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Abrego v. Dow Chem. Co

United States Court of Appeals for the Ninth Circuit

March 7, 2006, Argued and Submitted, Pasadena, California ; April 4, 2006, Filed

No. 06-55109

Opinion

 [*677]  PER CURIAM:

The recently enacted Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4, [**2]  alters the landscape for federal court jurisdiction over class actions. In addition to traditional class actions, CAFA covers certain other cases involving large numbers of plaintiffs, denominated "mass actions." Dow Chemical Company ("Dow") brings this interlocutory appeal, 2 pursuant to 28 U.S.C. § 1453(c)(1), 3 from the district court's order remanding this purported "mass action."

 [**3]  Dow maintains that under CAFA and contrary to preexisting removal jurisdiction law: (1) plaintiffs bear the burden of  [*678]  refuting the district court's removal jurisdiction; (2) a "mass action" is removable regardless of whether there is jurisdiction over all plaintiffs whose claims are necessary to qualify the action as a mass action; and (3) the district court must allow jurisdictional discovery to determine the amount in controversy. The disputes between the parties on these discrete issues reflect a larger disagreement over whether the changes wrought by CAFA generally are limited to those enunciated the CAFA's text, or whether courts should infer a broader transformation of jurisdictional principles than the statutory language indicates.

We hold that ] CAFA did not shift to the plaintiff the burden of establishing that there is no removal jurisdiction in federal court and that Dow did not meet its burden. We therefore affirm the district court's remand of this action to state court. We save for a later day detailed consideration of CAFA's muddled "mass action" provisions.

One thousand one hundred and sixty Panamanian banana plantation workers ("the workers") filed [**4]  a complaint asserting claims stemming from their alleged exposure to 1, 2-dibromo-3-chloropropane ("DBCP"), a chemical pesticide sold under the brand names "Nemagon" and "Fumazone." The operative complaint alleges that although the Environmental Protection Agency banned almost all DBCP use in the United States in 1979, the defendants continued to distribute and use the pesticide on plantations in Panama. The workers allege that they suffered "sterility and other serious injuries" as a result of exposure to the pesticide and seek an unspecified amount of special, general, and punitive damages, pre- and post-judgment interest, and attorneys' fees and costs.

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443 F.3d 676 *; 2006 U.S. App. LEXIS 8077 **

ANTONIO ABREGO ABREGO, et al. Plaintiffs - Appellees, v. THE DOW CHEMICAL CO, et al.; SHELL OIL COMPANY, d/b/a SHELL CHEMICAL COMPANY, and SHELL AGRICULTURAL CHEMICAL COMPANY, Defendants - Appellants.

Prior History:  [**1]  Appeal from the United States District Court for the Central District of California. D.C. No. CV-05-03608-RGK. R. Gary Klausner, District Judge, Presiding.

Disposition: AFFIRMED.

CORE TERMS

removal, mass action, district court, state court, amount in controversy, class action, jurisdictional amount, federal court, discovery, diversity, original jurisdiction, provisions, damages, federal jurisdiction, civil action, legislative history, exceeds, cases, parties, costs, jurisdictional requirement, committee report, civil case, principles, ambiguous, remands, burden of establishing, diversity jurisdiction, citizens of the state, statutory language

Civil Procedure, Preliminary Considerations, Jurisdiction, General Overview, Appeals, Standards of Review, De Novo Review, Diversity Jurisdiction, Jurisdictional Sources, Removal, Special Proceedings, Class Actions, Governments, Legislation, Interpretation, Amount in Controversy, Determination