Olden v. LaFarge Corporation

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 7, 2004
• Docket: 02-1148
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Olden, et al. v. Lafarge Corp. No. 02-1148 ELECTRONIC CITATION: 2004 FED App. 0296P (6th Cir.) File Name: 04a0296p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Lawrence T. Hoyle, Jr., HOYLE, FICKLER, FOR THE SIXTH CIRCUIT HERSCHEL & MATHES, Philadelphia, Pennsylvania, for _________________ Appellant. Steven D. Liddle, MACUGA & LITTLE, Detroit, Michigan, for Appellees. ON BRIEF: Lawrence T. Hoyle, JULIE OLDEN, RICHARD X Jr., HOYLE, FICKLER, HERSCHEL & MATHES, HUNTER , WILBUR BLEAU, and - Philadelphia, Pennsylvania, Arlene Fickler, HOYLE, - MORRIS & KERR, Philadelphia, Pennsylvania, for all others similarly situated, Appellant. David R. Dubin, MACUGA & LITTLE, Detroit, - No. 02-1148 Plaintiffs-Appellees, - Michigan, for Appellees. > , _________________ v. - - OPINION LAFARGE CORP ., - _________________ Defendant-Appellant. - - CUDAHY, Circuit Judge. Julie Olden, Richard Hunter and N Wilbur Bleau represent a class of 3,600 persons who owned Appeal from the United States District Court single family residences in Alpena, Michigan, from April 19, for the Eastern District of Michigan at Bay City. 1996 to the present, and who allege personal and property No. 99-10176—David M. Lawson, District Judge. damage caused by toxic pollutants originating from a cement manufacturing plant belonging to the defendant Lafarge Argued: March 12, 2004 Corporation. They have brought a class action against Lafarge for current and future personal and real property Decided and Filed: September 7, 2004 damages, diminution in property value and various detrimental health effects caused by the emission of toxic Before: MARTIN, CLAY, and CUDAHY, Circuit Judges.* pollutants. The district court granted in part and denied in part Lafarge’s motion to dismiss and granted the plaintiffs’ motion to certify the class action. In this appeal, we are called upon to decide whether the plaintiffs’ class action against the nation’s largest cement plant is solid. In answering this weighty question, we must also decide for the first time in this circuit whether Zahn v. Int’l Paper Co., 414 U.S. 291, 301 (1973), has been overruled by 28 U.S.C. * The Honorable Richard D. Cudahy, Senior Circuit Judge of the § 1367. United States Court of Appeals for the Seventh Circuit, sitting by designation.

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I. In addition to property damage caused by emissions, the plaintiffs claim to have been exposed to numerous In the northeast section of Alpena, Michigan, Lafarge’s carcinogenic, mutagenic, and teratogenic toxic substances. cement manufacturing complex, consisting of a limestone Id. at 6 (Cplt. ¶¶ 24-25). Such toxins allegedly cause the rock quarry and a cement manufacturing plant, covers a full plaintiffs and their unborn children an increased risk of square mile. See App. at 368-70, 431. It is the largest cement cancer, impaired immunological function, birth defects and manufacturing plant in the nation and has been owned and developmental abnormalities, all of which are potentially life operated by Lafarge since 1987. Id. at 787 (noting that “the threatening and warrant continued medical monitoring. Id. at Lafarge plant is the largest cement plant in North America”). 6-7 (Cplt. ¶¶ 26-27). Additionally, the plaintiffs claim agony, The plaintiffs allege that throughout Lafarge’s ownership and anxiety, distress, embarrassment, humiliation, mental anguish, operation of the plant, it has continuously and systematically suffering and other related nervous conditions, psychological disregarded “proper procedure and maintenance of its disorders and emotional consequences. Id. at 18 (Cplt. ¶ 47). equipment that would prevent the emission of air contaminants into the surrounding community.” Olden Br. On April 19, 1999, the plaintiffs filed suit against Lafarge, At 6. As a result, Alpena residents submitted numerous alleging that the emissions trespassed on their property complaints to the Michigan Department of Environmental (Count II), created a nuisance (Count III) and arose from Quality (MDEQ). Id. at 6-7. In 1994, the MDEQ and Lafarge’s negligence or gross negligence (Count IV). Id. at Lafarge entered into a consent decree, in part, to remedy 15-21 (Cplt. ¶¶ 29-51). The plaintiffs seek compensatory Lafarge’s emission of air contaminants. App. at 301-27. damages for physical and mental illnesses caused by the However, Lafarge violated the terms of the decree resulting pollution and for the purchase of equipment to clean and in the accrual of over $5.4 million in stipulated penalties as of remove emitted substances from their property. The plaintiffs May of 2003. Id. at 219-22. In 2000, the consent decree was also seek exemplary and punitive damages, as well as an amended, requiring Lafarge’s further compliance with injunction requiring Lafarge to: (a) fund a medical monitoring statutory air pollution requirements. Id. at 435-62. program (Count I); (b) repair any damage to the plaintiffs’ property; (c) improve the operation of the plant to eliminate The plaintiffs claim that in the process of making cement, emissions; and (d) refrain from allowing emitted substances the Lafarge plant produces hazardous toxic waste and creates to be deposited on the plaintiffs’ property. Id. at 14, 19-21. emissions with hazardous by-products. Id. at 12 (Cplt. ¶¶ 17- 18). The class has alleged that release of the air contaminants On September 25, 2000, the plaintiffs moved to certify their from the Lafarge plant interferes with the use and enjoyment class action. Appx. at 39. On October 26, 2000, Lafarge filed of their real and personal property and has caused or will a combined motion to dismiss under Fed. R. Civ. P 12(b)(1) cause diminution in the market value of this property. Id. at (lack of subject matter jurisdiction); 12(b)(6) (failure to state 13 (Cplt. ¶¶ 20A, 21). For example, the cement dust emitted a claim), and to deny class certification, arguing that the by the plant has penetrated into the siding on houses, killed plaintiffs did not meet the requirements of Fed. R. Civ. P. rose bushes and left a white film over houses and vehicles in 23(a) (numerosity, typicality and adequacy of class Alpena. Id. at 280, 282-83. Additionally, hydrochloric acid, representation); 23(b)(2) (individualized money damages a byproduct of the cement manufacturing process, has overwhelm the requested injunctive relief); and 23(b)(3) degraded roofs, piping, concrete and the aluminum windows (individuality of interests, manageability of the action, etc.). and doors of some homes. Id. at 289. Appx. 328-29. In an order dated October 24, 2001, the No. 02-1148 Olden, et al. v. Lafarge Corp. 5 6 Olden, et al. v. Lafarge Corp. No. 02-1148

district court granted in part and denied in part Lafarge’s begin by addressing the issue of subject matter jurisdiction motion to dismiss and granted the plaintiffs’ motion to certify and will then address class certification. the class action. See Olden v. Lafarge, 203 F.R.D. 254, 258 (E.D. Mich. 2001). With regard to subject matter jurisdiction, 1. Subject Matter Jurisdiction the district court held that the supplemental jurisdiction statute confers subject matter jurisdiction over claims by The plaintiffs argue that the court’s jurisdiction is proper putative class members that do not entail $75,000 in under the diversity statute, which grants district courts controversy, but that form part of the same case or “original jurisdiction of all civil actions where the matter in controversy as the claims by other class members which controversy exceeds the sum or value of $75,000, exclusive exceed the jurisdictional amount. With respect to Lafarge’s of interest and costs” and is between diverse parties. 12(b)(6) motion, the court held that the plaintiffs failed to 28 U.S.C. § 1332(a). The issue raised in this case is whether state a claim for trespass under Michigan law but that the each individual class member in a diversity class action must plaintiffs stated valid state law claims for nuisance and meet the $75,000 amount in controversy requirement, or negligence. Id. at 264-67, 271. Finally, the district court also whether the plaintiffs may aggregate their damages. To say held that class certification was appropriate under Fed. R. that this question has been thoroughly examined is an Civ. P. 23(b)(2) and (3). Id. at 271. On appeal, Lafarge understatement. See Allapattah Servs., Inc. v. Exxon Corp., challenges only the district court’s decision with respect to 362 F.3d 739 (11th Cir. 2004) (Tjoflat, J., dissenting) subject matter jurisdiction and class certification. (compiling cases and articles). In fact, one of my law clerks was asked to answer this very question on a civil procedure II. exam in 1999. Unfortunately, however, he does not recall the answer, so we must review the issue de novo. See COB DISCUSSION Clearinghouse Corp. v. Aetna U.S. Healthcare, Inc., 362 F.3d 877, 880 (6th Cir. 2004) (quoting Joelson v. United States, 86 We have jurisdiction over this interlocutory appeal pursuant F.3d 1413, 1416 (6th Cir. 1996) (“We review a district court's to Federal Rule of Civil Procedure 23(f). According to Rule decision to grant a motion to dismiss for lack of subject 23(f), “[a] Court of appeals may in its discretion permit an matter jurisdiction de novo.”)). appeal from an order of a district court granting or denying class action certification . . . .” Fed. R. Civ. P. 23(f). The If only the parties had asked us this question twenty years question of subject matter jurisdiction is a prerequisite to ago (or any time between 1973-1990), our discussion would class certification and is therefore properly raised in this Rule be brief because the Supreme Court had made the answer 23(f) appeal. See In re Lorazepam & Clorazepate Antitrust plain. See Zahn v. Int’l Paper Co., 414 U.S. 291, 301 (1973). Litig., 289 F.3d 98, 108 (D.C. Cir. 2002) (noting that, unlike In Zahn, four named plaintiffs brought a class action on the question of antitrust standing, the question of behalf of approximately 200 lakefront property owners and constitutional standing would be properly raised in a Rule lessees, seeking compensation for damages to their property 23(f) appeal). Moreover, we have an independent obligation rights, allegedly caused by the defendant’s pollution of the to ensure that subject matter jurisdiction exists. See United lake. Id. at 291-92. Subject matter jurisdiction was asserted States v. Hays, 515 U.S. 737, 742 (1995); FW/PBS, Inc. v. based on diversity under 28 U.S.C. § 1332. Id. at 292. City of Dallas, 493 U.S. 215, 230-31 (1990). Therefore, we Although the named plaintiffs had claims exceeding the then applicable amount in controversy requirement, the district No. 02-1148 Olden, et al. v. Lafarge Corp. 7 8 Olden, et al. v. Lafarge Corp. No. 02-1148

court had found that not every absent member of the plaintiff supplemental jurisdiction shall include claims that class had a claim that satisfied the requisite amount. Id. The involve the joinder or intervention of additional parties. Supreme Court, consistent with earlier decisions, including Snyder v. Harris, 394 U.S. 332 (1969), held that the claims of (b) In any civil action of which the district courts have multiple parties, when separate and distinct, cannot be original jurisdiction founded solely on section 1332 of aggregated for purposes of meeting the jurisdictional amount. this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs The decision in Zahn was reaffirmed by the Supreme Court against persons made parties under Rule 14, 19, 20, or 24 in Finley v. United States, 490 U.S. 545, 556 (1989). In of the Federal Rules of Civil Procedure, or over claims Finley, the petitioner brought suit in federal court after her by persons proposed to be joined as plaintiffs under Rule husband was killed when his plane struck electric 19 of such rules, or seeking to intervene as plaintiffs transmission lines. Id. at 546. She asserted a claim under the under Rule 24 of such rules, when exercising Federal Tort Claim Act (FTCA) against the Federal Aviation supplemental jurisdiction over such claims would be Administration (FAA) and state law claims against San Diego inconsistent with the jurisdictional requirements of Gas and Electric Power Company arguing that it had section 1332. negligently placed and inadequately illuminated its power lines. Id. The Supreme Court found no “pendent party” (c) The district courts may decline to exercise jurisdiction over San Diego Gas. Id. at 556. It held that a supplemental jurisdiction over a claim under subsection grant of jurisdiction over claims involving particular parties (a) if-- does not confer jurisdiction over additional claims by or against different parties, even if all of the claims derive from (1) the claim raises a novel or complex issue of State a common nucleus of operative facts and consideration of the law, additional claims might promote judicial economy and efficiency. Id. (2) the claim substantially predominates over the claim or claims over which the district court has original In 1990, Congress enacted the Judicial Improvements Act jurisdiction, (the Act), a statute clarifying the supplemental jurisdiction of federal courts. See 28 U.S.C. § 1367. The statute provides, (3) the district court has dismissed all claims over which in relevant part, that: it has original jurisdiction, or

(a) Except as provided in subsections (b) and (c) or as (4) in exceptional circumstances, there are other expressly provided otherwise by Federal statute, in any compelling reasons for declining jurisdiction. civil action of which the district courts have original jurisdiction, the district courts shall have supplemental 28 U.S.C. § 1367. Shortly after the passage of the Act, a jurisdiction over all other claims that are so related to question arose as to whether Congress had overruled Zahn. claims in the action within such original jurisdiction that The Fifth Circuit was the first to answer this question. See In they form part of the same case or controversy under re Abbott Labs., 51 F.3d 524 (5th Cir. 1995). In short, the Article III of the United States Constitution. Such Fifth Circuit held that Congress had overruled Zahn, noting that “Section 1367(a) grants district courts supplemental No. 02-1148 Olden, et al. v. Lafarge Corp. 9 10 Olden, et al. v. Lafarge Corp. No. 02-1148

jurisdiction over related claims generally, and § 1367(b) unmoved by the legislative history. See In re Abbott Labs, 51 carves exceptions. Significantly, class actions [which are F.3d at 529. It concluded that “[o]mitting the class action governed by Rule 23] are not among the exceptions.” Id. at from the exception may have been a clerical error . . . [b]ut 527. Because Rule 23 was not included in the list of the statute is the sole repository of congressional intent where exceptions, Congress had seemingly granted supplemental the statute is clear and does not demand an absurd result.” Id. jurisdiction over the claims of absent class members who at 528-29. independently could not meet the required amount in controversy. The Seventh Circuit agreed with the Fifth, stating that “although, as Abbott Laboratories discussed, some legislative In so holding, the Fifth Circuit believed that Congress had history suggests that the responsible committees did not not subjectively intended to overrule Zahn. Id. at 528. In expect § 1367 to upset Zahn, the text is not limited in this fact, courts have almost universally noted that the legislative way. When text and legislative history disagree, the text history of § 1367 reveals that Congress did not intend to controls.” Stromberg Metal Works, Inc. v. Press Mech., Inc., overrule Zahn. See, e.g., Gibson v. Chrysler Corp., 261 F.3d 77 F.3d 928, 931 (7th Cir. 1996) (citation omitted). 927, 939 (9th Cir. 2001) (“We agree with the Third, Eighth Eventually, the Ninth, Fourth and most recently, the Eleventh and Tenth Circuits to this degree: the legislative history Circuit also concluded that Zahn had been overruled. See provides a substantial basis to believe that the omission of Allapattah, 333 F.3d at 1248; Gibson, 261 F.3d at 927; claims by Rule 23 plaintiffs from subsection (b) of § 1367, Rosmer v. Pfizer, Inc., 263 F.3d 110, 114 (4th Cir. 2001). and the resulting overruling of Zahn, was an oversight.”). The House Committee on the Judiciary, for instance, There has been anything but unanimity, however. The considered the bill as “noncontroversial” and “relatively Tenth Circuit, in Leonhardt v. Western Sugar Co., 160 F.3d modest,” which would seem inconsistent with a statute 631, 641 (10th Cir. 1998), found the Act to be ambiguous and intended to overrule a long-established precedent like Zahn. thus consulted the legislative history, ultimately holding that H. Rep. 101-734 (1990), reprinted in 1990 U.S.C.C.A.N. Zahn was still good law. The Court in Leonhardt observed 6860, 6861. The legislative history suggests that Congress that: only intended the statute to overrule Finley and thus “essentially restore the pre-Finley understandings of the Section 1367(a) specifically addresses “any civil action authorization for and limits on other forms of supplemental of which the district courts have original jurisdiction.” jurisdiction.” Id. at 6874. Perhaps most convincing is the (Emphasis added.) It then provides for supplemental fact that the legislative history specifically states that this jurisdiction over transactionally related claims. Section “section is not intended to affect the jurisdictional 1332 is what confers original jurisdiction over diversity requirements of 28 U.S.C. § 1332 in diversity-only class cases and it expressly requires that the “matter in actions, as those requirements were interpreted prior to controversy exceed[ ] the sum or value of $75,000.” Finley.” Id. at 6875. A footnote to this passage cites Zahn as While § 1332 does not expressly refer to class actions, a pre-Finley case unaffected by the Act. Id. at n.17. the Supreme Court has noted that periodic congressional amendment of the diversity statute to alter only the Nonetheless, because it found that the plain language of the amount in controversy evidences congressional statue was unambiguous and because no absurd result would agreement with the Court’s holding that “matter in follow from such an interpretation, the Fifth Circuit was controversy” does “not encompass[ ] the aggregation of No. 02-1148 Olden, et al. v. Lafarge Corp. 11 12 Olden, et al. v. Lafarge Corp. No. 02-1148

separate and distinct claims.” Snyder, 394 U.S. at 339. overruled.1 We note that the majority of courts have been Thus, Congress in § 1367(a) expressly excepted claims reaching this same conclusion for almost ten years now and brought under § 1332 and its well-understood definition Congress has yet to alter or amend § 1367 to correct them. of “matter in controversy.” For almost ten years, courts have acknowledged that the text of § 1367 unambiguously overrules Zahn, while its legislative Leonhardt, 160 F.3d at 640. The Eighth Circuit and the Third history shows a clear intent to preserve Zahn. Rules of Circuit adopted the reasoning of Leonhardt, finding that Zahn statutory construction teach that generally a court cannot had not been overruled. See Trimble v. Asarco, Inc., 232 F.3d consider the legislative history of a statute in interpreting its 946, 962 (8th Cir. 2000); Meritcare Inc. v. St. Paul Mercury meaning unless the statute is ambiguous. See In re Comshare Ins. Co., 166 F.3d 214, 222 (3d Cir. 1999); see also Ortega v. Star Kist Foods, Inc., No. 02-2530, 2004 WL 1205720 at *9 (1st Cir. June 2, 2004) (applying the reasoning of Leonhardt 1 W e acknowledge that there m ight be a way to de cide this case in the context of Rule 20 joinder). The Third Circuit went a without stepping into the Zahn morass. However, we can do so only by step further. It found that it could consult the legislative way of a different jurisdictional morass. The plaintiffs argue that history, even if the statute was not ambiguous, arguing that jurisdiction is proper b ecause we can determ ine the amou nt in controversy departure from the usual rule is appropriate in rare cases by exam ining the expected cost to the defendant of complying with the where the literal application of the statute would produce injunction which the plaintiffs seek. Unfo rtunately, there is a circuit split as to whether a court may determine the amou nt in controversy from the results “demonstrably at odds with the intentions of its perspective of either party (the “either viewpoint rule”) or whether a court drafters.” Meritcare Inc., 166 F.3d at 222 (citation omitted). may only co nsider the plaintiff’s viewpoint. See, e.g., In re: Ford Motor The Fourth and Ninth Circuits responded critically to the Co./Citibank, 264 F.3d 952, 958 (9th Cir. 2001) (applying the “either argument of Leonhardt and provided an explanation why viewpoint rule”); In re Brand Name Prescription Drugs Antitrust Litig., Leonhardt’s alternative interpretation could not stand. See 123 F.3d 599, 60 9 (7th Cir. 1997) (same); Oklaho ma R etail Grocers Ass’n v. Wal-Mart Sto res, Inc ., 605 F.2d 1155, 1159 (10th Cir. 1979) (same); Rosmer, 263 F.3d at 115-17; Gibson, 261 F.3d at 934-40; see Williams v. Kleppe, 539 F.2d 803 , 804 n.1 (1st Cir. 19 76) (same ); Tatum also Ortega, 2004 WL 1205720 at *19 (Torruella, J., v. Laird, 444 F.2d 947 , 951 (D.C . Cir. 19 71) (same ), rev’d on other dissenting). The Seventh Circuit also dismissed such grounds, 408 U.S. 1 (19 72); but see Ga rcia v. K och Oil Co. of Tex., Inc., alternative interpretations as “inventive.” Stromberg Metal 351 F.3d 636 , 640 n.4 (5th Cir. 2003 ) (app lying the “plaintiff’s Works, Inc., 77 F.3d at 932 (citations omitted). The Supreme viewp oint” rule); Ericsson GE Mo bile Com mu nications, In c. v. M otoro la Court attempted to resolve the issue; however, it split 4-4, and Communications & Elecs., Inc., 120 F.3d 216, 219-220 (11th Cir. 1997) (same); Massachusetts State Pharm. Ass’n v. Fed. Prescription Serv., Inc., its summary affirmance provided no insight. See Free v. 431 F.2d 1 30, 13 2 n.1 (8th C ir. 1970) (same). T his circuit has not yet Abbott Labs, 529 U.S. 333 (2000) (per curiam). chosen an approach and we d ecline to weigh in on two majo r circuit sp lits in the sam e day. N onetheless, we do no te that many cases have been Until now, this court has yet to speak on the question. suggested to indicate our adoption of, or preference for, one rule over the Today, we join with the majority of circuits which have other. See, e.g., Glenwood Light & Water Co. v. M utua l Ligh t, Hea t & Power Co ., 239 U.S. 121 (1915); Sherwood v. Microsoft Corp., 91 F. considered the question and hold that Zahn has been Supp. 2d 1196 (2000); Lodal, Inc. v. Ho me Ins. Co. of Ill., 156 F.3d 1230 (6th Cir. 199 8); Sellers v. O’Conne ll, 701 F.2d 57 5 (6th Cir. 1983); Goldsm ith v. Sutherland, 426 F.2d 139 5 (6th Cir. 1970 ); Pa. R. Co. v . City of Girard, 210 F .2d 43 7 (6th Cir. 19 54). In non e of these cases, however, did the court either co nsider this issue or express a subtle preference one w ay or the other. T herefore, we leave this interesting question for another day. No. 02-1148 Olden, et al. v. Lafarge Corp. 13 14 Olden, et al. v. Lafarge Corp. No. 02-1148

Inc. Sec. Litig., 183 F.3d 542, 549 (6th Cir. 1999) (“When Ortega, 2004 WL 1205720 at *16 (Torruella, J., dissenting) interpreting a statute, we must begin with its plain language, (noting that the Leonhardt interpretation “was never and may resort to a review of congressional intent or articulated by any Congressperson or their staff, by any judge legislative history only when the language of the statute is not or jurist, nor by any academics, or, most importantly by any clear.”) (citing Consumer Prod. Safety Comm’n v. GTE of the very drafters of the statute from the time the statute was Sylvania, Inc., 447 U.S. 102, 108 (1980)); Parker v. adopted in 1990, until such ‘intent’ was just espoused in Metropolitan Life Ins. Co., 121 F.3d 1006, 1014 n.10 (6th Cir. 1998”). Interestingly, this alternative interpretation is not 1997) (“We have not referred to legislative history in our consistent with the understanding of the drafters of § 1367, discussion of this issue because, where the statutory meaning who acknowledge that the failure to include Rule 23 was an is clear, we do not resort to legislative history.”). This tension oversight. See James E. Pfander, Supplemental Jurisdiction has created a strong incentive to interpret what we believe to and Section 1367: The Case for a Sympathetic Textualism, be unambiguous as ambiguous, in order to open the door to 148 U. Pa. L. Rev. 109, 144 n.132 (1999) (“[L]ast-second the legislative history. See, e.g., Crooks v. Harrelson, 282 concerns prompted the drafters to worry about their failure to U.S. 55, 60 (1930) (“Courts have sometimes exercised a high include a restriction for claims joined under Rule 23. They degree of ingenuity in the effort to find justification for caught the Rule 23 implications too late, however, to address wrenching from the words of a statute a meaning which [them] with a change to the statutory language and so relied literally they did not bear in order to escape consequences upon a curative reference in the legislative history instead.”); thought to be absurd or to entail great hardship.”). Thomas D. Rowe, Jr., et al., Compounding Confusion or Creating Confusion About Supplemental Jurisdiction? A For instance, Judge Tjoflat, in his recent dissent from the Reply to Professor Freer, 40 Emory L.J. 943, 960 n.90 (1991) denial of rehearing en banc in Allapattah, considered (one of the drafters of § 1367 notes that “[i]t would have been Leonhardt’s alternative interpretation of § 1367 and noted better had the statute dealt explicitly with this [Zahn] that it is “arguably an absurd interpretation of the statute problem, and the legislative history was an attempt to correct because it would permit courts to exercise supplemental the oversight”). Thus, it seems at least ironic that these courts jurisdiction only in cases where it didn’t need to . . .”. rely on an alternative interpretation of § 1367 which is Allapattah, 362 F.3d at 770 n.28 (Tjoflat, J., dissenting). He contradicted by its “legislative history,” in order to ultimately also considered another alternative interpretation of § 1367 justify treating the legislative history as dispositive. While, proposed in Snider v. Stimson Lumber Co., 914 F. Supp. 388, technically, this may be a proper application of the rules of 391 (E.D. Cal. 1996). Of the Snider interpretation, Judge statutory interpretation, one has to question its internal logic Tjoflat noted that he “[does] not agree entirely with [its] and whether there is ultimately any benefit from following reasoning.” Allapattah, 362 F.3d at 771. Nonetheless, based such an approach. on Leonhardt’s “arguably . . . absurd interpretation” and Snider’s interpretation with which Judge Tjoflat admits We believe that the Leonhardt interpretation fails, in part, disagreeing, he found § 1367 “sufficiently ambiguous as to for the reasons enunciated in Gibson and Rosmer. See warrant resort to the legislative history.” Id. Rosmer, 263 F.3d at 115-17; Gibson, 261 F.3d at 934-40; see also Ortega, 2004 WL 1205720 at *19 (Torruella, J., Courts such as the Tenth Circuit in Leonhardt have strained dissenting). These authorities go through a detailed account to develop an alternative interpretation which they argue and rebuttal of the Leonhardt interpretation and it is proves that the statute is at least ambiguous. See, e.g., unnecessary to repeat that discussion here. Moreover, No. 02-1148 Olden, et al. v. Lafarge Corp. 15 16 Olden, et al. v. Lafarge Corp. No. 02-1148

although it is no doubt clever, we simply do not believe the structure, it defies logic to suggest that the inclusive section Leonhardt interpretation to be a natural reading of this statute. of the statute, containing the sweeping grant of supplemental See United Food and Commercial Workers Union Local 751 jurisdiction, also contains a completely unspoken, yet v. Brown Group, Inc., 517 U.S. 544, 550 (1996) (“[T]he more critically important, exclusion. This is particularly true where natural reading of the statute’s text, which would give effect there is no doubt that the unspoken exclusion would fit to all of its provisions, always prevails over a mere suggestion naturally into the express list of exclusions in the second part. to disregard or ignore duly enacted law as legislative Congress was not using 28 U.S.C. § 1367 as an opportunity oversight.”); Business Guides, Inc. v. Chromatic to play “Hide The Ball,” “Where’s Waldo?” or “Find The Communications Enters., Inc., 498 U.S. 533, 547 (1991) Hidden Exclusion.” To argue that the alternative (“[T]his Court will not reject the natural reading of a rule or interpretation is viable enough to make this statute ambiguous statute in favor of a less plausible reading, even one that only begs the question of the meaning of the word seems to us to achieve a better result.”). Were there no “ambiguity.” Moskal v. United States, 498 U.S. 103, 108 relevant legislative history in this case, we do not believe that (1990) (discussing “the crucial question—almost invariably any court would have given serious consideration to the present—of how much ambiguousness constitutes . . . Leonhardt interpretation, because no one would doubt that the ambiguity”) (citations omitted). If we really wanted, it is statute means what it says. likely that we could find just about any statute to be ambiguous. Language, as compared to mathematics, is It is the structure of this statute which makes its meaning inherently imprecise. See Northeast Women’s Ctr., Inc. v. unambiguous. The first part of the statute (§ 1367(a)) McMonagle, 939 F.2d 57, 64 (3d Cir. 1991); Vitello v. United contains a sweeping grant of supplemental jurisdiction giving States, 425 F.2d 416, 425 (9th Cir. 1970) (Ely J., dissenting). the courts supplemental jurisdiction over all claims not This does not mean that we should abandon our traditional excluded by the second part (§ 1367(b)). The second part of role of interpreting statutes based on the language which the statute contains all of the exclusions.2 Given this Congress chose to include in the text itself.

2 Judge Tjoflat argues that “[t]here is nothing in the text of the statute, the cases cited by Judge Tjoflat as suggesting that expressio unius should however, which indicates that the [exclusions] mentioned in § 1367(b) not be applied to contradict legislative history, but instead that it sho uld were meant to be an exclusive list.” Allapattah, 362 F.3d at 772. He only be applied where its application is natural and the inference drawn, argues that to reach such a conclusion, one must implicitly apply the a fair one. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) cannon of statutory construction known as expressio u nius est exclusio (“As we have held repeatedly, the canon expressio u nius est exclusio alterius and that such application is inapp ropriate here, because it would alterius does not ap ply to ev ery statutory listing or group ing; it has force override clear C ongressional intent. Id. (citation omitted). W e disagree, only when the items expressed are members of an ‘associated group or however, with Judge T joflat’s first prem ise. W e believe that the language series,’ . . . .”); Neuberger v. Comm’r of I.R.S., 311 U .S. 83, 88 (1940), which begins § 13 67(a): “Except as provided in subsections (b) and (c) citing United States v. Barnes, 222 U.S. 513 (1912). We have no doubt . . . the district cou rts shall have supplem ental jurisdiction . . .” that Rule 23 fits in naturally with the other rules listed in § 1367(b). All demonstrates that Congress intended the exclusions mentioned in those the rules listed in § 13 67(b), like R ule 23 , involve different ways of subsections to be exclusive. Th erefore, we d o not believe th at we are getting additional claims before the court, such as joinder, impleader and applying expressio unius in this case so much as reading the plain intervention. W e believe that R ule 23 is similar enough to 14, 19, 20 and langua ge of the statute. 24 fo r purp oses o f this statute that, if Congress did no t want us to read it as excluding Rule 23 , it needed to make that intent more explicit in the Even if we were required to rely on expressio unius, we do not read statute. No. 02-1148 Olden, et al. v. Lafarge Corp. 17 18 Olden, et al. v. Lafarge Corp. No. 02-1148

Nor are we persuaded by the now fashionable argument that As noted supra, some courts have found a basis to consider because a number of brilliant minds have found this statute to and ultimately adopt the legislative history of § 1367, without be ambiguous, it is by definition so. See, e.g., Leonhardt, 160 the need of finding the statute ambiguous. See, e.g., F.3d at 640 (“[I]t is difficult to argue persuasively that the Meritcare Inc., 166 F.3d at 222. The Third Circuit, for statute is truly unambiguous when two circuit courts of appeal instance, has found that resorting to the legislative history was have reached the opposite conclusion from us, when a appropriate in answering the § 1367 question because this is majority of district courts are in agreement with us (although one of those “rare cases [in which] the literal application of a not all for the same reasons) and when commentators are statute will produce a result demonstrably at odds with the divided.”). The Supreme Court has regularly found statutes intentions of its drafters.” Id. (quoting United States v. to be unambiguous over the dissenting views of Justices who Sherman, 150 F.3d 306, 313 (3d Cir. 1998) (internal found the contrary. See, e.g., United States v. Labonte, 520 quotation marks removed, alterations in original); accord U.S. 751, 763 (1997) (Breyer, J. dissenting, joined by Justices United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 Stevens and Ginsburg) (“The majority finds . . . that the three (1989).3 Perhaps the primary rule of statutory interpretation, statutory words are unambiguous; that they are not however, is that a court will not look beyond the statutory text susceptible to the Commission’s interpretation; and that the if the text is unambiguous. See BedRoc Ltd., LLC v. United only possible interpretation is one that does not except States, 124 S.Ct. 1587, 1593 (2004). Of course, if the recidivist enhancement provisions. In my view, however, the statutory text and legislative history are consistent, this words ‘maximum term authorized’ are ambiguous.”); Dole v. primary rule is unnecessary because the result will be the United Steelworkers of Am., 494 U.S. 26 (1990) (White, J., same regardless of whether a court follows the rule or not. dissenting, joined by Chief Justice Rehnquist) (finding the Therefore, the primary rule only matters where there is a statute under consideration to be ambiguous); United States contradiction between the statutory text and the legislative v. Yermian, 468 U.S. 63 (1984) (Rehnquist, J., dissenting, history. The “exception” discussed in Meritcare has the joined by Brennan, Stevens and O’Connor) (same); Hoffman potential to turn the primary rule on its head because every v. Blaski, 363 U.S. 335 (1960) (Frankfurter, J., dissenting, time there is an actual conflict between the statutory language joined by Harlan and Brennan) (noting that there have been and the legislative history, the legislative history may prevail “severe differences” with respect to how twenty-seven district over the text of the statute. courts have interpreted the supposedly unambiguous statute). “[W]e cannot allow the fact that other circuits have called a statute ambiguous to negate this circuit’s duty to interpret the text of the enactment.” Rosmer, 263 F.3d at 118; see also 3 Moskal, 498 U.S. at 108 (noting that under the alternative Of course it is somewhat paradoxical that a court could find that the rule, “one court’s unduly narrow reading of a . . . statute literal application of an unambiguous statute wo uld produce a result demo nstrably at odds with the intent of its drafters given that the best would become binding on all other courts, including [the evidence of the inten t of the drafters is supposed to be the statute itself. Supreme Court]”); Allapattah Servs., Inc., 333 F.3d at 1254 See West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98-99 (1991) (“The mere existence of a split among the circuits as to the (“The best evidenc e of [C ongress’] purpose is the statutory text adopted proper interpretation of § 1367 does not relieve us of our by both Houses of Co ngress and su bmitted to the President. Where that obligation to interpret the statute independently.”). contains a phrase that is unambiguous . . . we do not perm it it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process.”) (citation omitted). No. 02-1148 Olden, et al. v. Lafarge Corp. 19 20 Olden, et al. v. Lafarge Corp. No. 02-1148

For this reason, we believe that this exception must be Because we find that 18 U.S.C. § 1367 achieves its construed narrowly and only applied where a literal intended purpose without any absurd result and because we application of unambiguous statutory language would have find that its statutory language is unambiguous, we hold today absurd results or “would thwart the obvious purpose of the that Zahn has been overruled. Therefore, the class may statute.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, aggregate damages and subject matter jurisdiction is proper. 571 (1982) (citations omitted); Bob Jones Univ. v. United Although we are confident about our conclusion on this States, 461 U.S. 574, 586 (1983) (“It is a well-established matter, we are comforted by the knowledge that if it turns out canon of statutory construction that a court should go beyond we are wrong, we will be in good company. We turn now to the literal language of a statute if reliance on that language the other issues surrounding class certification. would defeat the plain purpose of the statute . . . .”). This is not such a case. Here, the statute was intended to overrule 2. Class certification Finley, not to codify Zahn. No court disputes the fact that the statute fulfills its purpose. This is merely a case in which As discussed supra, the district court conditionally certified Congress may have painted with too broad a brush. We will a class action under Federal Rules of Civil Procedure 23(b)(2) not ignore the plain, unambiguous language of a statute where and (3) of “all owners of single family residences in the City it achieves its intended purpose without any absurd result but of Alpena whose persons or property was damaged by toxic simply has additional unintended consequences. See Brogan pollutants and contaminants which originated from the v. United States, 522 U.S. 398, 403 (1998) (“[I]t is not, and LaFarge cement manufacturing facility located in Alpena, cannot be, our practice to restrict the unqualified language of Michigan.” Lafarge, 203 F.R.D. at 271. The defendant a statute to the particular evil that Congress was trying to appeals this conditional grant of class certification. remedy—even assuming that it is possible to identify that evil from something other than the text of the statute itself.”); A class certification order is reviewed for an abuse of accord United States v. Wade, 266 F.3d 574, 581 (6th Cir. discretion. See Stout v. J.D. Byrider, 228 F.3d 709, 716 (6th 2001); see also Thompson v. Goetzmann, 337 F.3d 489, 493 Cir. 2000). “The district court’s decision certifying the class (5th Cir. 2003) (“[W]e reiterate that the courts are not in the is subject to a ‘very limited’ review and will be reversed ‘only business of amending legislation. If the plain language of the upon a strong showing that the district court’s decision was a MSP statute produces the legislatively unintended result clear abuse of discretion.’” Armstrong v. Davis, 275 F.3d 849, claimed by the government, the government’s complaint 867 (9th Cir. 2001) (citations omitted) (emphasis added). should be addressed to Congress, not to the courts, for such “Abuse of discretion is defined as ‘a definite and firm revision as Congress may deem warranted, if any.”); United conviction that the trial court committed a clear error of States v. Arnold, 126 F.3d 82, 86 (2d Cir. 1997) judgment.’” Coleman v. Gen. Motors Acceptance Corp., 296 (“Notwithstanding that such a result was unintended, the F.3d 443, 446 (6th Cir. 2002) (quoting Bowling v. Pfizer, Inc., Court declines any invitation to redraft the statute—that is a 102 F.3d 777, 780 (6th Cir. 1996)). task better left to the legislature.”); Leila G. Newhall Unitrust v. Comm’r of I.R.S., 105 F.3d 482, 487 (9th Cir. 1997) (“In In order to certify any Rule 23 class action: (1) the class any event, if the statute has unintended consequences, it is for must be so numerous that joinder of all members is Congress, not the courts, to take appropriate measures to avert impracticable, (2) there must be questions of law or fact them.”); In re: Appletree Mkts., Inc., 19 F.3d 969, 974-75 (5th common to the class, (3) the claims or defenses of the Cir. 1994). representative parties must be typical of the claims or No. 02-1148 Olden, et al. v. Lafarge Corp. 21 22 Olden, et al. v. Lafarge Corp. No. 02-1148

defenses of the class, and (4) the representative parties must an abuse of discretion because individualized money damages fairly and adequately protect the interests of the class. Fed. R. overwhelm the plaintiffs’ request for injunctive relief. Civ. P. 23(a). The defendant seemingly does not dispute on appeal that these prerequisites have adequately been A. Rule 23(b)(3) certification established. The thrust of the defendant’s argument seems to be that In this case, the district court certified a class under both common questions do not predominate. According to the Rule 23(b)(2) and Rule 23(b)(3). Each of these classes carries defendant, individual issues related to establishing causation its own prerequisites as well. A Rule 23(b)(2) class action is will overwhelm the case because toxins: (a) “originated from only appropriate where disparate sources within the one-square mile Lafarge facility and perhaps other industrial sources;” (b) were disbursed to the party opposing the class has acted or refused to act on properties in varying concentrations; (c) allegedly caused a grounds generally applicable to the class, thereby making variety of personal injuries; and (d) allegedly caused widely appropriate final injunctive relief or corresponding varying property damages. Lafarge Br. at 32-33 (emphasis declaratory relief with respect to the class as a whole. added). Fed. R. Civ. P. 23(b)(2). A Rule 23(b)(3) class action is With regard to the first issue, the fact that toxins may have appropriate where: originated from disparate sources within Lafarge’s facility is of little relevance since Lafarge’s liability presumably would [T]he court finds that the questions of law or fact not vary depending upon where within its facility toxins common to the members of the class predominate over originated. With regard to these “other industrial sources” any questions affecting only individual members, and (presumably the Abiti Price Plant and Fletcher Paper Co.), the that a class action is superior to other available methods defendant does not allege that the toxins from these sources for the fair and efficient adjudication of the controversy. are indistinguishable from the toxins from Lafarge’s plant.4 The matters pertinent to the findings include: (A) the Further, the defendant does not allege that these other sources interest of members of the class in individually produce significant amount of toxins relative to Lafarge, controlling the prosecution or defense of separate which admittedly is the nation’s largest cement plant. Appx. actions; (B) the extent and nature of any litigation at 787. Of course, if it is determined that the defendant does concerning the controversy already commenced by or not, on its own, emit enough pollutants to establish liability against members of the class; (C) the desirability or (either because the plaintiffs cannot establish negligence, undesirability of concentrating the litigation of the claims causation or “significant harm” in the case of the plaintiffs’ in the particular forum; (D) the difficulties likely to be nuisance claim), the defendant will prevail. Moreover, encountered in the management of a class action. damages can be reduced to reflect the proportion of the class’ injury not caused by the defendant. Fed. R. Civ. P. 23(b)(3). The defendant argues that the certification of a Rule 23(b)(3) class was an abuse of discretion because common questions do not predominate and 4 It appea rs that these “other sources” are defendants in another class other methods for adjudication would be superior, and action in front of the same district court judge. Therefore, if issues of similarly, that certification of a rule 23(b)(2) class action was potential confusion do arise, they sho uld be immediately apparent to the district co urt, mitigating any co ncern the defendant might have. No. 02-1148 Olden, et al. v. Lafarge Corp. 23 24 Olden, et al. v. Lafarge Corp. No. 02-1148

With regard to the remaining issues, they may suggest that As the district court properly noted, it can bifurcate the individual damage determinations might be necessary, but the issue of liability from the issue of damages, and if liability is plaintiffs have raised common allegations which would likely found, the issue of damages can be decided by a special allow the court to determine liability (including causation) for master or by another method.6 Fed. R. Civ. P. 23(c)(4)(A); the class as a whole. For instance, although some named see also Simon v. Philip Morris Inc., 200 F.R.D. 21, 30 plaintiffs admittedly describe a variety of minor personal (E.D.N.Y. 2001) (“By bifurcating issues like general liability medical issues (wheezing, “very bad breathing things,” or general causation and damages, a court can await the nausea, headaches, etc.) which might require individualized outcome of a prior liability trial before deciding how to damage determinations, the thrust of the plaintiffs’ personal provide relief to the individual class members.”). Therefore, injury complaint appears to be related to the general increased the aforementioned minor complaints can be dealt with in the risk of the class suffering medical problems in the future. See damages phase if necessary, and it is likely premature to Appx. 13-15, 18 (Cplt. at ¶¶ 22-28, 48). Whether the address these issues at this point. defendant’s negligence caused some increased health risk and even whether it tended to cause the class minor medical issues The defendant cites to a number of superficially similar can likely be determined for the entire class. Similarly, cases in which district courts have denied class certification. although some named plaintiffs present a number of minor examples of specific property damage (roof damage, dead rose bushes, damaged window pane, peeling stain on deck, 715,720 (M ich. 19 92) (“Th ere are cou ntless ways to interfere with the use rusting of automobile), these examples seem to be no more and enjoyment of land including . . . [the] threat of future injury that is a than illustrative of the common argument that the class’s present mena ce and interference with enjoyment.”). O nce (and if) nuisance liability has been established, the defendant can contest the properties are regularly covered in cement dust, causing degree of harm in the damages phase. Of course, if the nuisance claim minor property damage and a predictable reduction of becomes unmanageable to adjudicate as a class action, the district court property value and enjoyment of the property. Whether the can decertify the class with respect to that claim. See Fed. R. Civ. P. defendant’s negligence generally caused minor property 23(c)(1)(C) (“An order under Rule 23(c)(1) may be altered or amended damage and cement dust can likely be determined for the before final jud gment.”). entire class as well.5 6 The defendant is conc erned that bifurcation “m ay dep rive [it] of its Seve nth Amendment right to a jury trial.” Lafarge Br. at 44. Indeed it 5 might. See, e.g., In re Rh one -Po ulenc Ro rer, Inc ., 51 F.3d 1293, 1303 The Defendant argues that the plaintiffs’ nuisance cause of action (7th Cir. 1995) (noting that the Seventh Amendment requires that, when requires individualized proof because one must show “significant harm” a court bifurcates a case, it must “d ivide issues between separate trials in resulting in an interference with the use of and enjoyment of pro perty. such a way that the same issue is [not] reexamined by different juries.”). However, if the class can show that their properties were freque ntly On the other hand, if done properly, bifurcation will not raise any covered by cement dust, this would likely be enough to establish constitutional issues. W e are confident that the defendant will “significant harm.” See, e.g., Adam s v. Clev eland-Cliffs Iron C o., 237 app ropriately raise any concerns with the district court, if the court Mich. App x. 51, 70, 6 02 N .W .2d 2 15, 2 23 (Mich. Ct. App. 1999) (“If the eventually proposes to bifurcate the case in such a mann er as to quantity and character of the dust are such as to disturb the ambiance in potentially jeop ardize any of its rights. The defendant seems particularly ways that interfere substantially with the plaintiff’s use and enjoyment of concerned about the Seventh Amendment implications of using a special the land, then recovery in nuisance is possible.”). Further, if the class can master to determine individual damages. Lafarge Br. at 44. We suspect show that they are at an increased risk of significant future medical that the plaintiffs will be more than willing to have a jury make that prob lems, this too would likely constitute “significant harm.” See, e.g., determination if that is truly the de fendant’s preference , however, the Adkins v. Thomas Solvent Co., 440 Mich. 293, 303-304, 487 N.W.2d parties can b ridge that gap when it appe ars. No. 02-1148 Olden, et al. v. Lafarge Corp. 25 26 Olden, et al. v. Lafarge Corp. No. 02-1148

We believe these cases are distinguishable, however. The Further, the court in Reilly declined to certify the class defendant, for instance, relies heavily on Ramik v. Darling because it found that individual issues predominated. In large International Incorporated, No. 98-40276 (E.D. Mich. 1999) part, this was because the plaintiffs’ major complaint was lead (attached to Lafarge Br. at Appx. 2). However, in Ramik, it poisoning. The court noted the existence of evidence in the appears the class’s primary complaint was noxious odors, record suggesting that the plaintiffs may have been exposed which is quite subjective. Ramik, No, 98-40276 at 13 (“With to lead, not just through the defendant’s plant or other respect to damages, defendant points out that the majority of facilities, but through lead based paint and lead-based money damages claimed by plaintiffs relates to subjective gasoline, both of which were in common use during the complaints . . .”). The court in Ramik noted that whether the relevant time period. See id. at 604-06. Thus, in order to plaintiff will be able to establish liability “will require determine causation in Reilly, the fact finder would substantial individual proofs related to the character of the presumably have had to consider what kind of paint was in odors at each individual residence.” Id. at 15. Unlike Ramik, each class member’s home and the condition of that paint in the present case, the plaintiffs’ complaints are more throughout the relevant period, as well as his or her driving objective and experts will likely be able to estimate how and gasoline usage habits. In the present case, it is possible much cement dust has fallen over each residence and the that other facilities caused some of the pollution, but this does potential health effects associated with such quantity of dust. not suggest the same level of individual determination required in Reilly. We find the other cases cited by the Similarly, we find Reilly v. Gould Incorporated, 965 F. defendant to be distinguishable for similar reasons. Supp. 588 (M.D. Pa. 1997) to be distinguishable. In that case, Therefore, we believe that the district court did not abuse its the defendant’s plant had been closed for more than ten years discretion by conditionally certifying a Rule 23(b)(3) class. before the plaintiffs brought suit. Id. at 593-94. Therefore, the plaintiffs were not seeking any common injunctive relief B. Rule 23(b)(2) certification (other than a constructive trust for medical monitoring which, at best, is quasi-equitable in nature).7 Id. In contrast, in the The defendant argues that Rule 23(b)(2) certification is present case, the defendant’s plant is still operating and the inappropriate because individualized money damages plaintiffs are asking the court to enter a permanent injunction overwhelm the plaintiffs’ request for injunctive relief. See enjoining the defendant from polluting—a conflict Lafarge Br. at 45. As we have suggested, we believe that the particularly suitable for class action adjudication. defendant is overestimating the potential difficulty in establishing a formula for money damages for the class and is underestimating the importance of the injunctive relief. In any case, we do not believe that the defendant’s argument makes much sense given that the district court has granted 7 certification under both 23(b)(2) and 23(b)(3). A number of courts have treated requests for medical monitoring as a form of damage relief. See, e.g., Zin ser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 200 1); Dham er v. Bristol-Myers Squibb Co., 183 Disputes over whether [an] action is primarily for F.R.D. 520 (N.D. Ill. 199 8); Cook v. Ro ckwell Int’l Corp ., 181 F.R.D. 473 injunctive . . . relief rather than a monetary award neither (D.C. Colo. 1998); O’Conner v. Boeing N. Am., Inc., 180 F.R.D. 359 promote the disposition of the case on the merits nor (C.D. Cal. 1997 ); Arch v. A m. Tobacco Co., 175 F.R.D. 469 (E.D. Pa. represent a useful expenditure of energy. Therefore, they 1997); Ha rding v. Tamb rands, Inc., 165 F.R.D . 623 (D. K an. 1996); should be avoided. If the Rule 23(a) prerequisites have Thomas v. FAG Bearin gs Co rp., 846 F. Sup p. 14 00 (W .D. M o. 19 94). No. 02-1148 Olden, et al. v. Lafarge Corp. 27 28 Olden, et al. v. Lafarge Corp. No. 02-1148

been met and injunctive or declaratory relief has been 267.8 The defendant argues that this case is similar because requested, the action usually should be allowed to emissions from its plant are regulated by the Clean Air Act, proceed. Those aspects of the case not falling within 42 U.S.C. § 7401, and Michigan’s Natural Resources and Rule 23(b)(2) should be treated as incidental. Indeed, Environmental Protection Act, Mich. Comp. Laws § 324.101. quite commonly they will fall within Rule 23(b)(1) or Id. However, unlike the NTMVSA, as interpreted by Walsh, Rule 23(b)(3) and may be heard on a class basis under both of the Acts here expressly contemplate private one of those subdivisions. Even when this is not the enforcement suits and the type of injunctive relief sought by case, the action should not be dismissed. the plaintiffs. See 42 U.S.C. § 7604(d) (providing for citizen suits and injunctive relief); Mich. Comp. Laws. § 324.1707 7A Charles Alan Wright, Arthur R. Miller, et al., Federal (same).9 Practice and Procedure, 2d. § 1775 (emphasis added); see also 5 Moore’s Federal Practice, § 23.41[6][d] (Matthew Finally, the defendant is concerned that we might become Bender 3d. ed.). Therefore, Coleman, upon which the excessively entangled with other sources of law because of a defendant relies, is distinguishable because in Coleman the second amended consent judgement it entered into with the district court certified the class only under 23(b)(2), not also State of Michigan, on September 28, 2000. Appx. at 435. under 23(b)(3). See 296 F.3d at 447. Moreover, injunctive We do not share the defendant’s concern. See, e.g., United relief was not as critical in Coleman because the plaintiffs States v. Phillip Morris USA, No. CIV.A.99-2496(GK), 2004 there, who claimed they were subject to higher finance WL 1045766 (D.D.C. May 6, 2004) (finding the existence of charges because they were black, were not currently being a master settlement agreement did not preclude action). The irreparably harmed in the same way the plaintiffs allege here. plaintiffs in this case were not parties to the consent Id. judgment, and the agreement itself states that it “does not limit or affect the rights of Lafarge or the State of Michigan Finally, the defendant argues that the requested injunctive against third parties.” Appx. at 457. Nothing in the relief would cause the court to become unnecessarily and agreement purports to limit the rights of third parties against improperly entangled with the ongoing administrative Lafarge either. To the contrary, the agreement states that it regulation of the plant. Lafarge Br. at 48. The defendant “in no way affects Lafarge’s responsibility to comply with relies on Walsh v. Ford Motor Co., 130 F.R.D. 260, 266-67 any other applicable state, federal or local laws or regulations (D.D.C. 1990), and several other cases in which district courts declined to certify Rule 23(b)(2) class actions where the plaintiffs were seeking to force automobile recalls. The court 8 in Walsh, declined to certify the class, in part, because the It appears that, at least at the time Walsh was decided, no court had ever ordered a recall of an allegedly defective vehicle. See Chin v. court wanted to “avoid entanglement with a regulatory Chrysler Corp., 182 F.R.D. 448, 464 n.6 (D.N.J. 1998), citing In re Gen. scheme [the National Traffic and Motor Vehicle Safety Act Motors Fuel Tank Litig., 55 F .3d 7 68, 8 11 n. 30 (3 d Cir. 199 5). of 1966 (NTMVSA)] designed and intended to empower principally the Department of Transportation, rather than the 9 Walsh is further distinguisha ble for the reasons d iscussed in courts, to order and oversee motor vehicle recalls.” Id. at Rodriguez v. Carlson, 166 F.R.D . 465, 476 (E.D . Wash. 199 6) (noting that in Walsh, the court was “faced with the ad ministratio n of a nationwide class involving millions” and that the types of violations alleged by the plaintiffs in that case could be fully rem edied solely through the award of monetary damages). No. 02-1148 Olden, et al. v. Lafarge Corp. 29 30 Olden, et al. v. Lafarge Corp. No. 02-1148

[sic], or with any order of this or any other court, including matter jurisdiction to be proper and AFFIRM the district without limitation, any amendments [sic] to Part 55 of Act court’s grant of class certification. 451, the federal Clean Air Act (“CAA”), 42 USC 7401, et seq, or their rules and regulations, or to the State Implementation Plan.” Id. at 458. Even if the agreement had purported to limit the rights of third parties, it is unlikely that such a limitation would be upheld, at least absent an allegation or argument that the state was acting in its role as parens patriae. See Lawyer v. Dep’t. of Justice, 521 U.S. 567, 579 (1997) (“[A] settlement agreement subject to court approval in a nonclass action may not impose duties or obligations on an unconsenting party or ‘dispose’ of his claims.”) (citation omitted); Firefighters v. City of Cleveland, 478 U.S. 501, 529 (1986) (“[A] court may not enter a consent decree that imposes obligations on a party that did not consent to the decree.”) (citations omitted). Of course, if the defendant believed that the class’s suit was estopped by the consent judgment, it could have raised this argument in its motion to dismiss or in its answer, as an affirmative defense. See Blakely v. United States, 276 F.3d 853, 866-68 (6th Cir. 2002). The defendant chose not to do so, however. See Appx. at 30-31, 332-68.10 Therefore, we need not discuss the issue further. III. CONCLUSION In sum, we find that the district court did not abuse its discretion in certifying this class and we are confident that the district court will take appropriate measures if, at any time, it appears that the class threatens to become unmanageable. Therefore, for the reasons discussed supra, we find subject

10 The defendant did argue that the existence of the consent judgment suggested that the district court should abstain from hearing the case under the doctrine of Younger. App x. at 36 0-63 . The district co urt, however, declined to abstain and the issue has not been raised on ap peal.