Lemings et al v. Eastridge et al

Filing 9

OPINION AND ORDER that defts' 5 Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. Signed by Judge J. Leon Holmes on 9/4/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
BURVEL LEMINGS and
LAURA LEMINGS
v.

PLAINTIFFS

No. 4:12CV00342 JLH

DOUG EASTRIDGE and
KRISTY EASTRIDGE

DEFENDANTS
OPINION AND ORDER

Burvel and Laura Lemings bring this action against Doug and Kristy Eastridge, alleging
trespass, negligence, outrage, and private nuisance. These four claims revolve around bordering
tracts of real property owned by the plaintiffs and the defendants in Van Buren County, and a creek
that flows across their land. The defendants have filed a motion to dismiss the complaint, arguing that
the plaintiffs cannot meet the amount-in-controversy requirement under 28 U.S.C. § 1332. In the
alternative, the defendants request that the Court abstain from exercising jurisdiction under Younger
v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), or at minimum dismiss the outrage
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiffs have responded,
thus the motion is ripe for judgment. For the following reasons, the motion is granted on the
plaintiffs’ outrage claim and denied in regard to the amount in controversy and abstention.
I.
In their complaint, the plaintiffs claim that in November 2011 the defendants began a major
excavation project on their property in Van Buren County. This project eventually diverted the
course of Opossum Walk Creek, according to the plaintiffs, causing severe damage to the plaintiffs’
property, which is located immediately downstream from the defendants’ property, and to an
easement the plaintiffs held across the defendants’ property. Examples of damage given by the

plaintiffs include massive amounts of sediment and debris being washed downstream onto their
property, the rendering of the plaintiffs’ low-water bridge and road as impassable, and the loss of
timber on their property. The plaintiffs allege that the defendants knew that the excavation project
would cause damage to the plaintiffs’ land, and that they carried it out anyways in retaliation for the
plaintiffs having filed a lawsuit against the defendants in May 2008.
II.
When opposing parties in an action are citizens of different states, as they are here, a district
court has original jurisdiction if “the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs . . . .” 28 U.S.C. § 1332(a); Scottsdale Ins. Co. v. Universal Crop
Prot. Alliance, LLC, 620 F.3d 926, 931 (8th Cir. 2010) (citing Kopp v. Kopp, 280 F.3d 883, 884 (8th
Cir. 2002)). The party asserting jurisdiction based on diversity of citizenship generally has the burden
of establishing that the amount in controversy is greater than $75,000. See Schubert v. Auto Owners
Ins. Co., 649 F.3d 817, 822 (8th Cir. 2011). When a “defendant challenges the plaintiff’s allegations
of the amount in controversy, then the plaintiff must establish jurisdiction by a preponderance of the
evidence.” Kopp, 280 F.3d at 884-85. Thereafter, “the complaint will be dismissed if it appears ‘to
a legal certainty’ that the value of the claim is actually less than the required amount.” Id. “The legal
certainty standard is met where the ‘legal impossibility of recovery [is] so certain as virtually to
negative the plaintiff's good faith in asserting the claim.’ Schubert, 649 F.3d at 822 (quoting JTH
Tax, Inc. v. Frashier, 624 F.3d 635, 638 (4th Cir. 2010)).
The defendants have challenged the plaintiffs’ amount-in-controversy allegations, so the
plaintiffs must demonstrate jurisdiction by a preponderance of the evidence; that is, they must show
that “a fact finder could legally conclude, from the pleadings and proof adduced to the court before

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trial, that the damages that the plaintiff suffered are greater than $75,000.” Kopp, 280 F.3d at 885.
The plaintiffs offer the affidavit of Stanley Mathis, a professional engineer with “extensive design and
construction experience on soil and water conservation practices.” Document #8-2, at 1. Mathis
states that he reviewed photographs of Opossum Walk Creek and determined that it “has endured
stress invoked by a channel adjustment, and that stream bank restoration and stabilization is necessary
to prevent further damage downstream.” Id. at 1-3. He also determined, again through photo
review, that “a low water crossing has been destroyed, probably as a result of the recent stream
alterations.” Id. at 3. In Mathis’s opinion, “the damaged stream bank of Opossum Walk Creek can
be restored, if it is done pursuant to a properly designed stream bank restoration and stabilization
project.” Id. Such a project would restore the creek, rebuild the water crossing, and prevent future
damage, and it would cost $189,500. Id.; see also id. at 9-10 (charting the specific costs supporting
Mathis’s overall estimate). Based on this affidavit, the plaintiffs argue that the damage to their land
is temporary (i.e. it can be fixed), not permanent, and therefore the appropriate measure of damages
would be “the cost of restoring the property to the same condition that it was in prior to the injury.”
Fox v. Nally, 34 Ark. App. 94, 96, 805 S.W.2d 661, 662 (Ark. App. 1991). Because the cost of
restoration—$189,500—greatly exceeds the amount-in-controversy minimum, the plaintiffs contend,
they have successfully alleged diversity jurisdiction.
The defendants first argue, based on the affidavit of Doug Eastridge, that the amount-incontroversy requirement cannot be met because they have not caused any damage to the plaintiffs’
property. See Document #6-1, at 2 (Eastridge: “I do not believe that any activity on my part caused
any observable damage to property owned by the Lemings.”). In other words, the defendants
essentially ask the Court to find in their favor on the merits of the case based on a defendant’s

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affidavit stating that there was no damage. To do so would ignore the fact that the plaintiffs have
presented an affidavit stating that there has been damage to the property. See Document #8-2. Thus,
at minimum, a fact issue precludes a ruling in the defendants’ favor. Even if the defendants’ affidavit
were presumed to be true, however, Eighth Circuit precedent indicates that a district court should
recognize “federal jurisdiction ‘where the issues relating to the amount in controversy [are] so
commingled with the merits that the final disposition [is] properly deferrable to the trial itself.” James
Neff Kramper Family Farm P’ship v. IBP, Inc., 393 F.3d 828, 833 (8th Cir. 2005) (quoting
Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir. 1969)).
In the alternative, the defendants argue that the plaintiffs have admitted in their complaint that
any damage done to their land is permanent, not temporary. Thus, this argument goes, “the proper
measure of damages is the diminution in the fair market value of the property by reason of that injury
or, in other words, the difference between the value of the property before and after the injury.” St.
Louis S.F. Ry. Co. v. Friddle, 237 Ark. 695, 696, 375 S.W.2d 373, 374 (1964) (citations omitted).
Using this method, the defendants contend, the specific property damage alleged “does not come near
to the jurisdictional threshold.” See Document #6, at 5. The defendants misconstrue the complaint.
Nowhere do the plaintiffs admit that the damage done to their property is permanent. The plaintiffs
state, in alleging their private nuisance claim, that the defendants’ conduct is creating a “nuisance that
is of a consistent, recurring and permanent nature.” Document #1, at 6 (emphasis added). This is
not admission that the plaintiffs’ property is permanently damaged. Rather, it is an accusation of
ongoing (i.e. permanent) wrongful conduct by the defendants. The complaint explicitly states that
the plaintiffs’ damages request includes “the cost of restoring the stream bank to its natural state” and
“the cost of restoring the Lemings Property to its condition prior to Defendants’ negligence.”

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Document #1, at 4-5. As the defendants have offered no other evidence to indicate that the damages
are permanent, the Court must conclude, for purposes of ruling on the jurisdictional issue, that the
damages are temporary.1 The Mathis affidavit indicates that the cost of restoration is well above
$75,000. That affidavit has not been contested at this early stage, so the plaintiffs have met their
burden. The defendants have offered nothing that would allow the Court, at this point, to find to a
legal certainty that the alleged damage to the plaintiffs’ property would be valued at $75,000 or less.
III.
Next, the defendants argue that, if their amount-in-controversy argument fails, the Court
should abstain, under Younger, from exercising jurisdiction in this case in deference to a case pending
between the same parties in Van Buren County. Abstention is proper, the defendants contend,
because the present action could have been brought in the ongoing state action, neither action
involves a federal question, and the case involves an important state interest—real property. As the
plaintiffs note, however, the only defendant in the present case who was also a party to the state court
case, Doug Eastridge, has recently been dismissed from that case. See Document #8-4. Thus,
abstention is inappropriate, as the parties in the two actions are not the same and therefore the actions
are not parallel. See Trainor v. Hernandez, 431 U.S. 434, 440, 97 S. Ct. 1911, 1916 (1977)
(abstention doctrine involves “litigation between the same parties”); Yang v. Tsui, 416 F.3d 199, 204
n.5 (3rd Cir. 2005) (first prong of Younger test requires state proceeding involving the “same parties
and ‘substantially identical’ claims, raising ‘nearly identical allegations and issues’” (citation omitted));

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Whether damages are permanent or temporary is typically a jury question. See Benton
Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208, 210 (1943). In this case, however, the
defendants have not offered anything that would allow a reasonable jury to conclude that the damages
were permanent.
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Bates v. Van Buren Tp., 122 Fed. Appx. 803, 805 (6th Cir. 2004) (Younger abstention requires “a
parallel case between the same parties”); cf. Int’l Ass’n of Entrepreneurs of Am. v. Angoff, 58 F.3d
1266, 1271 (8th Cir. 1995) (“[T]here is no need for abstention unless the state and federal courts
have concurrent jurisdiction of an issue or case.”).
IV.
Finally, the defendants move the Court to dismiss the plaintiffs’ outrage claim under Federal
Rule 12(b)(6). The pleading standards, and the correlative standards for ruling on a motion to dismiss
under Rule 12(b)(6), are well known. A complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8(a)(2) does
not require a complaint to contain detailed factual allegations, it does require a plaintiff to state the
grounds of his entitlement to relief, which requires more than labels and conclusions. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007). In ruling on
a motion to dismiss, the Court must accept as true all factual allegations in the complaint and review
the complaint to determine whether its allegations show that the pleader is entitled to relief. Schaaf
v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). All reasonable inferences from the
complaint must be drawn in favor of the nonmoving party. Crumpley-Patterson v. Trinity Lutheran
Hosp., 388 F.3d 588, 590 (8th Cir. 2004). The Court need not, however, accept as true legal
conclusions, even those stated as though they are factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009).

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To establish an outrage claim under Arkansas law,2 a plaintiff must demonstrate:
(1) the actor intended to inflict emotional distress or knew or should have known that
emotional distress was the likely result of his conduct;
(2) the conduct was extreme and outrageous, beyond all possible bounds of decency,
and was utterly intolerable in a civilized community;
(3) the actions of the defendant were the cause of the plaintiff's distress; [and]
(4) the emotional distress sustained by the plaintiff was so severe that no reasonable
person could be expected to endure it.
Rees v. Smith, 2009 Ark. 169, *5, 301 S.W.3d 467, 472 (2009) (citing Faulkner v. Ark. Children’s
Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002)).
The defendants’ alleged actions, as described in the complaint, are not so “extreme and
outrageous” as to be “beyond all possible bounds of decency” and “utterly intolerable in a civilized
community,” given the narrow view of the tort of outrage by Arkansas courts. See McQuay, 331
Ark. at 470-71, 963 S.W.2d at 585 (“[The Arkansas Supreme Court] gives a narrow view to the tort
of outrage . . . . Merely describing the conduct as outrageous does not make it so.”); Crockett v.
Essex, 341 Ark. 558, 564, 19 S.W.3d 585, 590 (2000) (“We have taken a strict approach in
determining the validity of outrage cases, and recognized that ‘the tort of outrage should not and does
not open the doors of the courts to every slight insult or indignity one must endure in life.’” (citation
omitted)); see also Hamaker v. Ivy, 51 F.3d 108, 110 (8th Cir. 1995) (“the Arkansas courts take a
very narrow view of claims for the tort of outrage.”). Moreover, the complaint alleges only in a
conclusory fashion that the plaintiffs suffered “damage . . . in the nature of emotional distress.” As

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As this is a diversity action, the Court is obliged to follow Arkansas law in analyzing the tort
of outrage. See Poindexter v. Armstrong, 934 F. Supp. 1052, 1054 (W.D. Ark. 1994).
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noted above, the Court is not required to accept mere “labels and conclusions” such as this. The
complaint fails to state a claim for the tort of outrage.
CONCLUSION
For the reasons explained above, the defendants’ motion to dismiss is GRANTED IN PART
and DENIED IN PART. Document #5. The defendants’ motion to dismiss for lack of jurisdiction
is denied. The defendants’ motion to dismiss on abstention grounds is likewise denied. The
defendants’ motion to dismiss the outrage claim is granted. The outrage claim is dismissed without
prejudice.
IT IS SO ORDERED this 4th day of September, 2012.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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