United States District Court, S.D. New York
October 5, 2005.
SAJIDA BANO, et al., Plaintiff,
UNION CARBIDE CORP. and WARREN ANDERSON, Defendants.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
OPINION AND ORDER
Before this Court are objections to and motions for
reconsideration with regard to a Report and Recommendation
("Report") issued by Magistrate Judge Pitman, denying Plaintiffs'
claims for class certification and intervention of additional
class representatives. The Magistrate Judge's Report is affirmed
and adopted in its entirety, with a few small clarifications
On November 15, 1999, Plaintiffs Haseena Bi and several
organizations representing the residents of Bhopal, India filed a
class action complaint against Defendants asserting claims for
personal injuries and property damage under the Alien Tort
Statute, 28 U.S.C. § 1350, for alleged human rights violations
arising out of the Bhopal gas disaster in India on December 2-3,
1984. The Court presumes a basic familiarity with the facts
surrounding this ghastly chapter in human history. See In re
Union Carbide Corp. Gas Plant Disaster, 634 F. Supp. 842, 844
(S.D.N.Y. 1986) (recounting the disaster). Plaintiffs amended
their complaint to add claims under New York common law for
alleged environmental pollution in and around the Bhopal plant
("UCIL site"). On August 28, 2000, this Court granted Defendants'
motion to dismiss and/or for summary judgment and dismissed all claims in Bi's amended complaint. Bano v. Union
Carbide Corp., No. 99 Civ. 11329, 2000 WL 1225789 (S.D.N.Y. Aug.
28, 2000) ("Bano I"). The Second Circuit Court of Appeals
affirmed in part but remanded Bi's New York law environmental
claims. Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir.
2001) ("Bano II").
On March 18, 2003, this Court granted Defendants' motion to
dismiss and/or for summary judgment and dismissed the remaining
environmental claims. Bano v. Union Carbide Corp., No 99 Civ.
11329, 2003 WL 1344884 (S.D.N.Y. Mar. 18, 2003) ("Bano III").
The Court found that (1) Bi's claims for personal injuries and
property damage were time-barred under New York law, (2) the
organizations lacked standing to pursue damages claims,
reimbursement for costs of medical monitoring, and remediation on
behalf of its members, and (3) an injunction seeking remediation
of the plant site was improper because of impracticability. Id.
at *3-*9. On March 17, 2004, the Second Circuit affirmed most of
the dismissals, except with respect to "Bi's claims for monetary
and injunctive relief for alleged injury to her property." Bano
v. Union Carbide Corp., 361 F.3d 696, 701 (2d Cir. 2004) ("Bano
IV"). The Circuit remanded these claims with instructions to
consider whether Bi may pursue them as a class action. Id. at
712-13, 717. The Circuit further noted that this Court was free
to reconsider the dismissal of the injunction seeking plant-site remediation "in the event the Indian government or the State of
Madhya Pradesh seeks to intervene in the action or otherwise
urges the court to order such relief." Id. at 717.
The Court subsequently received a letter from the Union of
India, dated June 28, 2004, but neither India nor Madhya Pradesh
has sought intervention. The letter states that India has no
objections to remediation, and that it will cooperate in any
clean-up effort. It further states that India does not,
submit . . . to the jurisdiction of the United States
District Court . . . [and is] entitled to sovereign
immunity under international law and do[es] not waive
those immunities by this submission.
On remand, Plaintiffs seek class certification for clean-up of
the UCIL site and the aquifer below the site of a class comprised
of "present residents" of 14 townships that are "contiguous with
the UCIL plant" (Tr. of Oral Argument at 9 (April 28, 2005)).
Plaintiffs also seek intervention of additional class
representatives. These issues were referred to Magistrate Judge
Pitman who, in his Report to this Court, denied both motions.
Judge Pitman concluded that Plaintiffs could not intervene in or
certify a class for a claim of onsite remediation because onsite
remediation was dismissed from the case. Bano v. Union Carbide
Corp., No 99 Civ. 11329 (S.D.N.Y. Aug. 12, 2005) (Report and
Recommendation) (Pitman, M.J.) ("Report").
Plaintiffs made timely objections to the Magistrate Judge's
denial of class certification, and filed a motion for reconsideration. Plaintiffs contend that Judge Pitman overlooked
a claim for offsite remediation. This claim, they argue, is still
in the case, and should be certified.
Having carefully reviewed the Magistrate Judge's Report and
both parties' objections and motion papers, this Court affirms
the Magistrate Judge's decision and elects to adopt the
Magistrate Judge's Report in its entirety. A few issues, however,
bear clarification in light of confusion in the motion papers and
objections, and are therefore discussed below.
As a threshold matter, the Plaintiffs have requested
intervention and certification for a type of injunctive relief
that does not survive the Second Circuit's opinion in Bano IV.
In Bano IV, the Second Circuit affirmed this Court's
dismissals, except with regard to "Bi's claims for monetary and
injunctive relief for alleged injury to her property." Bano
IV, F.3d at 701 (emphasis added). The Plaintiffs, however, seek
intervention in and certification of a claim for remediation, not
of Bi's property, for it appears Bi does not own any affected
property,*fn1 but of the UCIL site and an aquifer located
under the site.
At the opening of oral arguments before the Magistrate Judge to
consider class certification, the Plaintiffs opened by stating:
"Plaintiffs are here today to request certification . . . for an
injunction to clean up the . . . Union Carbide site in Bhopal,
India" (Tr. of Oral Argument at 3). Plaintiffs believed their
claim for plant-site remediation had been automatically
resurrected by the letter from the Indian government (Tr. of Oral
Argument at 3-5). This assumption is incorrect. The Second
Circuit held that this Court was free to reconsider the issue
of onsite remediation if India intervened or sent a letter urging
clean-up. This Court, however, was under no obligation to
reconsider onsite remediation. Receipt of the letter does not
automatically revive the claim.
It is also important to note that the Union of India's letter
does not solve any of the logistical problems addressed by this
Court in its initial dismissal of Plaintiffs' remediation claims:
A court will not grant equitable relief where it
"appears to be impossible or impracticable." UCC now
has no connection with the property and has not had any
control over it for several years. Ordering
remediation by the defendants would be ineffectual as
they have no means or authority to carry it out. . . .
While Plaintiffs correctly acknowledge that the
Indian government would cooperate with any measure
imposed, that cooperation does not mandate this Court
to order remediation by UCC. The Court does not wish
to direct a foreign government as to how that state
should address its own environmental issues. This
court would have no control over any remediation
process ordered. This would render the injunctive
Bano III at *8 (internal citations omitted).
The Second Circuit agreed and confirmed dismissal of injunctive
relief based on sovereignty problems and "concerns . . . as to
the difficulty that a United States court would have in
controlling and overseeing the progress of remediation in India."
Bano IV at 717. A District Court sitting in New York cannot be
expected to control a clean-up effort 8,000 miles away.
Furthermore, because the Union of India does not submit to the
Court's jurisdiction, India is under no obligation to aid
remediation. The Magistrate Judge correctly informed Plaintiffs
that onsite remediation is no longer in the case.
The Magistrate Judge then asked if Plaintiffs were seeking any
remediation of individual properties:
THE COURT: But just so I'm clear, the injunctive
relief you're seeking on behalf of the class is the
clean up of the site and the aquifer.
MR. LEWIS: Correct.
THE COURT: You're not talking about remediation of
individual properties? MR. LEWIS: That's correct, Your Honor, although I
have to qualify
THE COURT: Apart from, I guess, the flow through
effect that cleaning up the aquifer will have.
MR. LEWIS: Apart from the migration of off-site
contamination which originates on the UCIL site.
(Tr. of Oral Argument at 25).
This above quoted text is a request for onsite remediation,
which was dismissed by this Court, and the dismissal was affirmed
by the Second Circuit.
Nonetheless, Plaintiffs contend that the Magistrate Judge erred
in failing to consider their offsite remediation claims for
certification. Plaintiffs only offsite claims, however, are with
regard to the "flow-through effect" described above, and the
possibility of placing a pump offsite to clean the aquifer (Tr.
of Oral Argument at 71). Even if the aquifer could be cleaned by
an offsite pump, this claim does not involve an injunction with
regard to property owned by Bi or remediation of individual
properties. This is not the type of offsite injunctive relief
contemplated by the Second Circuit. The Second Circuit affirmed
this Court's dismissals of all injunctive relief, with one narrow
exception; with regard to "Bi's claims for monetary and
injunctive relief for alleged injury to her property." Bano IV,
361 F.3d at 701. Plaintiffs' claims do not meet this narrow
exception. Even if the issues for which Plaintiffs seek class
certification and intervention remained in the case,
certification would be denied because the claim does not satisfy
the requirements of Fed.R.Civ.P. Rule 23, which governs class
certification procedure. The Magistrate, in a detailed and
thorough discussion of Plaintiffs' claim, concluded that
Plaintiffs satisfied most of Rule 23's requirements, with an
important exception worth noting here: Judge Pitman questioned
the adequacy of class representation.
Rule 23(a)(4) allows certification only if "the representative
parties will fairly and adequately protect the interests of the
class." Plaintiff Bi admits that she lacks substantial financial
resources. Report at 26. The Magistrate observed that,
"Plaintiffs have offered no evidence indicating their awareness
and acknowledgment of their responsibility for the costs of the
class action." Id. at 27. The Magistrate provided Plaintiffs
with the opportunity to cure this defect by submitting "material
of evidentiary weight" establishing their awareness of and
responsibility for the class action costs. Id. at 28. To date,
Plaintiffs have not submitted such materials. Plaintiffs have not
demonstrated that they will adequately represent the class.
Regardless, Plaintiffs' claims for intervention and class
certification are denied because the underlying claim is no
longer in the case. Conclusion
The Magistrate Judge properly denied the Plaintiffs' motions
for class certification and intervention. This Court cannot allow
Plaintiffs to intervene in or to certify a class for a claim that
was dismissed. Even if the claim remained in the case, the
putative class would not be certified because it fails Rule 23's
requirements. Finally, because Bi owns no property, Plaintiffs
can bring no viable claim. The action is dismissed and ordered
removed from the Court's docket. In view of this decision; there
is no need for a pre-motion conference suggested by Mr. Richard
S. Lewis, counsel for Plaintiff, in his letter of August 26,