On Appeal from the District Court of the Virgin Islands District Court No. 1-12-cv-00011 District Judge: The Honorable Harvey Bartle, III
The opinion of the court was delivered by: Smith, Circuit Judge.
Before: AMBRO, SMITH, and CHAGARES, Circuit Judges
The St. Croix Renaissance Group, L.L.L.P. (SCRG) sought leave under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1453(c)(1), to appeal an order of the District Court of the Virgin Islands remanding a civil action to the Superior Court of the Virgin Islands.
We granted SCRG's request. Because we conclude that the civil action here is not a removable "mass action" under CAFA, we will affirm the order of the District Court.
In early 2012, "[m]ore than 500 individual plaintiffs" sued SCRG in the Superior Court of the Virgin Islands. On February 2, 2012, SCRG removed the civil action to the District Court of the Virgin Islands. SCRG, which was the only named defendant in the action, asserted that the civil action was a "mass action" under CAFA, making it removable under 28 U.S.C. §§ 1332(d)(11)(A) and 1453(b).*fn1 Thereafter, 459 plaintiffs filed a first amended complaint (referred to for simplicity's sake as "the complaint").*fn2 Most of the 459 plaintiffs were citizens of the United States Virgin Islands. Several plaintiffs, however, were citizens of various states.
SCRG purchased a former alumina refinery on the south shore of St. Croix in 2002. The plaintiffs alleged that "[f]or about thirty years, an alumina refinery located near thousands of homes on the south shore of the island of St. Croix was owned and/or operated by a number of entities." According to the complaint, the "facility refined a red ore called bauxite into alumina, creating enormous mounds of the by-product, bauxite residue, red mud, or red dust."
From the beginning of the alumina refinery's operations, hazardous materials, including chlorine, fluoride, TDS, aluminum, arsenic, molybdenum, selenium, as well as coal dust and other particulates were buried in the red mud, and the red mud was stored outdoors in open piles that at times were as high as approximately 120 feet and covered up to 190 acres of land.
In addition to these hazardous materials, friable asbestos was present. All of the substances described were dispersed by wind and disseminated as a result of erosion.
According to the plaintiffs, SCRG purchased the refinery site knowing that the loose bauxite and piles of red mud "had the propensity for particulate dispersion when exposed to wind" that would be "inhaled by [p]laintiffs, deposited onto [p]laintiffs' persons, and real and personal properties, and deposited into the cisterns that are the primary source of potable water for many [p]laintiffs." Yet SCRG "did nothing to abate it, and instead, allowed the seriesof the continuous transactions to occur like an ongoing chemical spill." SCRG "failed to take proper measures to control those emissions[.]" With regard to the friable asbestos, the plaintiffs alleged that SCRG discovered its presence, concealed its existence, and did nothing to remove it from the premises. The plaintiffs averred that the improper maintenance of the facility, inadequate storage and containment of the various hazardous substances, as well as failure to remediate the premises, caused them to sustain physical injuries, mental anguish, pain and suffering, medical expenses, damage to their property and possessions, loss of income and the capacity to earn income, and loss of the enjoyment of life.
The plaintiffs asserted six causes of action against SCRG:
* Count I: Abnormally Dangerous ...