Defendants contend that, because the complaint a number of years, it is precluded from being classified as an or “event occurrence.” What however, is that Defendants fail to disprove, through the passage of time the release of PCB’s is in essence a continuous event. Though they hardly do so, Defendants could various aspects of the pollution problem that perhaps discuss might have occurred such as whether an individual company or – person failed to notice or attend to a particular situation, failed to deal with new information or some discovery about the leakage, or did not implement a method for dealing with the problem and – use these to argue that the complaint is comprised of more than one event or occurrence. (Emphasis added.) As was true in in the instant case there is simply no proof whatsoever Allen, as to whether this is a single or multiple events. 2. The District Court erred: (1) as a matter of law in proceeding to find jurisdictional facts on remand where plaintiffs have the burden of proof yet failed to submit any facts in the record to support the court’s finding; and, alternatively (2) was such finding clearly erroneous. The Court noted that plaintiffs have the burden to prove the exception to a preponderance -- for example, it is more likely than not” that the “that failure to remediate newly discovered asbestos was part of a “factually” event with releases of red mud from a permitted containment area. “continuous” But what does this really mean? An to CAFA jurisdiction may be “exception likened to defense’ to jurisdiction. The. . .party urging this defense, must meet ‘a its burden to this defense is adequate and appropriate under the show circumstances.” 2012 WL Mississippi ex rel. Hood v. Entergy Mississippi, Inc., 3704935 at *14 (S.D. Miss. Aug. 25, 2012). The Court should not have proceeded to determining the nature of the releases absent facts (or even “continuing”
Defendants contend that, because the complaint a number of years, it is precluded from being classified as an “event or occurrence.” What Defendants fail to disprove, however, is that through the passage of time the release of PCB’s is in essence a continuous event. Though they hardly do so, Defendants could perhaps discuss various aspects of the pollution problem that might have occurred – such as whether an individual company or person failed to notice or attend to a particular situation, failed to deal with new information or some discovery about the leakage, or did not implement a method for dealing with the problem – and use these to argue that the complaint is comprised of more than one event or occurrence. (Emphasis added.) As was true in Allen, in the instant case there is simply no proof whatsoever as to whether this is a single or multiple events. 2. The District Court erred: (1) as a matter of law in proceeding to find jurisdictional facts on remand where plaintiffs have the burden of proof yet failed to submit any facts in the record to support the court’s finding; and, alternatively (2) was such finding clearly erroneous. The Court noted that plaintiffs have the burden to prove the exception to a preponderance -- for example, “that it is more likely than not” that the failure to remediate newly discovered asbestos was “factually” part of a “continuous” event with releases of red mud from a permitted containment area. But what does this really mean? An “exception to CAFA jurisdiction may be likened to ‘a defense’ to jurisdiction. The. . .party urging this defense, must meet its burden to show this defense is adequate and appropriate under the circumstances.” Mississippi ex rel. Hood v. Entergy Mississippi, Inc., 2012 WL 3704935 at *14 (S.D. Miss. Aug. 25, 2012). The Court should not have proceeded to determining the “continuing” nature of the releases absent facts (or even
SCRG%20Petition%20-as%20filed.docx