Case Information
*1 Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
Lоcated below sea level, with Lake Pontchartrain to the north and the Mississippi River to the south, New Orleans is particularly susceptible to flooding. This case arises from recent efforts to address this intractable problem. Created twenty years ago, the Southeast Louisiana Urban Flood Control Project aimed to reduce flooding by improving draining canals, increasing capacity for pump stations, and constructing new pump stations. But its efforts at constructing a new canal in New Orleans’s Ninth Ward resulted in complaints of property damage to surrounding homes. The result was this lawsuit seeking to certify a class of nearby property owners asserting claims of damaged property resulting from a variety of construction activities. The district court denied class certification, holding that the Rule 23 requirements of commonality, predominance, and superiority were lacking, primarily because of the difficulty of establishing which defendants and which conduct caused the alleged damages. We consider whether that decision was an abuse of discretion.
I.
Although dwarfed by the later flooding of Hurricane Katrina, the New Orleans area experienced a major flood in May 1995 that caused a number оf deaths and more than $3 billion in damage. That reminder of the threat that flooding poses to southeast Louisiana led Congress to provide increased flood protection for the region in the Water Resources Development Act of 1996. That law authorized the Army Corps of Engineers to partner with state and local agencies to improve drainage and prevent flooding in Orleans, Jefferson, and St. Tammany Parishes via the Southeast Louisiana Urban Flood Control Project. Pub. L. No. 104–303, 110 Stat. 3658, § 533.
The complaints that gave rise to this lawsuit are not the only reported problems with the Project’s drainage improvement efforts. Other construction projects have resulted in dozens of lawsuits that proceeded as consolidated actions rather than class actions. See Holzenthal v. Sewerage Water Bd. of New Orleans , 999 So.2d 1191 (La. App. 4 Cir. 2008) (three consolidated cases); Shimon v. Sewerage and Water Bd. of New Orleans , No. CIV.A.05-1392, 2006 WL 2475309, at *1 (E.D. La. Aug. 24, 2006) (sixty-six consolidated cases).
This case that Plaintiffs want to pursue as a class action involves the construction of the Dwyer Road Intake Canal, a 7,000-feet-long, 14-to-16-feet- deep box culvert along Dwyer Road in New Orleans’ Ninth Ward. The Project required the excavation of 110,000 cubic yards of soil, the erection of a temporary retaining structure, and significant pile driving. A сomprehensive dewatering effort was also implemented to keep ground and rain water from filling excavated areas. The project began in September 2008 and took more than five years to complete.
The named plaintiffs filed this lawsuit in state court in August 2012, seeking to represent a class of property owners and residents who owned immovable property or resided within 1,000 feet to the north or south of the Project. Approximately 1,054 houses are located within this area. Plaintiffs allege that construction and related activities such as excavation, dewatering, and pile driving damaged and stigmatized their property and caused them mental anguish and emotional distress.
The suit alleges state law causes of action for inverse condemnation; strict liability under Louisiana Civil Code Artiсles 2317, 2317.1, and 667; failure to protect from vice, ruin or defect under Civil Code Articles 662, 667, and 668; negligence; and intentional torts. Plaintiffs originally sued several defendants but then dismissed all of them except for the Sewerage and Water Board of New Orleans, which Plaintiffs claim exercised oversight and control over the Project. Left as the sole defendant, the Board filed a third party demand against Hill Brothers Constructiоn, the general contractor for the Project. Hill Brothers removed the suit to federal court under the federal officer removal statute (28 U.S.C. § 1442(a)(1)) on the ground that its challenged conduct related to work it performed on a Corps of Engineers contract. Hill Brothers also brought its subcontractors, Blue Iron Foundation and Shoring, L.L.C., Griffin Dewatering Southwest, L.L.C., and Bhate Geosciences Corporation into the case as third party defendants. [1] Plaintiffs later named Hill Brothers, its subcontractors, and its insurers as direct defendants in an amended pleading.
Plaintiffs sought remand to state court, arguing that Hill Brothers did not comply with the specifications of the Corps contract and thus could not establish the government contractor defense. The district court disagreed and kept the case in federal court. Plaintiffs tried to аppeal that jurisdictional ruling by invoking a provision in the Class Action Fairness Act that grants courts of appeals the discretion to engage in interlocutory review of remand rulings. 28 U.S.C. § 1453(c). But we dismissed the appeal, concluding that there was no authority for interlocutory review because removal was based on the federal officer removal statute rather than the statute governing removal of сlass actions. Crutchfield v. Sewerage & Water Bd. of New Orleans , 603 F. App’x 350 (5th Cir. 2015).
Plaintiffs then moved to certify a class. The district court denied Plaintiffs’ motion, concluding that they failed to satisfy the requirements of commonality under Rule 23(a) and predominance and superiority under Rule 23(b)(3). We then granted Plaintiffs’ request for an interlocutory appeal pursuant to Rule 23(f).
II.
Plaintiffs do not attempt to revive their challenge to federal jurisdiction
that we previously held we did not have jurisdiction to consider. But with the
Rule 23(f) procedure now giving us appellate jurisdiction over the certification
decision, we may consider
sua sponte
whether the district court had
jurisdiction over the case that would authorize a certification ruling.
See
Giannakos v. M/V Bravo Trader
,
We agree with the district court that jurisdiction exists under the federal
officer removal statute. That statute creates federal jurisdiction even over
cases brought against private parties if they are sued for conduct they
committed under the direction of federal authorities and for which they have a
colorable defense under federal law.
See Savoie v. Huntington Ingalls, Inc.
,
817 F.3d 457, 460–61 (5th Cir. 2016);
Winters v. Diamond Shamrock Chem.
Co.
,
III.
We thus turn to the district сourt’s denial of the motion for class
certification, which we review for abuse of discretion.
Allison v. Citgo
Petroleum Corp.
,
For all Rule 23 class actions, a party seeking certification must show that: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” F ED . R. C IV . P. 23(a). The lawsuit must then meet one of the criteria found in Rule 23(b). F ED . R. C IV . P. 23(b). The relevant provision here is Rule 23(b)(3), which allows a class action to be maintained if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” F ED . R. C IV . P. 23(b)(3).
Although the district court gave three separate grounds for denying the motion for class certification (commonality under Rule 23(a); and both predominance and superiority under Rule 23(b)(3)), it found that the “fatal defect” was the lack of predominance. We agree thаt predominance is the most glaring obstacle to certifying this case, so we address only that ruling in affirming the district court’s decision.
The predominance requirement “tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.”
Amchem
Prods., Inc. v. Windsor
,
[a]n individual question is one where ‘members of a proposed class will need to present evidence that varies from member to member,’ while a common question is one where ‘the same evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible to generalized, class–wide proof.’ Id. (quoting 2 William B. Rubenstein, N EWBERG ON C LASS A CTIONS §4:50, pp. 196–97 (5th ed. 2012)). “When ‘one or more of the central issues in the actiоn are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.’” Id. (quoting 7AA Charles Alan Wright & Arthur R. Miller, F EDERAL P RACTICE AND P ROCEDURE § 1778, pp. 123–24 (3d ed. 2005)). At bottom, the inquiry requires the trial court to weigh common issues against individual ones and determine which category is likely to be the focus of a trial.
In performing that assessment, the district court did not abuse its
discretion in concluding that individualized questions of causation would be
the central, or predominant, issue when this case is tried. It explained that to
establish causation, class members would have to present individualized
evidence related to the age, size, structure, location, and damage of each
affected property. Indeed, the number of defendants and different conduct
they engaged in demonstrate how individualized this inquiry will be. Plaintiffs
contend that a variety of construction activities, performed by the various
defendants at different times over a five year period, caused their damages.
Examples include the distinct acts of engineering and construction design, pile
driving, dewatering, earth moving, equipment hauling, and debris removal. To
prevail, each plaintiff will need to prove which activities performed by which
defendants caused which damages to a particular property. Repeat that
inquiry for the more than 1,000 houses that would make up the proposed class,
and a “series of mini-trials” would result.
See State of Alabama v. Blue Bird
Body Co., Inc.
,
Looking beyond the allegations to the evidence Plaintiffs hope to use to establish causation, the district court found even more indications of how particularized this evidence will be for each property. Plaintiffs’ own experts acknowledge that not every property responds to vibrations and dewatering in the same way. For example, a geoprofessional engineer admitted that vibrations may affect structures within the same neighborhood differently, depending on the location of the structure, its construction, the code conditions under which it was built, and even whether the structure is “in tune” with the frequency of the vibration. Another of their experts opined that the level of ground and structure vibrations caused by construction activities depends on several variables including, for example, soil medium, construction method, and heterogeneity of soil deposits аt the site.
Plaintiffs argue, however, that individualized proof of causation is not required for their pile driving and dewatering claims under Louisiana law. They cite Lombard v. Sewerage & Water Bd. of New Orleans , 284 So.2d 905 (La. 1973), another case involving claims of property damage related to the construction of a New Orleans drainage canal. Lombard involved seventeen consolidated lawsuits with 119 plaintiffs. Id. at 906. Only eight of the 119 plaintiffs testified, but the plaintiffs stipulated that if еach plaintiff were called to testify, their testimony as to causation and damages would be substantially the same as the eight testifying plaintiffs. Id. at 912. The Supreme Court of Louisiana found that the plaintiffs’ testimony regarding the condition of their properties sufficiently established that their damages were caused by the construction. Id. at 913. Based on Lombard , Plaintiffs argue that their testimony as to the condition of their property beforе and after the construction activities, combined with other data, should allow causation to be determined on a classwide basis.
But
Lombard
was not a class action. The eight testifying plaintiffs were
only representing other named parties who had stipulated that their testimony
would be substantially similar; they were not seeking to represent the interests
of hundreds of unnamed parties which gives rise to the due process concerns
that animate Rule 23’s requirements.
See Califano v. Yamasaki
,
Moreover, while causation, like most things, may be proved
circumstantially, under the governing Louisiana law “circumstantial evidence
must exclude other reasonable hypotheses with a fair amount of certainty.”
Lombard
,
Although the district court called it the “fatal defect,” causаtion is not
the only individualized issue. Damages is another. Plaintiffs argue that
damages can be determined using a single formulaic approach, but they have
not provided one. Any such formula would at a minimum need to take account
of the variances in age, size, type, construction, condition, soil composition, and
location of the properties.
See Steering Comm. v. Exxon Mobil Corp.
, 461 F.3d
598, 602 (5th Cir. 2006) (finding that plaintiffs’ damages claims were not
subject to any formulaic calculation because (1) “each . . . plaintiff suffered
different alleged periods and magnitudes of exposure . . . and different alleged
symptoms”; (2) “some [plaintiffs] allege[d] both personal and property injuries
while others allege[d] only one or the other”; and (3) “many plaintiffs
allege[d] . . . emotional and other intangible injuries . . . [which] necessarily
implicates the subjective differеnces of each plaintiff’s circumstances . . . .”);
Corley v. Orangefield Indep. Sch. Dist.
,
Of course, damages are often an individualized determination and Plaintiffs correctly note that courts often certify class actions and provide for bifurcated damages trials after a classwide trial on other issues. See , e.g. , Watson v. Shell Oil Co. , 979 F.2d 1014, 1016–18 (5th Cir. 1992) (affirming district court’s decision to certify a bifurcated clаss action in which liability and punitive damages would be resolved commonly, and injury, causation, and actual damages would be resolved individually). But even though trial courts have flexibility in crafting bifurcated proceedings once a case is certified, the predominance inquiry that is a prerequisite to certification requires assessing all the issues in a case—including damages—and deciding whether the common ones will be more central than the individual ones. Corley , 152 F. App’x at 355 (“[P]laintiffs must first show that the cause of action, taken as a whole, satisfies the predominance requirement of Rule 23(b)(3).”). The district court did not err in concluding that highly individualized issues of both causation and damages would predominate over any common liability questions or defenses that might exist.
Plaintiffs nonetheless compare this case to other tort сases in which we
have upheld certification decisions. To be sure, although not the paradigmatic
class action case involving a small amount of damages that makes individual
or consolidated suits impractical,
[2]
we have upheld certification of class actions
in certain “mass tort” cases. But in addition to the much different procedural
posture in those cases of reviewing whethеr a district court had abused its
discretion in
certifying
the class, they involved single episodes of tortious
conduct usually committed by a single defendant.
See In re Deepwater Horizon,
739 F.3d 790 (5th Cir. 2014) (affirming approval of settlement class for
explosion at offshore platform);
Mullen v. Treasure Chest Casino, LLC
, 186
F.3d 620, 626 (5th Cir. 1999) (affirming trial court’s holding that common
issues would predominate because the class members “claim injury from the
same defective ventilation system over the same general pеriod of time”
against a single defendant);
Watson
,
* * * The denial of certification is AFFIRMED. The case is remanded, which will allow the district court to consider how the case of the named plaintiffs should proceed.
Notes
[1] Blue Iron installed and extracted metal sheet pilings on the Project as part of the temporary restraining structure; Griffin designed, installed, and maintained the dewatering system for the Project; and Bhate is alleged to have provided geotechnical services and “aid in [quality control]” on the Project.
[2] Indeed, the advisory committee notes to Rule 23 state that “[a] ‘mass accident’ resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.” See F ED . R. C IV . P. 23(b)(3) advisory committee’s note to 1966 amendment.
[3] The cases from other circuits on which Plaintiffs rely also invоlve single episodes of
tortious conduct committed by a single defendant.
See Gintis v. Bouchard Transp. Co.
, 596
F.3d 64 (1st Cir. 2010) (vacating and remanding for evaluation of predominance and
superiority requirements in case involving allegations of property damage resulting from an
oil spill);
Mejdrech v. Met-Coil Sys. Corp.
,