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United States District Court for the Northern District of Indiana, South Bend Division
July 11, 2016, Decided; July 11, 2016, Filed
Case No. 3:15-CV-226 JD
OPINION AND ORDER
This is a putative class action arising out of alleged environmental contamination that originated at a plant formerly operated by defendant Johnson Controls, Inc. The plaintiffs, a number of individuals who own property or reside in an adjacent neighborhood, allege that contamination primarily consisting of trichloroethylene (TCE) entered the groundwater and migrated onto their properties. In 2007, Johnson Controls sold the plant to defendant Tocon Holdings, LLC, which briefly operated a manufacturing facility at the property, and more recently began demolishing the plant, which the plaintiffs argue has caused additional environmental hazards. The plaintiffs filed this action in state court, asserting a number of claims arising under state law on behalf of a proposed class consisting of individuals who have owned, rented, or occupied properties affected by the contamination. After litigating the case in state court for nearly a year, Johnson Controls filed a notice of removal, invoking federal jurisdiction under the Class Action Fairness Act. In response, the plaintiffs moved to remand this action back to state court. They [*3] argue that the removal was untimely, that Johnson Controls waived its right to remove, and that this case falls within the local controversy exception to the Class Action Fairness Act. For the reasons that follow, the Court denies the motion to remand.
I. FACTUAL BACKGROUND
Johnson Controls operated a plant in Goshen, Indiana from approximately 1937 through 2006, where it manufactured parts for thermostats and building control systems. The plant is adjacent to a residential neighborhood, and is also located near several business properties and Goshen High School. Through most of its operations at the plant, Johnson Controls used TCE—which can cause cancer and other serious illnesses—and other hazardous chemicals as part of its manufacturing process. The plant discharged its hazardous waste into an adjacent creek until 1965, after which it began storing the waste pending off-site disposal. Even then, however, there were a number of leaks and discharges of TCE and other hazardous chemicals into the ground.
In 1991, Johnson Controls began investigating TCE contamination of the soil at and around the plant. In a report dated the following year, its environmental consultant described a plume [*4] of contamination consisting of TCE and other hazardous chemicals that extended over a mile to the west of the plant. It also sampled the private drinking water wells of two residential homes in the plume and discovered extremely high concentrations of TCE. Over the next four years, Johnson Controls conducted more sampling and installed extraction wells designed to reduce the amount of TCE and other hazardous chemicals migrating underneath the neighborhood. In 1997, Johnson Controls also signed a Voluntary Remediation Agreement with the Indiana Department of Environmental Management, which established timetables for Johnson Controls to investigate and remediate the contamination. The complaint alleges, though, that Johnson Controls continued to operate its extraction wells in an ineffective and ultimately futile attempt to remediate the contamination, and that it failed to completely delineate the boundaries of the plume.
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2016 U.S. Dist. LEXIS 89278 *; 2016 WL 3662263
AMOS and DEBBIE HOSTETLER, et al., Plaintiffs, v. JOHNSON CONTROLS, INC., et al., Defendants.
Subsequent History: Sanctions disallowed by Hostetler v. Johnson Controls, 2016 U.S. Dist. LEXIS 204390 (N.D. Ind., Dec. 22, 2016)
Motion denied by Hostetler v. Johnson Controls, Inc., 2017 U.S. Dist. LEXIS 10006, 2017 WL 359852 (N.D. Ind., Jan. 25, 2017)
Stay denied by Hostetler v. Johnson Controls, 2017 U.S. Dist. LEXIS 229931 (N.D. Ind., Feb. 21, 2017)
Reconsideration denied by, Motion denied by, Motion granted by, Motion denied by, As moot, Costs and fees proceeding at Hostetler v. Johnson Controls, Inc., 2017 U.S. Dist. LEXIS 137685, 2017 WL 3700345 (N.D. Ind., Aug. 28, 2017)
Class certification denied by, Motion granted by, in part, Motion denied by, in part, Motion denied by Hostetler v. Johnson Controls, Inc., 2018 U.S. Dist. LEXIS 137872, 2018 WL 3868848 (N.D. Ind., Aug. 15, 2018)
Motion granted by, in part, Motion denied by, in part Hostetler v. Johnson Controls, 2020 U.S. Dist. LEXIS 151437, 2020 WL 4915668 (N.D. Ind., Aug. 21, 2020)
Motion granted by Hostetler v. Johnson Controls, 2020 U.S. Dist. LEXIS 169526, 2020 WL 5543081 (N.D. Ind., Sept. 16, 2020)
Motion granted by, in part, Motion denied by, in part Hostetler v. Johnson Controls, 2020 U.S. Dist. LEXIS 186557, 2020 WL 5959811 (N.D. Ind., Oct. 8, 2020)
Motion denied by Hostetler v. Johnson Controls, 2020 U.S. Dist. LEXIS 189276, 2020 WL 6044130 (N.D. Ind., Oct. 13, 2020)
Summary judgment granted by, in part, Motion granted by, Motion denied by, As moot Hostetler v. Johnson Controls Inc., 2021 U.S. Dist. LEXIS 188161, 2021 WL 4477463 (N.D. Ind., Sept. 30, 2021)
Partial summary judgment denied by, Summary judgment granted by, in part, Summary judgment denied by, in part Hostetler v. Johnson Controls Inc., 2021 U.S. Dist. LEXIS 211444, 2021 WL 5087261 (N.D. Ind., Nov. 2, 2021)
Prior History: Schmucker v. Johnson Controls, Inc., 90 F. Supp. 3d 786, 2015 U.S. Dist. LEXIS 24591 (N.D. Ind., Mar. 2, 2015)
removal, contamination, citizenship, clock, Plaintiffs', reliable, state court, notice, plant, bias, public record, properties, class action, non-response, remediate, neighborhood, injunction, damages, right to remove, class member, investigate, waive, two-thirds, residents, amount in controversy, proposed class, random sample, extrapolated, allegations, statistical
Civil Procedure, Removal, Procedural Matters, Time Limitations, Preliminary Considerations, Removal Waivers, Jurisdiction, Diversity Jurisdiction, Amount in Controversy, Special Proceedings, Class Actions, Class Action Fairness Act, Citizenship, Citizenship, Individuals, Evidence, Burdens of Proof, Allocation, Preponderance of Evidence, Admissibility, Expert Witnesses, Daubert Standard, Types of Evidence, Testimony, Expert Witnesses, Weight & Sufficiency, Business & Corporate Compliance, Limited Liability Companies, Business & Corporate Law, Limited Liability Companies, Business Entities