United States District Court, N.D. Alabama, Middle Division
THE WATERS WORKS AND SEWER BOARD OF THE TOWN OF CENTRE, Plaintiff,
3M COMPANY, et al. Defendants.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
Waters Works and Sewer Board of the Town of Centre brought
suit against various manufacturers, suppliers, distributors,
and users of chemicals in Cherokee County Circuit Court,
alleging the Defendants had contaminated the town's water
source with perfluorinated chemicals. (Doc. 1-2 at 3). The
Defendants represent the majority of the carpet industry in
North America and are concentrated around Dalton, Georgia.
However, Defendant Industrial Chemicals is an Alabama
corporation based in Birmingham. Defendant Shaw Enterprises
removed the case to federal court, alleging that Centre had
fraudulently joined Industrial Chemicals to defeat diversity
jurisdiction. Centre moved to remand the case, arguing that
Industrial Chemicals was properly joined and, therefore,
complete diversity did not exist, preventing the court from
having subject matter jurisdiction. (Doc. 112).
lodged the same fraudulent joinder argument in the nearly
identical case of The Water Works and Sewer Board of
Gadsden v. 3M Co., No. 4:16-cv-1755-KOB, 2017 WL 4236371
(N.D. Ala. Sept. 25, 2017), which this court remanded to
state court on September 25, 2017. That case involved the
same issues, allegations, and defendants as this case.
Shaw's argument was also the same-that the Alabama
plaintiff fraudulently joined Industrial Chemicals, an
Alabama corporation, to destroy complete diversity. This
court again rejects Shaw's argument for fraudulent
joinder for the same reasons it rejected it in the Gadsden
case. Because the court agrees that Industrial Chemicals was
not fraudulently joined, it will GRANT Centre's motion
and REMAND this case to state court.
Allegations in the Complaint
the scope of this action, the allegations in the complaint
are simple. Plaintiff Water Works and Sewer Board of the Town
of Centre provides drinking water directly to its own
residential and commercial customers in Cherokee County,
Alabama. Centre draws its source water from the Coosa River
at a point downstream from Dalton, Georgia, and has recently
learned that its water supply is contaminated with
perfluorinated chemicals (PFCs), including perfluorooctanoic
acid (PFOA) and perfluorooctane sulfonate
has named manufacturers, suppliers, and users of PFCs as
Defendants it believes are jointly liable to it for
negligence, nuisance, trespass, and wantonness for causing
the presence of the chemicals in Centre's water source.
Because of the contamination, Centre says it has lost profits
as customers have switched to other sources of water and
faces future expenses associated with installing and
operating a water filtration system because its current
system cannot remove or reduce PFC levels in the water to the
level recommended by the EPA.
Evidence Provided to the Court
Evidence Submitted by the Plaintiff
submitted evidence about industrial use of PFCs, including a
white paper from the Association of State and Territorial
Solid Waste Management Officials (ASTSWNO) Federal Facilities
Research Center's Remediation and Reuse Focus group on
PFCs. See (Doc. 112-1). The paper notes that PFOA
and PFOS are the two most prevalent types of PFCs; companies
have used PFCs to make fluropolymer coatings and products
that are oil and water repellent, including clothing,
upholstery, paper, carpets, and non-stick cookware.
Additionally, the National Institute of Environmental Health
says that PFCs can be used to ensure that products, such as
carpet and sofas, resist stains. See (Doc. 112-2 at
are also used in other compounds. An OECD/UNEP Global PFC Group
Synthesis Paper submitted by Centre also mentions that PFCs
are sometimes components of foaming agents and hydraulic
fluids. See (Doc. 112-5). According to research
cited by the ASTSWNO paper, the highest concentrations of
PFCs are found in areas with direct discharge from industries
that utilize PFCs.
also submitted an Environmental Protection Agency question
and answer document on PFC contamination in Dalton, Georgia.
The EPA believes that PFC contamination in Dalton results
from industrial discharge by carpet manufacturers.
See (Doc. 112-5 at 5).
Centre has also submitted evidence regarding Industrial
Chemicals' business and its potential relationship to
PFCs. Industrial Chemicals, an Alabama corporation, maintains
a distribution site in Dalton, and its advertising materials
say it sells “textile chemicals, ”
“surfactants, ” and “polymers, ” as
well as foaming agents, hydraulic fluids, and metal plating
and finishing chemicals. (Doc. 112-4 at 5-11). Industrial
Chemicals is also a distributor for Omni-Chem136, which
supplies over 5, 000 different chemical products.
also notes that distribution is not the sole focus of
Industrial Chemicals' business. According to the
company's website, it also transports and disposes of
waste materials. See (Doc. 167-2).
Submitted by the Defendants
notice of removal and also in opposition to Centre's
motion to remand, the Defendants provided numerous affidavits
to establish that Centre fraudulently joined Industrial
Chemicals. The affidavits fall into three general categories:
Industrial Chemicals' officers; expert testimony; and the
other Defendants stating they did not buy chemicals
containing PFCs from Industrial Chemicals.
Defendants have provided two affidavits from Chip Welch, the
CEO/President of Industrial Chemicals. In his first
affidavit, Mr. Welch says that Industrial Chemicals has never
used PFCs during a manufacturing process or marketed or sold
chemicals designed to create water or stain resistance.
Industrial Chemicals had records of sales dating from 2005.
Mr. Welch reviewed sales made to the other Defendants since