Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________
No. 9-4112
_____________
JOSEPHAT HENRY; SYLVIA BROWNE;
MAUDE DREW; MARTHA ACOSTA; WILHELMINA GLASGOW;
MERCEDES ROSA; AMADO RODRIGUEZ;
GEORGE RODRIGUEZ; Individually and on behalf of George E.;
SONYA CIRILO; NEFTALI CAMACHO, as Class Representative,
Appellants
v.
ST. CROIX ALUMINA LLC; ALCOA INC;
GLENCORE LTD, FKA Clarendon, Ltd.
_____________
No. 9-4494
_____________
JOSEPHAT HENRY; SYLVIA BROWNE; MAUDE DREW;
MARTHA ACOSTA; WILHELMINA GLASGOW;
MERCEDES ROSA; AMADO RODRIGUEZ;
GEORGE RODRIGUEZ; Individually and on behalf of George E.;
SONYA CIRILO; NEFTALI CAMACHO, as Class Representative,
Appellants
v.
ST. CROIX ALUMINA, LLC;
ALOCA, INC; GLENCORE LTD, FKA Clarendon, Ltd.
_____________
On Appeal from the District Court
of the Virgin Islands
(No. 99-cv-00036)
District Judge: Honorable Harvey Bartle III
___________
Submitted December 17, 2010
Before: MCKEE, Chief Judge; FUENTES and SMITH, Circuit Judges
(Opinion Filed: March 4, 2011)
Fuentes, Circuit Judge:

Appellants-class plaintiffs Josephat Henry et al. (the Class) appeal the District
Courts orders granting summary judgment to defendants St. Croix Alumina, LLC (St.
Croix Alumina), Alcoa, Inc. (Alcoa), and Glencore Ltd. (Glencore) (collectively,
Defendants), as well as discovery-related orders by the District Court. For the reasons
given below, we find that we lack appellate jurisdiction and therefore dismiss the appeal.
I.
Because we write primarily for the parties, we we set forth only the facts and
history of this lengthy and complicated case that are relevant to our conclusion. This is
an interlocutory appeal from two summary judgment orders granted in favor of the
Defendants. Class members brought this action as a result of the storage of bauxite and
red mud on the premises of St. Croix Refinery (the Refinery). Bauxite, which was
stored in a covered shed, is a generally inert material, while bauxite residue (also known
as red mud), which was stored in open cells, is a highly alkaline product with
2
potentially negative effects. On September 21, 1998, when Hurricane Georges

pummeled St. Croix, bauxite was driven from the Refinery into homes in six neighboring
communities.
In 1999, plaintiffs brought suit against St. Croix Alumina, Alcoa, and Glencore,
based on their personal injury and property damages resulting from Hurricane Georges.
They also sought punitive damages and an injunction requiring Defendants to, among
other things, desist [from] all activities that allow the release of [certain] pollutants and
to remove all such pollutants...from the island of St. Croix. A class was originally
certified in August 2000 under Federal Rule of Civil Procedure 23(b)(3). In June 2008,
Chief Judge Bartle decertified the Rule 23(b)(3) class and re-certified a Rule 23(b)(2)
class to its current composition, individuals who currently reside, work and or own
property in a number of neighborhoods adjacent to an alumina refinery, St. Croix
Alumina, and who could suffer personal injuries or property damage in the future as a
result of the current storage and containment of bauxite at the refinery (emphasis added).
That is, the claims of the Class as now certified arise from the possibility of future harm
to individuals now in proximity to the Refinery from the alleged present-day storage of
pollutants at the Refinery. Alcoa, St. Croix Alumina, and Glencore moved for summary
judgment on all the remaining individual claims for property damage, personal injury and
punitive damages.1
In addition to adopting the arguments of the other Defendants, Glencore also made
additional arguments based on issues of corporate ownership which apply to it alone.
3
The District Court granted these motions in part and denied them in part,
dismissing the personal injury and punitive claims but denying the motion with regard to
the property damage claims. Alcoa, St. Croix Alumina, and Glencore then moved for
summary judgment on plaintiffs injunctive relief claim, which the District Court granted
in two separate orders. It ruled that plaintiffs could not point to any evidence produced
in the years of discovery that constitutes significant probative evidence tending to support
a continuing nuisance after the hurricane abated. In light of the District Courts rulings,
only the individual property claims are still pending before it.
Over the course of the litigation, the District Court also adopted certain discoveryrelated orders issued by the magistrate judge. In addition to the two summary judgment
rulings, the Class now attempts to appeal: (a) the magistrates denial of a motion pursuant
to Fed. R. Civ. P. 56(f) for additional discovery before the resolution of the motions for
summary judgment; and (b) the sanctions imposed by the magistrate on Alcoa and St.
Croix Alumina related to their failure to produce certain documents during the litigation.
II.
The Class and the Defendants all agree that the Classs appeals of the District
Courts grants of summary judgment are interlocutory. We generally lack jurisdiction to
review interlocutory orders, with certain statutory exceptions. One such exception is
established by 28 U.S.C. 1292(a), which provides that courts of appeals shall have
jurisdiction of appeals from: (1) Interlocutory orders of the district courts . . . granting,
continuing, modifying, refusing, or dissolving injunctions. OFC Commr Baseball v.
Markell, 579 F.3d 293, 298 (3d Cir. 2009). However, 1292(a) was intended to carve
4
out only a limited exception to the final-judgment rule and the Supreme Court ha[s]
construed the statute narrowly. Carson v. American Brands, Inc., 450 U.S. 79, 84
(1981). Thus, an order expressly denying an injunction is immediately appealable under
1292(a) as of right. Markell, 579 F.3d at 298. In contrast, an order which has only the
practical effect of denying an injunction may also be appealed, but only if the denial (1)
will have a serious, perhaps irreparable, consequence; and (2) can be effectively
challenged only by immediate appeal. Carson, 450 U.S. at 83-84. In short, under
Carson, we may hear interlocutory appeals of orders effectively denying injunctive relief
only when the denial has grave repercussions and there is no other avenue by which the
party seeking appeal can gain relief.
The Class argues that the District Courts grants of summary judgment were
orders explicitly refusing an injunction, rather than orders merely having the effect of
refusing an injunction, and that their appeal is therefore not subject to the Carson
standard. The Defendants, in opposition, argue that the grants of summary judgment
were only effective denials of injunctive relief and that the Class must therefore satisfy
the requirements of Carson. It is true that the District Court enter[ed] summary
judgment in favor of defendants...on plaintiffs class claims for injunctive relief.
However, in cases in similar procedural postures, we have found that grants of dispositive
motions against parties who have sought injunctive relief are only effective denials of that
relief. For instance, in United States v. RMI Co., 661 F.2d 279, 281 (3d Cir. 1981), we
treated an appeal from a grant of partial summary judgment against a plaintiff who had
requested injunctive relief as an order that has only the effect of denying a permanent
5
injunction, and thus subject to Carson. Similarly, in Ross v. Zavarella, 916 F.2d 898,
900-02 (3d Cir. 1990), we found that a grant of a partial motion to dismiss a complaint
that requested preliminary injunctive relief also only effectively denied the injunction,
and thus the appeal of that order was subject to Carson. The Class argues that the present
case can be distinguished from those cases because the District Court in this case actually
mentioned the Classs request for injunctive relief in its opinion, but we do not think a
mere reference to the relief sought is sufficient to qualify the order for a 1292(a)(1)
appeal as of right. Therefore, the Classs appeal is subject to the Carson standard.
We have recently held that, in evaluating the serious consequences prong of the
Carson standard, urgency is the touchstone . . . When the appellees actions are not
causing any continuing harm, we generally have held that this prong is not met.
Victaulic Co. v. Tieman, 499 F.3d 227, 232 (3d Cir. 2007). [W]hether the appellant
moved for a preliminary injunction is evidence of the cases urgency. Id.
In this case, the Class is seeking a permanent injunction to compel clean-up of the
refinery site to avert the risk of future harm in the form of fugitive emissions from the
bauxite and red mud presently stored at the refinery site. The litigation has been
proceeding for more than ten years; it is difficult to see the urgency of resolving the
present appeals on an interlocutory basis. The injunctive relief sought aims at preventing
future harm, not ending a continuing harm caused by the Defendants actions. And at
no time has the Class sought a preliminary injunction to compel clean-up of the site.
Moreover, as we previously stated, after many years of litigation, plaintiffs have
produced no record evidence tending to show that a continuing nuisance [involving the
6
escape of red mud] ever existed at the Refinery. Given these facts, we cannot find that
the denial of injunctive relief to the Class will have serious, perhaps irreparable
consequences.2 Therefore, we lack jurisdiction to review the District Courts grants of
summary judgment at this time.
As for the various discovery orders and allegedly inadequate sanctions of its
adversaries for discovery misconduct of which the Class complains, [d]iscovery orders
are not final decisions within the meaning of 28 U.S.C. 1291, and therefore we lack
jurisdiction to hear interlocutory appeals of such orders. Adapt of Philadelphia v.
Philadelphia Housing Auth., 433 F.3d 353, 360 (3d Cir. 2006). Similarly, discovery
sanctions are not immediately appealable under 28 U.S.C. 1291, even when appealed
by the party against whom the sanctions have been assessedas is not the case in the
matter before us. Comuso v. Natl R.R. Pass. Corp., 267 F.3d 331, 339 (3d Cir. 2001).
III.
For the foregoing reasons, we dismiss the Classs appeal for lack of jurisdiction.
Thus, we need not consider whether the denial can be effectively challenged only by
immediate appeal, the other requirement of Carson.
7

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

Fuentes, Circuit Judge:

potentially negative effects. On September 21, 1998, when Hurricane Georges

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