOCON’s liability-producing conduct. Moreover, the absence of discovery directed toward

TOCON establishes, at most, Plaintiffs’ and JCI’s respective strategic decisions in this litigation.

Secondly, Plaintiffs have nothing to gain by trying to have a court prompt TOCON to

defend itself more effectively, whether by attending hearings, participating in depositions, or

doing anything else. If TOCON chooses not to oppose Plaintiffs’ pretrial motions, and not to

participate in discovery or otherwise prepare itself for trial, it is to its extreme detriment, not

Plaintiffs’. But because TOCON did at least answer Plaintiffs’ Complaint, there is no basis yet

for Plaintiffs to request default judgment against it.

Finally, even if TOCON is ultimately shown not to have substantial assets with which to

pay damages to Plaintiffs or to comply with an injunction requiring cleanup of contamination, it,

like most businesses, likely has liability insurance, perhaps providing millions of dollars in

coverage.

1 At a time they deem appropriate, Plaintiffs intend to seek discovery from TOCON as

to the existence of such insurance (and as to TOCON’s own financial wherewithal). Under

Indiana law, Plaintiffs may proceed directly against TOCON’s insurers to collect the proceeds of

any such policies once they have obtained a judgment against TOCON. See Community Action

of Greater Indianapolis, Inc. v. Indiana Farmers Mut. Ins. Co., 708 N.E.2d 882, 886 (Ind. Ct.

App. 1999), trans. denied. But any uncertainty about TOCON’s ability to satisfy a judgment on

its own has no relevance to whether significant relief is sought from it. As the Tenth Circuit said

in Coffey, “The statutory language is unambiguous, and a ‘defendant from whom significant

1

Indiana law regarding insurance coverage for environmental contamination is very favorable for insureds because

the standard “Pollution Exclusion” clause in general liability policies is generally unenforceable. See, e.g., St. Paul

Fire & Marine Ins. Co. v. City of Kokomo, 2015 WL 3907455, at *5 (S.D. Ind. June 25, 2015).

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relief is sought’ does not mean ‘a defendant from whom significant relief may be obtained.’ ”

581 F.3d at 1245.

In sum, Plaintiffs’ Complaint plainly seeks significant relief from TOCON. That

significant relief takes the form of a request for compensatory and punitive damages directed

equally at JCI and TOCON, and a request for an injunction, also directed equally at JCI and

TOCON, requiring cleanup of contamination throughout Plaintiffs’ neighborhood and at its

ongoing source—the plant site now owned by TOCON and formerly owned by JCI. None of the

extrinsic evidence cited by JCI demonstrates that Plaintiffs do not seek significant relief from

TOCON. Therefore, even if that extrinsic evidence were considered, Plaintiffs would still satisfy

the “significant relief” requirement of CAFA’s Local Controversy Exception.

3. The Remaining Requirements of CAFA’s Local Controversy Exception Are

Undisputedly Met.

Satisfaction of the remaining requirements of the Local Controversy Exception is not

disputed by JCI. 28 U.S.C. § 1332(d)(4)(A)(i)(III) requires that “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. . . .” Because all alleged injuries were to owners and/or

occupants of buildings within a single Goshen, Indiana neighborhood, resulting from the

contamination emanating from a nearby industrial site, all injuries to members of the plaintiff

class were incurred in Indiana, where this action was filed.

The final requirement of the Local Controversy Exception is that no other class action

asserting the same or similar factual allegations has been filed against any of the defendants

within three years prior to the filing of this action. 28 U.S.C. § 1332(d)(4)(ii). After a

comprehensive search, Plaintiffs have been unable to locate any similar class actions filed

against JCI or TOCON based on their alleged contamination of property near their industrial site

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in Goshen. Therefore, like all of the other requirements of the Local Controversy Exception, the

requirement of subsection (d)(4)(A)(ii) is satisfied. As a result, the Court should decline to

exercise jurisdiction over this case.

B. JCI Cannot Establish Fraudulent Joinder.

As an alternative to its contention that federal jurisdiction over this action is provided by

CAFA (i.e., that the Local Controversy Exception does not apply), JCI maintains there is

complete diversity of citizenship between the parties, and thus that jurisdiction exists under 28

U.S.C. § 1332(a)(1). According to JCI, TOCON “was fraudulently joined for the apparent

purpose of defeating JCI’s right of removal,” and hence TOCON should be “disregarded” for

purposes of determining jurisdiction. (DE 1, at ¶ 31.)

The sole basis for JCI’s fraudulent-joinder argument is the same as that for its argument

that TOCON’s alleged conduct does not form a significant basis for Plaintiffs’ claims. That is,

JCI maintains that the deposition testimony of Plaintiffs’ expert, Dr. Keramida, establishes that

Plaintiffs have no evidence to support their claims against TOCON. In JCI’s words:

Dr. Keramida’s May 12, 2015 deposition testimony, reproduced in relevant part in

paragraph 20 [sic] above, demonstrates that Tocon was fraudulently joined for the

apparent purpose of defeating JCI’s right of removal. . . .

* * *

Because Dr. Keramida admits that Plaintiffs have no evidence linking Tocon to

the alleged contamination, there is no “reasonable possibility that a state court

would rule against” Tocon in this case.

(Id. at ¶¶ 31, 33 (citation and footnote omitted).) Again, JCI knows that evidence of TOCON’s

recent “leaking drums” exists—JCI just did not produce its emails until after Dr. Keramida was

deposed.

And even in her deposition, Dr. Keramida did not “admit[ ] that Plaintiffs have no

evidence linking Tocon to the alleged contamination. . . .” What she said, as noted previously,

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was: “I don’t have any information to date to show that the contamination was caused by

Tocon.” (Id. at ¶ 25 (quoting Keramida Dep. at 46:21-47:7).) As also explained previously, a

person can be liable under Indiana’s Environmental Legal Action statute if he “contributed to”

contamination even if he did not “cause” it, and allowing known contamination on one’s

property to migrate off-site can constitute “contributing to” contamination for purposes of that

statute. See Neal, 937 N.E.2d at 1234; JDN Properties, LLC, 17 N.E.3d at 362. And as Dr.

Keramida explains in her affidavit, she does have information showing TOCON contributed to

the neighborhood contamination. (Exhibit R, at p. 2.) That information, she goes on to explain,

involved TOCON’s failure to remediate the contamination JCI left behind and its failure to

prevent that contamination from migrating off-site. (Id.) The information she describes does

support Plaintiffs’ claims against TOCON.

Moreover, as again explained previously, Dr. Keramida’s affidavit describes evidence

that she recently became aware of showing TOCON may have “caused” contamination by its

own affirmative actions. (Id. at 3-4.) That evidence consists of affidavits from two local

environmental officials and inspection reports and photographs from a state environmental

official, reporting and depicting leaking drums and construction debris on TOCON’s property,

and mismanagement of asbestos removal in the course of TOCON’s demolition of buildings at

the site. (Id. at 3, 44-71.) That evidence provides even further support for Plaintiffs’ claims

against TOCON.

A defendant seeking removal “bears a ‘heavy burden to establish fraudulent joinder.’ ”

Van Swol v. ISG Burns Harbor, LLC, 491 F. Supp. 2d 807, 813 (N.D. Ind. 2007) (citing Gottleib

v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993); Poulous v. Naas Foods, Inc., 959 F.2d

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69, 73 (7th Cir. 1992)). This issue was thoroughly discussed by Judge Robert L. Miller in

McDaniel v. Synthes, Inc., 2007 WL 3232186 (N.D. Ind. Oct. 29, 2007):

“The defendant must show that, after resolving all issues of fact and law in favor

of the plaintiff, the plaintiff cannot establish a cause of action against the in-state

defendant.” [Poulous, 959 F.2d at 73]. Essentially, the court must find that there

is no reasonable possibility that a state court would rule against the non-diverse

defendant. Id.; see also Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)

(“If there is even a possibility that a state court would find that the complaint

states a cause of action against any one of the resident defendants, the federal

court must find that joinder was proper and remand the case to state court.”)

(citation omitted). The scope of the court’s inquiry in determining fraudulent

joinder is “extremely narrow,” permitting only a summary inquiry to determine

whether the plaintiff is precluded from recovering against the in-state defendant.

See Rutherford v. Merck & Co., 428 F. Supp. 2d 842, 847 (S.D. Ill. 2006) (noting

that the test for fraudulent joinder “is a less searching test than the test under Rule

12(b)(6). . . .”) (citing Valentine v. Ford Motor Co., 2003 WL 23220758, at *4

(S.D. Ind. Nov. 21, 2003)).

Id. at *2 (original emphasis).

JCI cannot come close to meeting its heavy burden of establishing that TOCON was

fraudulently joined as a party to this action. JCI’s own emails to IDEM would alone be

sufficient to support claims against TOCON. Moreover, Dr. Keramida’s deposition testimony,

on which JCI solely relies, does not show the absence of evidence to support Plaintiffs’ claims

against TOCON, and her affidavit provides ample evidence to support those claims. And it

should again be noted that JCI itself has twice alleged, under the requirements of Rule 11, that

TOCON’s conduct is the cause of Plaintiffs’ injuries. (DE 8 at p. 5; DE 10 at p. 45.) Because

JCI cannot show that TOCON was fraudulently joined, diversity jurisdiction under 28 U.S.C. §

1332(a)(1) does not exist.

III. REQUEST FOR ATTORNEY FEES

The Court should award fees under 28 U.S.C. § 1447(c). JCI has sued TOCON in this

litigation making essentially the same allegations as Plaintiffs—that Plaintiffs’ injuries were

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caused by TOCON. As recently as September 19, 2014, JCI’s Director of Environmental Affairs

reported the presence of “leaking drums” on the former JCI site. JCI’s pleadings and conduct

prior to removal indicate JCI’s belief that TOCON has caused or contributed to contamination

and bears at least some, if not all, responsibility for Plaintiffs’ claims.

But having played its hand in state court and lost, and facing an imminent hearing on

class certification, JCI has engaged the gears of this federal court by arguing, in part, that

TOCON is not a significant defendant in this litigation. JCI has argued further that Plaintiffs

could not conceivably state a claim against TOCON and therefore fraudulently joined TOCON

to avoid federal diversity jurisdiction. JCI simply cannot reconcile its own pleadings and

conduct with its current position, and a litigant should not be permitted to take with the left hand

what it gives with the right. Moreover, the delay caused by JCI’s removal is not insignificant.

While § 1447(c)’s fee provision is properly construed to avoid punishing parties who remove on

an “objectively reasonable” basis, Plaintiffs respectfully submit that JCI’s arguments in support

of removal, under both CAFA and fraudulent joinder, definitely fail this generous test.

IV. CONCLUSION

For the foregoing reasons, the Court should remand this action back to the Elkhart

County Circuit Court.

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12409566.3

Respectfully submitted,

/s/ Thomas A. Barnard_____________________

Thomas A. Barnard, Attorney No. 4011-49

Rodney L. Michael, Jr., Attorney No. 23681-49

Melissa A. Gardner, Attorney No. 29920-49

Taft Stettinius & Hollister LLP

One Indiana Square, Suite 3500

Indianapolis, Indiana 46204-2023

Telephone: 317.713.3500

Facsimile: 317.713.3699

John D. Ulmer, Attorney No. 921-20

Yoder, Ainlay, Ulmer, & Buckingham, LLP

130 North Main Street

Goshen, Indiana 46527

Telephone: 574.533.1171

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on July 10, 2015, I electronically filed the foregoing with the Clerk

of Court using the CM/ECF system, which sent notification of such filing to all counsel of

record. Parties may access this filing through the Court’s system.

The undersigned hereby certifies that on July 10, 2015, a copy of the foregoing was

mailed by U.S. Mail, to:

TOCON Holdings LLC

c/o Tony Adkins

5722 Pond Ridge Circle

Georgetown, IN 47122

/s/ Thomas A. Barnard_______________

USDC IN/ND case 3:15-cv-00226-JD-MGG document 27 filed 07/10/15 page 26 of 26