The opinion of the court was delivered by: David Stewart Cercone United States District Judge
On June 5, 2009, Plaintiffs filed a Complaint in the Court of Common Pleas of Allegheny County, Pennsylvania, captioned Cameron B. Auxer, et al. v. Alcoa, Inc., Case No. GD-09-010359 (the "Auxer Complaint" or "Auxer"), seeking recovery for injuries allegedly caused by exposure to emissions from the Wagerup alumina refinery owned and operated by Alcoa of Australia Limited ("AAL"), an Australian corporation, in Western Australia. At the time of the alleged exposure and resulting injuries, the Plaintiffs of the Auxer Complaint resided in Western Australia. At the time of the filing of this lawsuit, nine (9) of the ten (10) Plaintiffs in this action were residents of Australia. On July 31, 2009, Alcoa removed the Auxer Complaint to this Court pursuant to 28 U.S.C. § 1441(b). Alcoa then filed a Motion to Dismiss on Grounds of Forum Non Conveniens and a Motion to Dismiss for Failure to State a Claim. Plaintiffs filed a Motion to Remand to State Court.
On September 28, 2009, the following Complaints were filed in the Court of Common Pleas of Allegheny County, Pennsylvania: Angelina Ferraro Angi, et al. v. Alcoa, Inc., Case No. GD-09-010494 ("Angi"); Terrence Alpin, et al. v. Alcoa, Inc., Case No. GD-09-010373 ("Alpin"); Frank Bellairs, et al. v. Alcoa, Inc., Case No. GD-09-010424 ("Bellairs"); and Clive Barradeen, et al. v. Alcoa, Inc., Case No. GD-09-010375 ("Barradeen")(collectively with Auxer, the "Complaints"). Similar to the Auxer Complaint, Plaintiffs in these actions are seeking recovery for injuries allegedly caused by exposure to emissions from alumina refineries owned and operated by AAL in Australia. On October 26, 2009, Alcoa removed the Angi, Alpin, Bellairs and Barradeen actions to this Court.
On November 19, 2009, this Court issued an Order consolidating the Auxer, Angi, Alpin, Bellairs and Barradeen actions (the "Consolidated Actions"). Alcoa then filed a Motion to Dismiss on Grounds of Forum Non Conveniens and a Motion to Dismiss for Failure to State a Claim in each of the Angi, Alpin, Bellairs and Barradeen actions, and Plaintiffs filed their Motions to Remand. All parties have responded to the above motions, and the motions are now before the Court.
II. STATEMENT OF THE CASE
Plaintiffs' actions arise out of the operation of three (3) alumina refineries in Western Australia, the Wagerup refinery, the Kwinana refinery and the Pinjarra refinery. Plaintiffs allege that Alcoa has a sixty percent (60%) ownership in AAL, the Australian corporation that owns and operates the refineries, and that Alcoa "controlled, directed and was ultimately responsible for" AAL's operation of the refineries. Auxer Complaint ¶¶ 11, 17, 23; Angi Complaint ¶¶ 199, 200; Alpin Complaint ¶¶ 32, 33; Bellairs Complaint ¶¶ 31, 32; Barradeen Complaint ¶¶ 19, 20. All of the Plaintiffs alleging injury, except Cameron Auxer, are residents of Australia. Auxer Complaint ¶¶ 1-10; Angi Complaint ¶¶ 1-187; Alpin Complaint ¶¶ 1-21; Bellairs Complaint ¶¶ 1-19; Barradeen Complaint ¶¶ 1-7.
The Wagerup refinery is located eighty (80) miles south of Perth in Western Australia and began operations in or about 1984. Auxer Complaint ¶¶ 23, 45; Angi Complaint ¶ 576; Bellairs Complaint ¶ 88. The Pinjarra refinery began operations in 1972 (Barradeen Complaint ¶ 19), and the Kwinana refinery began operations in 1963. Alpin Complaint ¶ 76. At the refineries, alumina is produced by initially grinding the bauxite into small particles, which is then mixed under pressure with a hot caustic soda solution to dissolve the aluminum oxide. Auxer Complaint ¶ 47; Angi Complaint ¶577; Alpin Complaint ¶ 77; Bellairs Complaint ¶ 89; Barradeen Complaint ¶ 36. The refining process which includes liquor burning, calcination and operation of oxalate kilns, cause harmful pollutants to be released into the environment. Auxer Complaint ¶ 51; Angi Complaint ¶¶578, 583; Alpin Complaint ¶¶ 80, 81; Bellairs Complaint ¶¶ 90, 95; Barradeen Complaint ¶ 37, 39. At the conclusion of the refining process, the alumina is retained for making aluminum and the bauxite residue is deposited and stored in Residue Disposal Areas ("RDA"), which are open drying areas located several hundred yards from the refineries. Auxer Complaint ¶ 48; Angi Complaint ¶¶577-579; Alpin Complaint ¶¶ 77-80; Bellairs Complaint ¶¶ 89-91; Barradeen Complaint ¶ 36-38.
Plaintiffs allege that the location of Wagerup refinery negatively affects the dispersal of the pollutants emanating from the refinery. Auxer Complaint ¶ 49. Due to the climatological and atmospheric conditions, some of which relate to the Darling Escarpment, an inversion layer is produced and the harmful pollutants from the Wagerup refinery become trapped at or near ground level for extended periods of time. Auxer Complaint ¶¶ 49, 50. This results in high and unsafe ground level concentrations of toxic compounds on the communities near the Wagerup refinery. Auxer Complaint ¶¶ 49.
Plaintiffs in these actions allege that they live or lived in the vicinity of the alumina refineries, or that they worked in one or more of the refineries, and that they sustained an injury caused by emissions from the refineries. The Plaintiffs seek recovery from Alcoa on theories of negligence, strict liability and reckless conduct. See generally the Complaints.
Plaintiffs implore the Court to remand the Consolidated Actions to the state court arguing that this Court does not have subject matter jurisdiction. Alcoa asks this Court, instead, to follow the instructions of the United States Supreme Court in Sinochem International Co. Ltd. v. Malaysia International Shipping Corp., 549 U.S. 422 (2007), in which the Court explained: "[a] district court may dispose of an action by a forum non conveniens dismissal, by-passing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant." Id. at 432.
In the alternative, Alcoa argues that this Court has subject matter jurisdiction of the Consolidated Actions pursuant to the "mass action" provisions of the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. §§ 1332(d)(2), 1332(d)(11) and 1453*fn1 . Alcoa argues that the Angi action, which involves 187 plaintiffs, satisfies the unambiguous requirements of a mass action under CAFA, therefore this Court has jurisdiction over the state law claims asserted in the Angi action*fn2 . Contending that Plaintiffs have artificially structured the Consolidated Actions to avoid federal jurisdiction, Alcoa further argues that because Angi satisfies the requirements of CAFA, this Court must retain jurisdiction over the Auxer, Alpin, Bellairs and Barradeen actions.
Application of the mass action provisions of CAFA to the facts presented by the Consolidated Actions is a question of first impression in the Third Circuit. Moreover, there is a split among the circuits regarding the proper exercise of federal jurisdiction under CAFA when plaintiffs have allegedly structured their actions in order to avoid subject matter jurisdiction in the federal courts. See Freeman v. Blue Ridge Paper Prods., 551 F.3d 405, 408 (6th Cir. 2008)(finding no colorable basis for dividing an action for nuisance in the form of water pollution from a paper mill into five separate lawsuits covering distinct six-month time periods other than to avoid the clear purposes of CAFA); Proffitt v. Abbott Labs, 2008 U.S. Dist. LEXIS 72467 at * 5-*6(E.D. Tenn. Sept. 23, 2008)(finding no reason for plaintiffs bringing eleven class actions, each alleging an anti-trust conspiracy involving one defendant and one drug, other than evading "the Congressional intent and purpose of the CAFA."); see also Tanoh v. Dow Chem. Co., 561 F.3d 945, 951 (9th Cir. 2009)(finding CAFA did not apply to seven separate state court actions alleging injuries from exposure to chemicals while working on banana and pineapple plantations in villages on the Ivory Coast.).
Generally, courts are required to determine questions of jurisdiction before reaching the merits of a case. Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998). A forum non conveniens dismissal "den[ies] audience to a case on the merits," Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999); it is a determination that the merits should be adjudicated elsewhere. See American Dredging Co. v. Miller, 510 U.S. 443, 454 (U.S. 1994); Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 148 (1988). Further, the Court has stated that a federal court has some discretion "to choose among threshold grounds for denying audience to a case on the merits." Ruhrgas AG v. Marathon Oil Co., 526 U.S. at 585. The Third Circuit recognized that forum non conveniens "is a non-merits ground for dismissal." See Malay. Int'l Shipping Corp. v. Sinochem Int'l Co., 436 F.3d 349, 359 (3d Cir. 2006).
Moreover, the Supreme Court has consistently held that there is no mandatory "sequencing of jurisdictional issues." Ruhrgas AG v. Marathon Oil Co., 526 U.S. at 584*fn3 . For example, The Supreme Court has approved of addressing venue before personal jurisdiction. See Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979). In other instances, federal courts have disposed of cases before reaching the merits, and therefore, without first determining the existence of subject-matter jurisdiction, including: declining to adjudicate state-law claims, see Moor v. County of Alameda, 411 U.S. 693, 715-716; abstaining under the Younger doctrine, see Ellis v. Dyson, 421 U.S. 426, 433-434 (1975); dismissing lawsuits under the doctrine of Totten v. United States, 92 U.S. 105 (1875) (prohibiting suits against the government based upon covert espionage agreements), see Tenet v. Doe, 544 U.S. 1, 7 n.4 (2005); and as above-mentioned, dismissing or transferring a case based on forum non conveniens grounds without first addressing personal jurisdiction. See Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. at 432.
The relative ease of determining forum non conveniens before addressing the novel, and more difficult, issues of subject-matter jurisdiction in this instance is an issue of judicial economy. Because subject-matter jurisdiction involves an arduous inquiry, "and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course." Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. at 436. Therefore, the Court will address Alcoa's motion to dismiss on grounds of forum non conveniens, and for the ...