Richards et al v. Lesaffre Yeast Corporation et al

Filing 76

MEMORANDUM OPINION AND ORDER granting defendants' 59 MOTION for Partial Summary Judgment. Signed by Hon. Chief Judge Mark E. Fuller on 8/11/2009. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION M A C O N RICHARDS, et al., P l a i n t if f s , v. L E S A F F R E YEAST CORPORATION, e t al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C A S E NO. 1:07-cv-163-MEF (W O )

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION O n January 18, 2007, Macon and Jennifer Richards ("Plaintiffs'") filed suit against Lesaffre Yeast Corporation ("Lesaffre") and Dominique Ciboulet (collectively " D e f e n d a n ts " ) in the Circuit Court of Henry County, Alabama. On behalf of a class, P la in tif f s sought an unspecified amount of punitive and compensatory damages for injuries allegedly suffered by pollution from Lesaffre's Henry County plant ("the Lesaffre p la n t" ). Plaintiffs bring claims for nuisance (Count I), negligence (Count II), and w a n to n n e ss (Count III) relating to the Lesaffre plant's yeast production. On February 23, 2 0 0 7 , Defendants removed Plaintiffs' suit to the Middle District of Alabama. T h is cause is before the Court on Defendants' Motion for Summary Judgment (D o c . #59) filed on April 10, 2009. The Court has carefully considered the arguments m ad e in support of and in opposition to the motion, and for the reasons set forth below, th e Court finds that the motion is due to be GRANTED.

I I . JURISDICTION T h e Court has subject matter jurisdiction under 28 U.S.C. § 1332 because P la in tif f s are citizens of different states and the amount in controversy requirement for s u b je c t matter jurisdiction is satisfied. (Doc. #20). The parties do not contest personal ju ris d ic tio n or venue, and the Court finds a sufficient factual basis for each. I I I . STANDARD OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on f ile , together with the affidavits, if any, show that there is no genuine issue as to any m a te ria l fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the re c o rd as a whole could lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." R e d w in g Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (q u o tin g Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `th e pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any,' which it believes demonstrate the absence of a genuine issue o f material fact." Celotex, 477 U.S. at 323. The movant can meet this burden by

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p re se n tin g evidence showing there is no dispute of material fact, or by showing the n o n m o v in g party has failed to present evidence in support of some element of its case on w h ic h it bears the ultimate burden of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) "requires the nonmoving p a r ty to go beyond the pleadings and by her own affidavits, or by the `depositions, a n sw e rs to interrogatories, and admissions on file,' designate `specific facts showing that th e re is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt a s to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 5 7 4 , 586 (1986). On the other hand, a court ruling on a motion for summary judgment m u s t believe the evidence of the nonmovant and must draw all justifiable inferences from th e evidence in the nonmoving party's favor. Anderson, 477 U.S. at 255. After the n o n m o v in g party has responded to the motion for summary judgment, the court must g ra n t summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). I V . FACTS AND PROCEDURAL BACKGROUND T h e Court has carefully considered all depositions, affidavits, and other documents s u b m itte d in support of and in opposition to the motion. The submissions of the parties, v i e w e d in the light most favorable to the nonmoving party, establish the following facts.

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A . Facts Defendants operate a liquid yeast plant on U.S. Highway 431 in Henry County, A la b a m a . Lesaffre's predessor, Columbia Yeast, originally built the plant and began o p e ra tin g in 1990. During the yeast production process, Lesaffre collects an odorous e f f lu e n t separated from the yeast in holding ponds behind the plant. Plaintiffs own land adjacent to the plant and built a house on their property in 1 9 7 7 . They contend that the plant began emitting foul odors in 1990-1991. In 1992, M a c o n Richards filed an official complaint with the Alabama Department of E n v iro n m e n ta l Management (ADEM) about the odors. Plaintiffs describe the odors as f lu c tu a tin g in their frequency and strength over the years. At times, the smell is so strong th a t they cannot go outdoors. Other times, the smell does not prevent them from outdoor a c tiv itie s. Plaintiffs have not discerned a pattern to the occurrence or strength of the o d o rs . Instead, they describe the odors as fluctuating in various degrees since the plant f irs t operated in 1990. B . Procedural History In January of 2007, Plaintiffs initiated this lawsuit by filing a complaint in the C irc u it Court of Henry County. (Doc. #1). Defendants promptly removed the case to this C o u rt based on diversity jurisdiction. Id. Plaintiffs moved to remand this action back to s ta te court on March 16, 2007, but the Court denied their motion in a Memorandum O p in io n and Order issued on August 1, 2007. (Docs. #7, 20). Plaintiffs bring claims for

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p riv a te nuisance, negligence, and wantonness under Alabama law. (Doc. # 1). They seek c o m p e n s a to ry and punitive damages for injuries allegedly suffered by the odors emitted f ro m Lesaffre's plant. Id. V. DISCUSSION D e f en d a n ts seek summary judgment only on Plaintiffs' nuisance claim. They a rg u e that the doctrine of prescription bars the nuisance claim because Plaintiffs filed suit m o re than ten years after the nuisance began. In response, Plaintiffs argue that p re sc rip tio n does not bar their nuisance claim because the nuisance was not continuous in ch ara cter or of the like kind and degree to satisfy the prescription doctrine. The Court f in d s that Defendants are entitled to summary judgment as to the nuisance claim because th e y had acquired a prescriptive right. A . Nuisance U n d e r Alabama law, a nuisance is anything that works hurt, inconvenience or damage to another. The fact that th e act done may otherwise be lawful does not keep it from being a n u is a n c e. The inconvenience complained of must not be fanciful or such as w o u ld affect only one of a fastidious taste, but it should be such as would a f f e c t an ordinary reasonable man. A LA. CODE § 6-5-120 (1975). The statutory definition of "nuisance" codifies Alabama's c o m m o n law on the matter. Russell Corp. v. Sullivan, 790 So. 2d 940, 951 (Ala. 2001). A nuisance can be public or private. A public nuisance is one which damages all persons who come within the s p h e re of its operation, though it may vary in its effects on individuals. A 5

p riv a te nuisance is one limited in its injurious effects to one or a few in d iv id u a ls . Generally, a public nuisance gives no right of action to any in d iv id u a l, but must be abated by a process instituted in the name of the s ta te . A private nuisance gives a right of action to the person injured. A LA. CODE § 6-5-121. Nuisance law is premised on the theory that "every man must so u s e his own property as not to interfere with that of his neighbor." Union Cemetery Co. v. H a r r is o n , 101 So. 517, 519 (Ala. Ct. App. 1924). In other words, if a defendant's actions in tru d e on a plaintiff's "interest in use and enjoyment of [his] property, the law of n u is a n c e applies." Boyce v. Cassese, 941 So. 2d 932, 946 (Ala. 2006) (quoting Borland v . Sanders Lead Co., 369 So. 2d 523, 529 (Ala. 1979)); see also Rigsby v. Burton, 305 So. 2 d 366, 367 (Ala. 1974) (finding that property owners must use their property in a way that "is not a nuisance, nor otherwise a hazard to the safety and well-being of others"); F o w le r v. Fayco, Inc., 275 So. 2d 665, 669 (Ala. 1973) (stating that whether a d ef en d an t's activities are otherwise lawful and within the parameters set by regulatory ag en cies does not necessarily preclude a successful nuisance claim). B . Prescription T h e right to maintain a private nuisance may be acquired by prescription. Stouts M o u n t a in Coal & Coke Co. v. Ballard, 70 So. 172, 174 (Ala. 1915). "A cause of action f o r a private nuisance of like kind and degree, continuous in character, endured for ten ye a rs without remedial action, is forever barred by prescription." Beam v. Birmingham S la g Co., 10 So. 2d 162, 165 (Ala. 1942). A defense grounded on the passage of time m u s t be judged from the date when the harmful results occurred, and a nuisance cause of 6

a c tio n does not arise until the harmful consequences are felt. City of Birmingham v. L e b e rte , 773 So. 2d 440 (Ala. 2000) ("For an abatable nuisance the cause of action does n o t arise until the harmful consequences occur, and each occurrence or recurrence of such d a m a g e s constitutes a separate cause of action."); City of Clanton v. Johnson, 17 So. 2d 6 6 9 , 672 (Ala. 1944) (same); Union Cemetery Co. v. Harrison, 101 So. 517 (Ala. Ct. A p p . 1924) ("In cases of damages by nuisance it is considered that the injurious c o n se q u e n ce s resulting from the nuisance, rather than the act which produces the n u is a n c e , is the cause of action, and hence it is held that the cause of action does not arise u n til harmful consequences occur."). To establish a prescriptive right to maintain a n u is a n c e, "the use must not only be open, adverse, and continuous, etc., but with the k n o w le d g e and acquiescence of the person whose right is invaded ... [a]nd the use must b e such as to produce a uniform result during the period of adverse claim or holding." S t o u ts Mountain Coal & Coke Co. v. Ballard, 70 So. 172, 174 (Ala. 1915). C. Instant Case P la in tif f s claim that Defendants' actions created and maintained a nuisance under A la b a m a law. (Doc. #1). They allege that the Lesaffre's plant releases foul odors that c a u se a "material, substantial, and unreasonable interference" with the use and enjoyment o f their property and that such damage would affect an ordinary, reasonable person. Id. at 7 . Defendants do not dispute that the Lesaffre plant's operation created a private n u is a n c e. Instead, Defendants argue that Plaintiffs' nuisance claim is barred by the

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d o c trin e of prescription. Plaintiff filed her Complaint on January 18, 2007. To succeed on a prescription d e f en s e , therefore, Defendants must show that the Lesaffre plant's emissions were "open, a d v e r se , and continuous ... with the knowledge and acquiescence of the person whose rig h t is invaded" for a ten-year period beginning on or before January 17, 1997. Ballard, 7 0 So. at 174. P la in tif f s argue that the Defendants have not shown that the alleged prescription w a s continuous and maintained in the same manner for a ten-year period. (Doc. #61, pg. 1 0 ). Defendants, however, presented the Court with evidence that Plaintiffs knew of the n u isa n c e since 1990. Plaintiffs testified that the foul odors bothered them "ever since it [ th e Lesaffre plant] opened up" in 1990-1991. (Doc. #59, Exhibit C, pg. 72). In addition, M a c o n Richards filed an official complaint with the ADEM about the odors in 1992. (Doc. #63, Exhibit A). Therefore, no reasonable fact finder could find that Plaintiffs first e x p e rie n c e d the nuisance after 1992. See Leberte, 773 So. 2d at 441 (a nuisance cause of ac tio n arises when the harmful consequences are felt). D e f en d a n ts have also presented evidence that the harmful results were "of like k in d and degree" throughout the period of the emissions. See Beam, 10 So. 2d at 165. Although Plaintiffs describe the odors as fluctuating in their strength and frequency over th e years, they testified that the odors, when present, were as harmful in 1991 as they

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w e re in 2008. (Doc. #59, Exhibit C, pg. 76).1 The Court concludes that no reasonable f a ct finder could find that the harmful effect of Defendants' activity were not of the "like k ind and degree" for a ten-year period. Therefore, Defendants are entitled to summary ju d g m e n t on Plaintiffs' private nuisance claim because Defendants acquired a p r e s c rip t iv e right to maintain the alleged nuisance in 2002, ten years after Plaintiffs first f e lt the harmful consequences of the nuisance. V I. CONCLUSION A cc o rd in g ly, it is hereby ORDERED that Defendants' Motion for Partial Summary J u d g m en t (Doc. # 59) is GRANTED. D o n e this the 11th day of August, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

The Court is unconvinced by Plaintiffs' argument that it is "impossible" for them to experience harm of the "like kind and degree" when they were unaffected by the odor on some days and affected on others. The law does not require that the nuisance be of the "like kind and degree" on a daily basis; it only requires that the nuisance be of the "like kind and degree" for a ten-year period. 9

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