Von R. TRIMBLE, Jr., on his own behalf and on behalf of others similarly situated; Douglas S. Campbell, on his behalf and on behalf of others similarly situated; Marci Campbell, on her own behalf and on behalf of others similarly situated, Plaintiffs-Appellants, v. ASARCO, INC., a New Jersey Corporation, Defendant-Appellee.
No. 99-2894
United States Court of Appeals, Eighth Circuit
Submitted: March 15, 2000. Filed: Nov. 28, 2000.
232 F.3d 946
We need not decide which test is proper, however, because under either test, Chu‘s testimony is sufficient to support the Board‘s decision. First, the adjustment of Jahn‘s termination date, her assignments, and her training, combined with Chu‘s equivocation about her status once Carroll started and his representations that New World had a history of converting temporary employees to permanent ones, rendered the December 11 termination date uncertain. Second, with its acknowledgment that Jahn knew that New World was considering her for other positions, Chu‘s testimony establishes that both Jahn and New World recognized that New World had a continuing interest in their employment relationship and is sufficient to establish that Jahn had a reasonable expectation of continued employment. Because Jahn was apparently being assigned some of the duties of the open positions, New World‘s argument that her status with regard to them was identical to that of any other applicant is unpersuasive.
New World also argues that the Board improperly considered evidence of Jahn‘s status after the employment eligibility date to determine her status as of that date. We find nothing in the Board‘s order to support this contention. The Board did note that Jahn was still employed by New World at the time of the hearing, but it did so only after determining from Chu‘s testimony that she was entitled to vote.
Finally, New World contends that the Board erred in declining to draw an adverse inference from Jahn‘s failure to testify at the hearing, arguing that the logical conclusion was that her testimony would have been against the union‘s interests. We have held that “[t]he failure of a charging party to testify requires an inference that her testimony would have been unfavorable to the General Counsel‘s case.” NLRB v. MDI Commercial Servs., 175 F.3d 621, 628 (8th Cir.1999). Jahn was not a charging party in this action, however. Moreover, the inference rule “permits an adverse inference to be drawn; it does not create a conclusive presumption against the party failing to call the witness.” Rockingham Machine-Lunex v. NLRB, 665 F.2d 303, 305 (8th Cir.1981). The hearing officer fully credited the testimony of Chu and New World‘s other witness. If New World had thought that Jahn‘s testimony would have clarified matters, it does not appear why it could not have called her as a witness. Cf. NLRB v. Color Art, Inc., 932 F.2d 723 (8th Cir. 1991).
The Board‘s order will be enforced.
Jimmie Grosvenor, on his behalf and on behalf of others similarly situated, Plaintiff.
Ernest Deplanty, Plaintiff.
Before McMILLIAN, FLOYD R. GIBSON1 and MORRIS SHEPPARD ARNOLD, Circuit Judges.
McMILLIAN, Circuit Judge.
Plaintiffs, a putative class of over 30,000 current and future residents of a geographic area near a former lead smelter and refinery (hereinafter “the site” or “the Asarco site“) located in Omaha, Nebraska, appeal from a final judgment entered in the United States District Court2 for the District of Nebraska dismissing for lack of subject matter jurisdiction their third amended complaint against Asarco, Inc. (Asarco), the owner and former operator of the site. See Trimble v. ASARCO, Inc., 83 F.Supp.2d 1034 (D.Neb.1999) (judgment). For reversal, plaintiffs argue that the district court erred in holding that it lacked federal question jurisdiction over plaintiffs’ claim for recovery of response costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),
The notice of appeal was timely filed pursuant to
Background
On September 5, 1997, plaintiffs brought this class action against Asarco, pursuant to
Focusing on Asarco‘s Rule 12(b)(1) motion, the district court held that it lacked subject matter jurisdiction over plaintiffs’
The district court further held that it lacked subject matter jurisdiction over plaintiffs’ state law claims. The district court reasoned that, for jurisdiction to be predicated upon
Plaintiffs filed a third amended complaint on January 11, 1999. On January 26, 1999, Asarco renewed its motion to dismiss for lack of subject matter jurisdiction. Asarco argued in its renewed motion to dismiss that subject matter jurisdiction could not be based upon
[W]hether the plaintiffs have “incurred” “necessary costs of response” within the meaning of 42 U.S.C.
§ 9607(a)(4)(B) of CERCLA, presents a mixed question of fact and law. The court finds and concludes that the plaintiffs have “incurred” no liability and no costs; that the plaintiffs have, therefore, failed to allege an essential element of a private cause of action under CERCLA; and that subject matter jurisdiction of this action cannot be predicated on 28 U.S.C. § 1331 .
Regarding diversity jurisdiction—in particular, the $75,000 amount-in-controversy requirement—the district court opined that, under Nebraska law, an award for property damage would be limited by the Nebraska Supreme Court to the fair market value of the property immediately preceding the damage. See id. at 1041-42. The district court explained:
This court believes, and, therefore, predicts that the Nebraska Supreme Court, if faced with the issue today, would adopt the rule set forth in Keitges v. VanDermeulen, 240 Neb. 580, 483 N.W.2d 137, 143 (Neb.1992), and “L” Investments, Ltd. v. Lynch, 212 Neb. 319, 322 N.W.2d 651, 656 (Neb.1982), limiting the recoverable costs of restoration or remediation to the market value of the property.
Id. at 1041. The district court then determined that the cost to remediate plaintiffs’ properties, limited by their market values, plus any damages arising from incidental burdens associated with such remediation, could not meet the $75,000 jurisdictional amount-in-controversy requirement for each plaintiff. See id. at 1041 & n. 4.
Finally, the district court rejected plaintiffs’ argument that they were entitled to damages for the costs of future medical monitoring and could thereby satisfy the $75,000 amount-in-controversy requirement under
[T]he plaintiffs have cited no authority, and the court has found none, which would suggest that Nebraska law recognizes either a cause of action for medical monitoring or a remedy involving the creation of a medical monitoring fund. There exists no pending or prospective legislation to authorize a cause of action or a remedy for medical monitoring, and the court finds it improbable that the Nebraska courts would judicially fashion such a right or remedy.
Thus, the district court granted Asarco‘s motion to dismiss the third amended complaint for lack of subject matter jurisdiction, and judgment was entered for Asarco. See id. (May 20, 1999) (judgment). Plaintiffs timely appealed.
Discussion
Dismissal for lack of subject matter jurisdiction under 28 U.S.C. § 1331
We address, as a threshold matter, the district court‘s reliance on lack of subject matter jurisdiction as its basis for dismissing plaintiffs’ CERCLA claim. As noted above, Asarco originally moved to dismiss the second amended complaint on grounds of both lack of subject matter jurisdiction under
Asarco argues that the district court‘s dismissal for lack of subject matter jurisdiction was consistent with the rule of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), because there can be no subject matter jurisdiction under
In Bell v. Hood, the Supreme Court explained:
Jurisdiction ... is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.
327 U.S. at 682-83, 66 S.Ct. 773 (footnote and citations omitted).
Consistent with Bell v. Hood, a motion to dismiss a federal claim, if predicated on failure to establish an essential element of the cause of action, should generally be analyzed under
As noted above, Asarco relies on Holloway, a decision from the District Court for the Eastern District of Louisiana, as support for the district court‘s dismissal of plaintiffs’ CERCLA claim in the present case. In Holloway, the district court dismissed CERCLA claims after concluding that the element of response costs had not been adequately pled. At first glance, Holloway does appear to deviate from the general rule that motions to dismiss federal claims, where based upon the plaintiff‘s failure to establish an essential element, should be analyzed under
In our opinion, LaSalle National Trust is more instructive. In that case, the Seventh Circuit very aptly explained why it is important to distinguish dismissals under
[I]t is obviously possible that a plaintiff may successfully invoke federal jurisdiction, for purposes of
28 U.S.C. § 1331 , and yet may lose on some other ground, such as a failure to state a claim on which relief can be granted or failure to prove the merits after a full trial. A plaintiff‘s claim may appear to be sufficient on its face, but a defendant may have a compelling affirmative defense. In some cases, the distinction between a claim that is wholly frivolous for jurisdictional purposes and a claim that is doomed on the merits may seem medieval in its fineness, and may be of little practical importance. Nonetheless, the distinction is one that the Supreme Court has always recognized, and it rests on both sound policy grounds as well as practical considerations. From a policy standpoint, it underscores the importance of giving a full hearing to those who are attempting to raise claims in federal court, even if those claims are eventually unsuccessful. From the more pragmatic side, the way in which the facts are handled underFed.R.Civ.P. 12(b)(1) differs significantly from the correct approach for purposes of Rule 12(b)(6), and the Rule 12 procedures differ again from those used for Rule 56.
76 F.3d at 143-44 (citing Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).
We agree with the Seventh Circuit that making the distinction between a claim that is “wholly frivolous for jurisdictional purposes” and one that is “doomed on the merits” is neither merely academic nor unnecessary. The distinction is based on longstanding policy and practical considerations which are not trivial and cannot be overlooked. In the present case, plaintiffs’ CERCLA claim does not clearly appear to be immaterial and made solely for the purpose of obtaining jurisdiction, nor is it wholly insubstantial and frivolous. Thus, the district court should not have dismissed the claim under
Godfrey v. Pulitzer Pub. Co., 161 F.3d 1137, 1142 (8th Cir.1998) (reversing and remanding for erroneous jurisdictional analysis where the district court granted the defendant‘s
In LaSalle National Trust, the Seventh Circuit also explained how these dispositive motions are to be treated differently:
It is plain that the factual posture of these kinds of pretrial dispositive motions can be critical. In the 12(b)(1) case, the district court is entitled to find jurisdictional facts itself; in the 12(b)(6) case, the court is required to keep the case if there is any set of facts under which the plaintiff might prevail; and for Rule 56, all disputed material facts must be viewed in the light most favorable to the party opposing the motion, although that party has the burden under Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), to come forward with evidence showing the genuineness of any factual disputes that it asserts must be tried.
76 F.3d at 144 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
Conversion to summary judgment matter
In the present case, matters outside the pleadings related to response costs were presented to, and not excluded by, the district court. Accordingly, Asarco‘s motion to dismiss not only should have been treated initially as a motion under
The question now before us is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See
Response costs as an element of plaintiffs’ CERCLA claim
Plaintiffs must establish the following elements in order to prove their CERCLA private cost-recovery claim under
plaintiffs had not “incurred” such costs merely because they may be obligated in the future to reimburse their attorneys if the litigation ends successfully. In the present appeal, plaintiffs argue that their contingent liability to their attorneys for reimbursement of response costs is legally sufficient to establish that they, themselves, have “incurred” response costs within the meaning of the statute.
We assume, for the sake of argument, that some investigation and remediation has taken place to address soil contamination caused by Asarco.12 We also assume, without deciding, that some of those expenditures are, by their nature, “necessary costs of response” under CERCLA. See Key Tronic Corp. v. United States, 511 U.S. 809, 816-21, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994) (interpreting “necessary costs of response“); Johnson v. James Langley Operating Co., 226 F.3d 957, 962-64 (8th Cir.2000) (same).
It is not genuinely disputed that plaintiffs’ attorneys, not plaintiffs themselves, paid those expenditures and, moreover, that plaintiffs will be obligated to reimburse their attorneys for such expenditures only if plaintiffs ultimately prevail in this litigation. In other words, if, in the end, plaintiffs are unsuccessful, then they will have made no out-of-pocket payments for response costs and will have no legal obligation to do so.
The district court determined that the mere possibility that plaintiffs will be obligated in the future to pay for response costs is insufficient as a matter of law to satisfy the response costs element of their CERCLA claim. That determination is a matter of statutory interpretation, which we now review de novo. See Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 91 (2d Cir.2000) (Gussack Realty) (“We review the district court‘s statu-
Plaintiffs argue that the district court erred because this court “has explicitly held that a party can ‘incur’ expenses even if he or she does not actually pay for them.” Brief for Appellants at 19 (citing Farmland Indus., Inc. v. Frazier-Parrott Commodities, 111 F.3d 588, 591 (8th Cir.1997) (Farmland Industries)). In Farmland Industries, a commodities broker successfully defended a lawsuit brought in federal court by one of its customers and thereafter sought an award of attorneys’ fees under a provision in the brokerage contract. This court held that the broker had “incurred” the attorneys’ fees within the meaning of the brokerage contract, even though the broker‘s parent company had actually paid the attorneys’ fees, because the attorneys represented the broker and the broker was liable for the fees. See Farmland Industries, 111 F.3d at 591. Plaintiffs also cite Quarles Petroleum Co. v. United States, 213 Ct.Cl. 15, 551 F.2d 1201 (Ct.Cl.1977) (Quarles), for the proposition that one can “incur” expenses without actually paying for them. In Quarles, the Court of Claims held that the plaintiffs could recover environmental clean-up costs under the Federal Water Pollution Control Act (FWPCA) even though their insurer had actually paid the costs. Plaintiffs’ quote Quarles for its statement: “To incur means to become liable for or subject to; it does not mean to actually pay for.” See Brief for Appellants at 20 (quoting Quarles, 551 F.2d at 1205 (footnote omitted)). Plaintiffs further argue: “[c]ase law interpreting the FWPCA is relevant because CERCLA defines the NCP by referring to the NCP mandated by the FWPCA.” Id. (quoting United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 748 (8th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987)). Plaintiffs thus conclude that the district court erroneously believed that “incur” means “actually pay for,” in mistaken reliance upon In re Dant & Russell, Inc., 951 F.2d 246, 249-50 (9th Cir.1991) (Dant & Russell), which concerned a monetary award under CERCLA to pay for the costs of future work.13 See id. at 21. By contrast, plaintiffs argue, they are seeking to recover the costs of work that has already been done.
The cases upon which plaintiffs rely do not support the statutory interpretation they urge. First, none of the cases cited actually interprets the pertinent statutory provision,
The facts in the instant case clearly demonstrate that the plaintiffs through their own actions were liable for the costs resulting from the clean up operations. It was the plaintiffs’ general manager who negotiated assistance in cleaning up the spilled oil. As a result, the plaintiffs were liable to pay the persons and companies which had provided the goods and services in removing the spilled oil. The fact that the plaintiffs were insured and that the plaintiffs’ insurer paid out the total cost of the clean up operations is immaterial under [33 U.S.C.] § 1321.
213 Ct.Cl. 15, 551 F.2d 1201, 1205 (Ct.Cl. 1977) (footnote omitted).
We do not dispute plaintiffs’ point that a party may be found to have “incurred” a cost without having actually paid for it. As recognized in Farmland Industries and Quarles, a finding that a cost has been “incurred” may be based upon an existing legal obligation. However, the mere possibility, even the certainty, that an obligation to pay will arise in the future does not establish that a cost has been incurred, but rather establishes that a cost may be incurred, or will be incurred. Thus, Dant & Russell is instructive, as the district court recognized. In Dant & Russell, 951 F.2d at 249, the Ninth Circuit observed: “Under CERCLA‘s scheme for private action, response costs may not be recovered when there has been no commitment of resources for meeting these costs. Section 9607(a)(4)(B) permits an action for response costs ‘incurred‘—not ‘to be incurred.‘” Accord Gussack Realty, 224 F.3d at 92 (reversing award for future costs of cleaning up property because future response costs are not compensable under CERCLA). We therefore hold, upon de novo review, that plaintiffs have failed as a matter of law to assert a legally viable private cost-recovery claim under CERCLA,
Plaintiffs also point out that their CERCLA claim contains a request for declaratory judgment pursuant to
We hold that the district court did not err in dismissing plaintiffs’ CERCLA claim.
Dismissal for lack of diversity jurisdiction under 28 U.S.C. § 1332
As stated above, the district court dismissed plaintiffs’ state law claims pursuant to
Whether or not plaintiffs satisfy the $75,000 amount-in-controversy requirement under
We first address plaintiffs’ challenge to the district court‘s interpretation of the applicable federal jurisdictional statutes, upon which the district court concluded that each and every member of the plaintiff class must satisfy the $75,000 amount-in-controversy requirement in order to remain in the litigation. In 1969, the United States Supreme Court held in Snyder v. Harris, 394 U.S. 332, 336, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), that, in a diversity-based class action suit, individual class members’ separate and distinct claims could not be aggregated to satisfy the $75,000 amount-in-controversy requirement under
In the present case, the individual members of the plaintiff class are asserting separate and distinct claims related to their properties, and thus, under Snyder, their claims cannot be aggregated to satisfy the $75,000 amount-in-controversy requirement. See, e.g., Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296-97 (2d Cir.2000) (Mehlenbacher) (citing Snyder and holding that, in property owners’ diversity-based class action suit against owner of collapsed salt mine, class members could not aggregate claims based on damage to properties and economic losses in order to meet amount-in-controversy requirement). Moreover, if Zahn applies, then each and every member of the plaintiff class must meet the $75,000 threshold in order to remain in federal court. If Zahn does not apply, and supplemental jurisdiction may be exercised, then plaintiffs need only show that at least one member of the class meets the $75,000 jurisdictional requirement.
Plaintiffs argue that Congress overruled Zahn by its 1990 enactment of
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
(b) In any civil action of which the district courts have original jurisdiction founded solely on [
28 U.S.C. § 1332 ], the district courts shall not have supplemental jurisdiction under subsection (a) over
claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.
A few federal courts of appeals have considered § 1367‘s impact on Zahn, and they have reached divided conclusions. Compare Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928, 930 (7th Cir.1996) (holding that § 1367 overrules Zahn); Free v. Abbott Labs. (In re Abbott Labs.), 51 F.3d 524, 528 (5th Cir.1995) (same), aff‘d by an equally divided court, 529 U.S. 333, 120 S.Ct. 1578, 146 L.Ed.2d 306 (2000) (per curiam), with Leonhardt v. Western Sugar Co., 160 F.3d 631 (10th Cir.1998) (Leonhardt) (holding that § 1367 does not overrule Zahn). As the Second Circuit noted in Mehlenbacher, 216 F.3d at 297 & n. 10, the Supreme Court failed to resolve the circuit split when it affirmed the Fifth Circuit‘s decision in Free v. Abbott Labs. by an equally divided court.17 See 529 U.S. 333, 120 S.Ct. 1578, 146 L.Ed.2d 306 (2000) (per curiam).
The Eighth Circuit has yet to address the question of whether § 1367 overrules Zahn. In the present case, plaintiffs urge us to follow the Fifth and Seventh Circuits and hold that, if the district court has original diversity jurisdiction under
Upon careful de novo consideration, however, we agree with the district court that the Tenth Circuit‘s decision in Leonhardt states the better view. The Tenth Circuit reasoned as follows.
[U]nder the historical interpretation of § 1332, any plaintiff in a diversity class action—whether class representative or putative class member—who does not meet the jurisdictional amount in controversy must be dismissed from the action, and if no plaintiff can meet the amount in controversy, the entire class action must be dismissed. At issue here is whether the enactment of 28 U.S.C. § 1367, concerning supplemental jurisdiction, altered the historical aggregation rules under § 1332 for class actions. .... If the statutory language is clear and unambiguous, we normally find that language conclusive. If the language is ambiguous, however, we may “resort to legislative history as an aid to interpretation.” .... In determining that nothing in the language of § 1367 limited the broad grant of authority conferred by § 1367(a) so as to preserve the historical aggregation rules for class actions under § 1332, the Fifth and Seventh Circuits focused only on the absence of Rule 23 from the exceptions enumerated in
§ 1367(b). Those exceptions, however, concern only the exercise of supplemental jurisdiction over claims against defendants who are made parties to a diversity action under certain rules and claims by plaintiffs who seek to be added to an on-going diversity action. We are concerned, however, with whether Congress intended to change the rules about when a plaintiff can bring an initial diversity-based class action under Rule 23, where the court‘s original jurisdiction is based upon § 1332. The omission of Rule 23 from § 1367(b) has no bearing on that question.
In our view, a literal and textually faithful reading of § 1367(a) leads to the opposite conclusion from that of the Fifth and Seventh Circuits. Section 1367(a) specifically addressed “any civil action of which the district courts have original jurisdiction.” (Emphasis added.) It then provides for supplemental jurisdiction over transactionally related claims. Section 1332 is what confers original jurisdiction over diversity cases and it expressly requires that the “matter in controversy exceed[] the sum or value of $75,000.” While § 1332 does not expressly refer to class actions, the Supreme Court has noted that periodic congressional amendment of the diversity statute to alter only the amount in controversy evidences congressional agreement with the Court‘s holding that “matter in controversy” does “not encompass[] the aggregation of separate and distinct claims.” Thus, Congress in § 1367(a) expressly excepted claims brought under § 1332 and its well-understood definition of “matter in controversy.”
Furthermore, § 1367(b) itself supports this interpretation of § 1367(a). Section 1367(b) sets forth various situations in which a court, sitting in diversity, cannot exercise supplemental jurisdiction where the exercise of such jurisdiction “would be inconsistent with the jurisdictional requirements of § 1332.” That very language evidences a concern for preserving the historical and well-established rules of diversity. The fact that § 1367(b) prohibits the addition of claims and parties which would destroy diversity supports our interpretation of § 1367(a) as also fully respecting the rules of diversity in cases involving the original jurisdiction of the federal courts.
Thus, in our view § 1367(a) and (b) can be read literally, and unambiguously, to require each plaintiff in a class action diversity case to satisfy the Zahn definition of “matter in controversy” and to individually meet the $75,000 requirement.
160 F.3d at 637-40 (footnotes and citations omitted). Recognizing the statute‘s arguable ambiguity, the Tenth Circuit went on to consider the legislative background of
We agree with and adopt the reasoning of the Tenth Circuit in Leonhardt. We hold that the rule of Zahn remains viable notwithstanding Congress‘s enactment of § 1367. In the present case, therefore, the 30,000-plus members of the putative plaintiff class must each satisfy the jurisdictional amount-in-controversy requirement under
We now turn to the district court‘s determinations that the Nebraska Supreme Court would not recognize common law liability for medical monitoring and, even if it would, plaintiffs’ claims could not
Regarding the causes of action asserted under Nebraska law, the plaintiffs have cited no authority, and the court has found none, which would suggest that Nebraska law recognizes either a cause of action for medical monitoring or a remedy involving the creation of a medical monitoring fund. There exists no pending or prospective legislation to authorize a cause of action or a remedy for medical monitoring, and the court finds it improbable that the Nebraska courts would judicially fashion such a right or remedy. Consequently, in the absence of authority that Nebraska law recognizes a claim or remedy for the costs of future medical monitoring, the court declines to speculate that the allegations of the Third Amended Complaint seeking the creation of a medical monitoring fund furnish the jurisdictional amount otherwise absent in this action.
83 F.Supp.2d at 1041-42 (May 20, 1999).
Plaintiffs now contend that the district court should have waited for Asarco to file a motion for summary judgment challenging the medical monitoring claim, and then provided plaintiffs a full opportunity to argue the legal viability of that claim. Instead, plaintiffs argue, the district court sua sponte dismissed the medical monitoring claim prematurely and in violation of its own order of December 14, 1998.
Plaintiffs still have not cited any Nebraska authority for the proposition that damages may be awarded for future medical monitoring costs in the absence of a present physical injury. Thus, our recognition of such a cause of action would, in effect, expand substantive liability under Nebraska law. Under the circumstances, it would be both imprudent and improper for us to allow plaintiffs to pursue their medical monitoring claim. Cf. Tucker v. Paxson Mach. Co., 645 F.2d 620 (8th Cir. 1981) (in diversity case under Missouri law, rejecting plaintiff‘s argument for adoption in federal court of expanded strict products liability doctrine under state law, on ground that the trend was not well established); accord Birchler v. Gehl Co., 88 F.3d 518, 521 (7th Cir.1996) (“When we are faced with opposing plausible interpretations of state law, we generally choose the narrower interpretation which restricts liability, rather than the more expansive interpretation which creates substantially more liability.“); Pearson v. John Hancock Mut. Life Ins. Co., 979 F.2d 254, 259 (1st Cir.1992) (plaintiffs who chose federal forum “cannot justifiably complain if the federal court manifests great caution in blazing new state-law trails“); Villegas v. Princeton Farms, Inc., 893 F.2d 919, 925 (7th Cir.1990) (“federal court is not the place to press innovative theories of state law“). Having agreed with the district court, on de novo review, that plaintiffs have not asserted a cognizable medical monitoring claim under Nebraska law, we need not consider plaintiffs’ additional argument that their individual medical monitoring claims can be aggregated to satisfy the $75,000 jurisdictional requirement under
We next consider the district court‘s holding that, under Nebraska law, any recovery based upon damage to a landowner‘s property would be limited by the market value of that property. As stated above, the district court reasoned:
“This court believes, and therefore, predicts that the Nebraska Supreme Court, if faced with the issue today, would adopt the rule set forth in Keitges v. VanDermeulen, 240 Neb. 580, 483 N.W.2d 137, 143 (Neb.1992), and “L” Investments[, Ltd. v. Lynch, 212 Neb. 319, 322 N.W.2d 651 (Neb.1982) ], limiting the recoverable costs of restoration or remediation to the market value of the property.”
83 F.Supp.2d at 1041 (May 20, 1999).
Plaintiffs now argue that the cases cited by the district court to support its interpretation of Nebraska law contain mere dicta on the issue, and that several other cases support the contrary view. They
As stated above, we review the district court‘s determination of state law de novo. See Salve Regina College v. Russell, 499 U.S. at 231, 111 S.Ct. 1217. The district court, and this court on appeal, must look to the pertinent decisions of the Nebraska Supreme Court and, if none are available, related state court precedents, analogous decisions, considered dicta, and other reliable sources. Our role is to determine what the Nebraska Supreme Court‘s decision would be. See Lindsay Mfg. Co. v. Hartford Accident & Indem. Co., 118 F.3d 1263, 1267-68 (8th Cir.1997). Upon careful de novo review, we agree with the district court‘s interpretation of Nebraska law and conclude that the Nebraska Supreme Court would likely limit plaintiffs’ recoveries on state law claims alleging property damage to the market values of their properties. See, e.g., “L” Investments, Ltd. v. Lynch, 322 N.W.2d at 656 (when an improvement to realty is damaged, the measure of damages for negligence is the reasonable cost or repairing or restoring in like kind and quality, plus any other consequential damages properly proven; however, “an award for such damage should not exceed the market value of the property immediately preceding the damage to the property“). Most notably, in “L” Investments, Ltd. v. Lynch, the Supreme Court of Nebraska stated: “It seems that one ought not to be able to recover a greater amount for partial destruction than one could recover for total destruction. To the extent that our previous decisions on this matter ... are to the contrary, they are overruled.” Id. Accordingly, we agree with the district court that the recoverable costs of restoring or remediating a property would be limited under Nebraska law to its market value.
Finally, we turn to the district court‘s determination that none of the members of the plaintiff class has cognizable state law claims exceeding $75,000. Plaintiffs argue on appeal that the district court erroneously applied the preponderance of evidence standard, instead of the “legal certainty” standard, in reaching this determination. See Brief for Appellants at 38 (citing Larkin v. Brown, 41 F.3d at 388). Plaintiffs also argue that the district court improperly weighed evidence and resolved jurisdictional issues that are “bound up with the merits” of plaintiffs’ claims. See id. at 45-46 (citing Osborn, 918 F.2d at 730). In any event, plaintiffs suggest, the district court could not have determined—either to a legal certainty or by a preponderance of the evidence—that members of the plaintiff class who own and occupy contaminated property do not have state law claims against Asarco exceeding $75,000. We disagree.
As we have previously stated, findings by the district court of jurisdictional facts are to be reviewed for clear error. See Osborn, 918 F.2d at 730. Contrary to plaintiffs’ argument, this court did not change or disregard that standard of review when it indicated in Larkin v. Brown, 41 F.3d at 388, that a complaint predicated on diversity jurisdiction will be dismissed if it appears “to a legal certainty” that the claim is really for less than the jurisdictional amount. (Under such circum-
In the present case, while the district court could have been more specific in quantifying the market values of the individual plaintiffs’ properties and the costs of remediation, the district court reasonably concluded that those values were well below the jurisdictional limit. The district court also logically determined that, even if plaintiffs could recover attorneys’ fees on their state law claims (an issue we need not decide), their individual pro-rata shares could not be sufficient to get their claims above the jurisdictional threshold. In short, we have carefully reviewed the record in this case and the parties’ arguments on appeal, and we hold that the district court did not clearly err in finding that no member of the plaintiff class satisfies the jurisdictional amount-in-controversy requirement under
We hold that the district court did not err in dismissing plaintiffs’ state law claims for lack of subject matter jurisdiction.
Conclusion
For the reasons stated, the judgment of the district court is affirmed.
No. 00-1326.
United States Court of Appeals, Eighth Circuit.
Submitted: Oct. 18, 2000. Filed: Nov. 28, 2000.
Kenneth W. Rosenberg, argued, Washington, DC (Richard Farber, on the brief), for Defendant-Appellant.
Douglas E. Hoffman, argued, Sioux Falls, South Dakota (Michael M. Billion, on the brief), for Plaintiff-Appellee.