Jim Aana; et al. vs. Pioneer Hi-Bred International, Inc.
Filing
224
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS GAY & ROBINSON, INC. AND ROBINSON FAMILY PARTNERS' MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT UNDER FED. R. CIV. P. 12(B)(6) 140 ; AND GRANTING IN PART AND DENYING IN PAR T DEFENDANTS GAY & ROBINSON, INC., ROBINSON FAMILY PARTNERS, AND PIONEER HI-BRED INTERNATIONAL, INC.'S MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT 141 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/9/2013. ~ "[T]he Court GRANTS Plaintiffs leave until September 6, 2013 to file a third amended complaint consistent with the terms of this Order." ~ [Order follows hearing held 6/24/2013. Minutes of hearing: doc no. 206 ] (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
Jim Aana; et al. vs. Pioneer Hi-Bred International, Inc.
Doc. 224
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JIM AANA, et al., on behalf
of themselves and all others
similarly situated,
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
PIONEER HI-BRED
)
INTERNATIONAL, INC., a DuPont )
Business and Iowa
)
Corporation, GAY & ROBINSON, )
INC., a Hawaii corporation;
)
ROBINSON FAMILY PARTNERS, a
)
general partnership
)
registered in Hawaii; and DOE )
DEFENDANTS 1-10,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 12-00231 LEK-BMK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS GAY &
ROBINSON, INC. AND ROBINSON FAMILY PARTNERS’ MOTION TO DISMISS
PLAINTIFFS’ SECOND AMENDED COMPLAINT UNDER FED. R. CIV. P.
12(B)(6); AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS GAY & ROBINSON, INC., ROBINSON FAMILY PARTNERS,
AND PIONEER HI-BRED INTERNATIONAL, INC.’S
MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT
On February 20, 2013, Defendants Gay & Robinson, Inc.
and Robinson Family Partners (“the Robinson Defendants”) filed
their Motion to Dismiss Plaintiffs’ Second Amended Complaint
Under Fed. R. Civ. P. 12(b)(6) (“the Robinson Motion”).
no. 140.]
[Dkt.
On the same date, the Robinson Defendants and Pioneer
Hi-Bred International, Inc.1 (“Pioneer”) filed a Motion to
1
The Court will refer to Pioneer and the Robinson
(continued...)
Dockets.Justia.com
Dismiss Plaintiffs’ Second Amended Complaint (“Defendants’
Motion”).
[Dkt. no. 141.]
Plaintiffs Jim Aana, et al., on
behalf of themselves and all others similarly situated
(collectively, “Plaintiffs”), filed their memorandum in
opposition to the Robinson Motion on May 24, 2013, and the
Robinson Defendants filed their reply (“Robinson Reply”) on
June 10, 2013.
[Dkt. nos. 193, 201.]
Plaintiffs also filed
their memorandum in opposition to Defendants’ Motion on May 27,
2013, and Defendants filed their reply (“Defendants’ Reply”) on
June 10, 2013.
[Dkt. nos. 194, 202.]
hearing on June 24, 2013.
These matters came on for
Appearing on behalf of Defendants were
Michael J. Scanlon, Esq., Michael M. Purpura, Esq., and Adam D.
Friedenberg, Esq.
Appearing on behalf of Plaintiffs were P. Kyle
Smith, Esq., and Gerard R. Jervis, Esq.
After careful
consideration of the motions, supporting and opposing memoranda,
and the arguments of counsel, the Robinson Motion and Defendants’
Motion are HEREBY GRANTED IN PART AND DENIED IN PART for the
reasons set forth below.
BACKGROUND
Plaintiffs filed their original Complaint on December
13, 2011 in the state court.
On May 4, 2012, Defendants filed
their Notice of Removal of Mass Action pursuant to 28 U.S.C.
1
(...continued)
Defendants collectively as “Defendants.”
2
§§ 1332, 1441, and 1446, as well as under the Class Action
Fairness Act, 28 U.S.C. § 1453 (“CAFA”).
A (Complaint).]
[Dkt. no. 1; id., Exh.
Plaintiffs filed a Motion to Remand on May 25,
2012, [dkt. no. 9,] which the district judge denied on August 16,
2012 [dkt. no. 30].2
Plaintiffs filed a Renewed Motion for
Remand on February 7, 2013.
[Dkt. no. 129.]
On April 26, 2013,
this Court denied that motion, ruling that there is diversity
jurisdiction over the instant case pursuant to CAFA.
[Dkt. no.
173.]
On February 6, 2013, Plaintiffs filed their Second
Amended Complaint (Property Related Claims) (“Second Amended
Complaint”).
[Dkt. no. 128.]
According to the Second Amended
Complaint, in approximately August of 1998, the Robinson Family
Partners leased fields to the east of Waimea, Kauai, to Gay &
Robinson, Inc., which in turn leased it to Pioneer.
Amended Complaint at ¶ 10.]
[Second
“Pioneer uses the fields . . . to
conduct open air testing of genetically modified (“GMO”) crops as
part of Pioneer’s Waimea Research Center.”
(footnote omitted).]
GMO Test Fields.”
[Id. at ¶ 12
The Court will refer to the fields as “the
Plaintiffs allege that poor soil conservation
practice have led to the migration of pollutants, such as dust
2
This case was previously assigned to United States
District Judge J. Michael Seabright. Judge Seabright filed an
order of recusal on November 27, 2012, and the case was
reassigned to this Court.
3
and pesticides, that blow into the Waimea community, damaging
Waimea residents’ homes and creating a health hazard.
¶¶ 15-17, 30-33.]
[Id. at
Plaintiffs allege that Defendants have
breached their common law duties, as well as their duties under
state laws and local ordinances such as the Hawaii Air Pollution
Control Act, Haw. Rev. Stat. Chapter 342B, Haw. Rev. Stat.
§ 149A-31, and Kauai Ordinance 808 (“Ordinance 808”).
¶¶ 27-28.]
[Id. at
Plaintiffs also allege that the Robinson Defendants,
through their historic use of pesticides on their other
properties, have an understanding of the harmful effects of
pesticide and dust migration.
Despite having this knowledge, the
Robinson Defendants failed to:
a) investigate Pioneer’s conservation and farming
practices; b) investigate the degree of danger to
Waimea residents and the environment posed by
Pioneer’s pesticides; c) require Pioneer to
implement measures to prevent the discharge of
pollutants like dust and pesticides from
Defendants’ GMO Test Fields; and d) . . .
implement any measures itself to prevent the
migration of pollutants from the GMO Test Fields
into the Waimea community and environment.
[Id. at ¶ 39.]
Plaintiffs allege that, in June 2000, the Waimea
residents gave Pioneer a Petition For Cleaner Air (the “Waimea
Petition”), which contained complaints about the impact of
fugitive dust and chemicals from the GMO Test Fields.
¶ 42; id., Exh. 5 (Waimea Petition).]
[Id. at
On October 31, 2000,
Pioneer responded to the Waimea Petition by letter, affirming its
4
commitment to protecting the environment and the Waimea community
(“October 2000 Response Letter”).
[Second Amended Complaint,
Exh. 6 (October 2000 Response Letter).]
Pioneer also represented
that it was taking various steps such as, “decreasing vehicular
traffic on farm roads, installing irrigation along the western
edge of the GMO Test Fields to encourage the growth of a
vegetation shield, [and] reducing vehicle speeds on the station
to 10 mph . . . .”
[Second Amended Complaint at ¶¶ 45-46.]
Despite these representations, Plaintiffs allege that they saw no
changes and continued to feel the effects from the pollutants.
Plaintiffs allege that Pioneer’s disregard of the
impact to Waimea violated Ordinance 808, [id. at ¶ 50,] which
requires the implementation of “‘Best Management Practices’ or
‘BMPs’ [which] means activities, practices, facilities, and/or
procedures that will to the maximum extent practicable prevent
the discharge of pollutants, including sediment and other
contaminants, from a construction site.”
and some quotation marks omitted).]
[Id. at ¶ 56 (footnote
Plaintiffs allege that,
“[i]n 2002, Pioneer requested an Agricultural Exemption under
Ordinance 808 for working the GMO Test Fields, which [would]
exempt[] Pioneer’s grubbing of its GMO Test Fields from oversight
by the Kauai County Engineer and the necessity to obtain a permit
under Ordinance 808.”
[Id. at ¶ 62 (footnote omitted).]
As part
of its application, Pioneer submitted a conservation plan (“2002
5
Conservation Plan”).
Plaintiffs allege that Pioneer did not
implement the elements of the plan, and dust and pesticides from
Pioneer’s operations continued to harm the Waimea residents.
[Id. at ¶¶ 64-67; id., Exh. 9 (2002 Conservation Plan).]
Plaintiffs also allege that, as part of Pioneer’s
response to complaints from the Waimea community in 2010, Pioneer
issued a letter dated December 2011, which represented that it
had been following reasonable agricultural practices (“December
2011 Letter”).
false.
Plaintiffs allege that these representations were
[Second Amended Complaint at ¶ 179; id., Exh. 12
(December 2011 Letter).]
Plaintiffs allege that the Waimea residents only
recently discovered that Defendants failed to implement the 2002
Conservation Plan.
Plaintiffs state that they learned of this
through the March 3, 2011 Notice of Grubbing Violation Sedimentation & Erosion Control Ordinance 808 TMK: (4) 1-7005:004 issued to Defendants by the County of Kauai Department of
Public Works (“Notice of Violation”).
[Second Amended Complaint
at ¶ 71; id., Exh. 10 (Notice of Violation).]
The Notice of
Violation stated that Defendants were in violation of Ordinance
808 because they failed to maintain the GMO Test Fields in a
condition that would prevent damage by sedimentation to area
waters and the property of others.
¶ 72.]
[Second Amended Complaint at
Plaintiffs allege that, after the Notice of Violation,
6
Waimea Residents now know that not only did
Pioneer and the Robinson Entities fail to
implement the minimal conservation measures - much
less best management practices - from 2002 to 2010
required within the 2002 Conservation Plan, but
that the Robinson Entities also leased
approximately 1000 additional acres to Pioneer in
2010 that Pioneer began immediately grubbing
without a permit, conservation plan, or Ag
exemption.
[Id. at ¶ 78 (emphases in original).]
Plaintiffs’ Second Amended Complaint alleges the
following claims: (1) negligence against all Defendants for
failure to use due care (Count I); (2) negligence against all
Defendants for failure to investigate and warn (Count II); (3)
negligence per se against all Defendants (Count III); (4) strict
liability against Pioneer (Count IV); (5) trespass against all
Defendants (Count V); (6) nuisance against all Defendants (Count
VI); (7) negligent and intentional misrepresentation against all
Defendants (Count VII); and (8) landlord liability for the acts
of a tenant against the Robinson Defendants (Count VIII).
Plaintiffs seek the following relief jointly and
severally against Defendants: general, special, and consequential
damages; diminution in value to Waimea residents’ real property;
costs and reasonable expenses to cure and mitigate conditions;
preliminary and permanent injunctive relief requiring Defendants
to investigate and implement measures that comply with applicable
laws and cease the migration of excessive fugitive dust and
pesticides; punitive damages; attorney’s fees; and prejudgment
7
interest.
[Id. at pg. 39.]
Plaintiffs also seek to toll the
statute of limitations because: “a) of the recent discovery of
Pioneer and the Robinson Entities’ violations of state and local
law; b) Pioneer’s fraudulent concealment of its ongoing
violations of state and local law; c) for any and all other
reasons to justify equitable tolling of any applicable statute.”
[Id. at pgs. 39-40.]
I.
The Robinson Motion
In the Robinson Motion, the Robinson Defendants seek
dismissal of all claims against them on the grounds that, as the
landlord, they cannot be held liable for the alleged tortious
acts of Pioneer, their tenant.
The Robinson Defendants first argue that Plaintiffs’
negligence claim against the Robinson Defendants (Count I) must
fail because it is based upon the manner in which Pioneer
conducts farming on the leased property.
Robinson Motion at 6.]
[Mem. in Supp. of
Specifically, Count I alleges that
Defendants failed to “use due care to prevent the mitigation of
excessive fugitive dust and dangerous pesticides into the Waimea
community and environment.”
[Second Amended Complaint at ¶ 100.]
The Robinson Defendants argue, however, that a landlord is not
obligated to oversee the operations of its tenant but, rather, is
liable for the torts of its tenant only where it knew at the time
of letting that the tenant would necessarily act tortiously.
8
[Mem. in Supp. of Robinson Motion at 7 (quoting Restatement
(Second) of Torts § 837 (1979)).]
While the Robinson Defendants have found no Hawai`i
cases applying § 837, courts in California and other states have
done so.
[Id. at 7-8.]
The Robinson Defendants note that a
California appellate court held, under facts similar to the
instant case, that a lessor is “not responsible for dust drift
caused by lessee where land ‘leased for a lawful and proper
purpose, when there is no nuisance or illegal structure upon it
at the time of the letting[.]’”
[Id. at 8 (quoting Meloy v. City
of Santa Monica, 12 P.2d 1072, 1074 (Cal. Ct. App. 1932)).]
The Robinson Defendants also state that they are aware
of no Hawai`i case applying this principle, but they do note that
Hawai`i courts have followed the Restatement (Second) of Torts,
§ 356, which the Robinson Defendants argue articulates the
identical principle of non-liability in the premises liability
context.
[Id. at 11.]
Thus, the Robinson Defendants argue that
“in Hawaii, as elsewhere, ‘[t]he general rule is that a landowner
is not liable for injuries occurring after a lessee takes
possession of the land.’”
[Id. at 11-12 (alteration in Mem. in
Supp. of Robinson Motion) (some citations omitted) (quoting
Mitchell v. United States, Civ. No. 11–00088 HG–KSC, 2011 WL
4048986, at *4 (D. Hawai`i Sept. 12, 2011)).]
Applying this standard to the instant case, the
9
Robinson Defendants argue that Plaintiffs have alleged no facts
that, if proven, would demonstrate that the Robinson Defendants
had knowledge of unlawful conduct at the time they leased the
Property to Pioneer, or that they leased the Property for an
inherently injurious purpose.
Defendants note that farming is
not inherently a nuisance, as stated in the Hawai`i Right to Farm
Act, Haw. Rev. Stat. § 165-1 et seq.
[Id. at 12.]
Rather,
farming is only a nuisance where “‘the farming operation has been
conducted in a manner [not] consistent with generally accepted
agricultural and management practices.’”
[Id. (alteration in
Mem. in Supp. of Robinson Motion) (quoting Haw. Rev. Stat. § 1654).]
Further, the Robinson Defendants note, under the Right to
Farm Act, “nuisance” includes any claim for property damage
caused by farming, including negligence and trespass claims.
[Id. at 12-13 (citing Haw. Rev. Stat. § 165-2).]
As such, the
Robinson Defendants argue that their knowledge that Pioneer
planned to conduct farming activities on the leased land does not
equate with a knowledge that Pioneer would create a nuisance.
The Robinson Defendants also argue that, to avoid
dismissal, Plaintiffs were required to allege that, when the
lease was signed, the Robinson Defendants had knowledge of
Pioneer practices that would necessarily create a nuisance, for
example, allegations that the Robinson Defendants had knowledge
about particular Pioneer farming techniques that were unlawful.
10
The Robinson Defendants argue that, due to Plaintiffs’ failure to
do so, Plaintiffs’ negligence claim fails against them as a
matter of law.3
[Id. at 13-14.]
The Robinson Defendants further argue that Plaintiffs’
allegations that the Robinson Defendants have violated Ordinance
No. 808, are likewise insufficient to state a tort claim.
The
Robinson Defendants note that the purpose of the county
permitting ordinance is to protect against sedimentation of water
bodies, and that it requires anyone engaged in certain “‘grading,
grubbing and stockpiling’” activities to obtain a permit before
conducting such activity.
[Mem in Supp. of Robinson Motion at 15
(quoting Ordinance 808).]
The Robinson Defendants argue that the
ordinance does not create any legal duty: Hawai`i courts “have
held unambiguously that ‘a duty of care may be established by
statute if legislative enactment [] lays down requirements of
conduct, and provides expressly or by implication that a
violation shall entail civil liability in tort.’”
[Id. at 15-16
(alteration in Mem. in Supp. of Robinson Motion) (some citations
and internal quotation marks omitted) (quoting Arquette v. State,
128 Haw. 423, 513, 290 P.3d 493 (Haw. 2012)).]
does not contain such provisions.
3
Ordinance 808
The Robinson Defendants
The Robinson Defendants further assert that Plaintiffs’
theory of vicarious lessor liability would, if endorsed, be
“disastrous not only to Hawaii agriculture, but to the State
itself, which leases thousands of farm acres to private farming
operations.” [Mem. in Supp. of Robinson Motion at 14.]
11
further argue that evidence of a purported breach is irrelevant
if there is no duty in the first place.
As such, the Robinson
Defendants argue that Count I fails as a matter of law and should
be dismissed.
[Id. at 16-17.]
As to Count II (failure to warn), the Robinson
Defendants argue that this claim must likewise fail as a matter
of law.
As an initial matter, the Robinson Defendants note that
“there is no general negligence cause of action for ‘failure to
warn.’”
[Id. at 17.]
It is a products liability concept with no
application in the instant case.
[Id.]
The Robinson Defendants
further argue that, regardless, the Court should dismiss Count II
for the same reasons as Count I.
[Mem. in Supp. of Robinson
Motion at 17-18.]
The Robinson Defendants argue that the Court must also
dismiss Count III (negligence per se).
They argue that there is
no independent cause of action for “negligence per se,” but,
rather, that the Hawai`i courts follow the rule that a violation
of a statute may constitute evidence of negligence.
As such, the
Robinson Defendants argue, the third claim is simply a repetition
of the negligence claim in Count I.
Further, the Robinson
Defendants argue, because there is no legal duty, any alleged
violation of the state statutes or the local ordinance is
irrelevant to the issue of liability.
Moreover, the Robinson
Defendants argue that Plaintiffs’ claim based on the alleged
12
violations must fail as a matter of law because neither the
statutes that Plaintiffs invoke nor Ordinance 808 provide a
private right of action.
[Id. at 18-20.]
The Robinson
Defendants therefore argue that the Court must also dismiss Count
III as a matter of law.
As to Count V (trespass), the Robinson Defendants argue
that Plaintiffs have failed to allege any facts that would show
that the Robinson Defendants participated in the alleged entry by
Pioneer onto Plaintiffs’ land.
Rather, the Robinson Defendants
note, the claim is predicated entirely on the “legally defective”
notion that the Robinson Defendants bear responsibility for the
acts of their tenant.
[Id. at 21.]
The Robinson Defendants
therefore argue that the Court must also dismiss Count V for the
reasons set forth supra.
The Robinson Defendants argue that Count VI (nuisance)
must fail as a matter of law as well because they cannot be held
liable for Pioneer’s conduct.
The Robinson Defendants emphasize
that, like the other counts, Count VI fails to allege that the
Robinson Defendants did anything directly to cause dust or
pesticides to reach Plaintiffs’ properties.
[Id.]
The Robinson
Defendants note that the Second Amended Complaint does allege
that the “‘Robinson Entities possessed knowledge of the risk of
migration of pollutants . . . before leasing to Pioneer.’”
[Id.
at 22-23 (alteration and emphasis in Mem. in Supp. of Robinson
13
Motion) (quoting Second Amended Complaint at ¶ 165).]
The
Robinson Defendants emphasize, however, that “[t]he law does not
make a landlord liable if it leases to a tenant knowing there is
a ‘risk’ - or even a ‘manifest possibility’ - that something may
happen[;] [r]ather, the law will impose liability on a landlord
only where it knows the tenant’s operation will be a nuisance.”
[Id. at 23 (emphasis in Mem. in Supp. of Robinson Motion)
(citations omitted).]
The Robinson Defendants further argue that
Plaintiffs’ allegation that the Robinson Defendants failed to
exercise a contractual right to “control” Pioneer’s operations
cannot support a nuisance claim because a landlord does not owe a
duty to third parties to exercise a contractual right of reentry.
[Id.]
The Robinson Defendants therefore argue that Count VI
fails as a matter of law against them.
The Robinson Defendants note that Count VII (negligent
and/or intentional misrepresentation) alleges that: a group of
Waimea residents sent the Waimea Petition to Pioneer in 2000; in
the October 2000 Response Letter, Pioneer stated that it would
take immediate steps to improve its operations to reduce dust;
and Pioneer failed to do so.
[Id. at 24 (citing Second Amended
Complaint at ¶¶ 174-75, 178-80).]
The Robinson Defendants
emphasize that Plaintiffs do not allege that the Waimea Petition
was given to the Robinson Defendants or that the Robinson
Defendants made any representations to Plaintiffs about Pioneer’s
14
farming operations, or about anything at all.
Absent an
allegation that the Robinson Defendants made a material
misrepresentation, Count VII fails as a matter of law.
[Id.]
Finally, as to Count VIII (landlord liability), the
Robinson Defendants first note that this count restates the same
vicarious liability claim alleged in the original complaint (as
Count VII) in Casey, et al. v. Pioneer, et al., CV 12-00655 LEKBMK, which also arises from the effect of Pioneer’s activities on
the GMO Test Fields.
The state court, inter alia, dismissed
Count VII without prejudice prior to removal.4
[Id. at 25.]
The
Robinson Defendants further note that Count VIII alleges that the
Robinson Defendants knew from their own farming operations, which
4
Defendants, who are also the defendants Casey, removed
Casey on the ground that the amended complaint presented a basis
for diversity jurisdiction that did not exist in the original
complaint. Defendants asserted that the Robinson Defendants’
citizenship should not be considered for jurisdictional purposes
because the Casey plaintiffs fraudulently joined them. [Casey,
Notice of Removal of Action (28 U.S.C. Section 1441), filed
12/7/12 (dkt. no. 1), at ¶¶ 1-3, 7-9.] The landlord liability
claim is set forth in Count VIII. [Casey, Notice of Removal,
Exh. C (Amended Complaint) at ¶¶ 188-200.] The claims in the
Casey amended complaint are virtually identical to the claims in
the Second Amended Complaint in the instant case. [Casey, Notice
of Removal at ¶ 4.]
On January 7, 2013, the Casey plaintiffs filed a motion for
remand, arguing that they had viable claims against the Robinson
Defendants and therefore the Robinson Defendants’ citizenship
destroyed diversity. [Casey, (dkt. no. 16).] This Court
ultimately denied the motion for remand, finding that the Casey
plaintiffs had fraudulently joined the Robinson Defendants.
Casey v. Pioneer Hi-Bred Int’l, Inc., Civ. No. 12-00655 LEK-BMK,
2013 WL 1701873, at *7 (D. Hawai`i Apr. 17, 2013). On May 23,
2013, the magistrate judge in Casey consolidated Casey with the
instant case. [Casey, (dkt. no. 66).]
15
are different from Pioneer’s farming operations, that Pioneer’s
farming operations “might have ‘potential’ off-site impacts” and
that, “despite ‘actual knowledge of the risk of drift of
pollutants[,]’ the Robinson Defendants ‘leased the GMO Test
Fields to Pioneer without conducting any due diligence about the
risks of Pioneer’s GMO operation . . . .’”
Amended Complaint at ¶¶ 189, 191).]
[Id. (quoting Second
The Robinson Defendants
argue that, as discussed above, the law does not require a
landlord to try to determine at the time of letting whether a
tenant will properly conduct its operations; as long as the
purpose of the lease is lawful, the landlord is not liable for
the tenant’s improper actions during the lease.
[Id. at 26.]
As
such, the Robinson Defendants seek dismissal of Count VIII.
The Robinson Defendants therefore argue that there is
no basis for Plaintiffs’ claims against them, and they urge the
Court to dismiss all of Pioneer’s claims against them with
prejudice.
II.
[Id. at 27.]
Plaintiffs’ Memorandum in Opposition
In their memorandum in opposition to the Robinson
Motion, Plaintiffs argue that landlord liability also arises when
the landlord learns, after entering into a lease, of the tenant’s
dangerous practices, but does nothing, even though the landlord
has the ability to stop the practices.
Further, Plaintiffs argue
that the Second Amended Complaint alleges, and the evidence will
16
support, that the Robinson Defendants knew of the potential
danger prior to the lease, learned of the actual harm during the
lease, and possessed the ability to stop the harm.
to Robinson Motion at 2.]
[Mem. in Opp.
Thus, Plaintiffs argue that, if the
factual allegations in the Second Amended Complaint are proven,
the Robinson Defendants will be liable for Pioneer’s farming
practices on the GMO Test Fields pursuant to the rule set forth
in Restatement (Second) of Torts § 837.
Plaintiffs argue that
what the Robinson Defendants consented to, knew about, or had
reason to know about, are all questions of fact that cannot be
determined in a motion to dismiss.
Plaintiffs note that the
Second Amended Complaint expressly alleges that: prior to
entering into the lease with Pioneer, the Robinson Entities had
knowledge of the danger from farming near Waimea without
appropriate conservation measures; during the lease, the Robinson
Entities knew about the harm Pioneer was causing; the Robinson
Entities had a duty under local law to eliminate the harmful
conditions; and they had sufficient control to eliminate the
conditions, but did nothing.
[Id. at 9-10.]
Plaintiffs
emphasize that, taking these allegations as true and viewing them
in the light most favorable to Plaintiffs, they have stated a
plausible claim against the Robinson Defendants.
[Id. at 11.]
Plaintiffs argue that, as recognized in Restatement
(Second) of Torts § 837, there are many exceptions to the general
17
rule of landlord non-liability.
[Id. at 12-13.]
Plaintiffs
argue that the Robinson Defendants: violated a safety law, namely
Ordinance 808; “were involved in deciding what steps should be
taken to address dust after the problems finally became too
severe to ignore[;]” and “were aware of the dust problem before
leasing to Pioneer and had actually paid to clean at least one
home in Waimea[;]” and still failed to stop Pioneer’s harmful
practices.
[Mem. in Opp. to Robinson Motion at 13 (citing Second
Amended Complaint at ¶¶ 52, 69).]
Plaintiffs further argue that the evidence already
available supports their allegations that the Robinson
Defendants’ own conduct contributed to the alleged harm, and that
the Robinson Defendants knew about and had the ability to stop
the harm.
Specifically, Plaintiffs point to: (1) the Robinson
Defendants’ control over roads on the leased lands and the fact
that Pioneer and the Robinson Defendants communicated about
efforts to water the roads to mitigate the dust, [id. at 17
(citing Mem. in Opp. to Robinson Motion, Decl. of Kyle Smith
(“Smith Decl.”), Exh. 3 (August 2010 email string between Mark
Takemoto, Gerardo Rojas Garcia, Charles Okamoto, and others));]
(2) the Robinson Defendants’ ability to instruct Pioneer to water
the roads, as evidenced by the testimony of the Robinson
Defendants’ deponent, Charles Okamoto, that he instructed Pioneer
to water the roads, [id. (quoting Smith Decl., Exh. 4 (email
18
string dated July 2010-August 2010 between Charles Okamoto,
Mark Takemoto, and others));] (3) the Robinson Defendants’
participation in conservation measures, including selecting the
type of trees that would be planted, [id. at 18 (citing Smith
Decl., Exh. 5 (10/20/10 email string between Mark Takemoto,
Judith Rivera, and others));] and (4) the Robinson Defendants’
own contribution to the dust problem, as evidenced by Pioneer’s
Waimea Station Manager, Judith Rivera, asking a Pioneer employee
in November 2010 to talk to Gay & Robinson about speeding on the
road on the Property because that leads to dust, and the
Department of Health inspector will be inspecting the premises,
[id. (citing Smith Decl., Exh. 6 (11/10/11 email from
Judith Rivera to Mark Takemoto and others))].
Further,
Plaintiffs argue, the Robinson Defendants failed to conduct
reasonable due diligence before renewing their existing lease and
expanding the GMO Test Fields by more than 1,000 acres in April
2010.
[Id. at 21-22 (citing Second Amended Complaint at ¶ 191).]
As to their other claims, Plaintiffs state that, while
they have pled each of their negligence, failure to warn, and
negligence per se claims as a different count, they could have
pled all three as a single negligence claim.
Plaintiffs,
however, were trying to make the different legal analyses clear
to the Court.
As for the failure to warn claim, Plaintiffs argue
that failure to warn is a recognized concept under negligence
19
law, not merely a products liability claim.
[Id. at 19.]
As for
the negligence per se claim, Plaintiffs acknowledge that
“‘negligence per se’ is an evidentiary doctrine where evidence of
violation of a statute supports a claim for negligence,” but they
state that it is common practice in Hawai`i to plead a separate
negligence per se claim “to give[] notice to the court and
parties of the evidentiary basis for the claim.”
[Id. at 20.]
Plaintiffs argue that the Robinson Defendants’ violations of
Ordinance 808 and other laws are relevant evidence of the
Robinson Defendants’ negligence.
[Id.]
As for their trespass and nuisance claims, Plaintiffs
argue that a landlord can be held liable under the same
circumstances described in connection with the negligence claims.
[Id. at 20-21.]
As to their claims for misrepresentation,
Plaintiffs note that the Second Amended Complaint alleges that
the Robinson Defendants were aware of misrepresentations that
Pioneer made on their behalf to Plaintiffs.
Plaintiffs argue
that they are entitled to conduct discovery on those allegations.
[Id. at 21 (citing Second Amended Complaint at ¶¶ 175-82).]
Plaintiffs therefore ask the Court to deny the Robinson
Motion.
[Id. at 24.]
III. Robinson Reply
In their reply, the Robinson Defendants first emphasize
that this Court has already found that the claims in Casey, which
20
are virtually identical to the claims in the Second Amended
Complaint in this case,5 do not state an actionable claim against
the Robinson Defendants.
[Robinson Reply at 1 (citing Casey v.
Pioneer Hi-Bred Int’l, Inc., Civ. No. 12-00655 LEK-BMK, 2013 WL
1701873, at *7 (D. Hawai`i Apr. 17, 2013)).]
The Robinson
Defendants argue that the Casey plaintiffs made the same
arguments regarding landlord liability that Plaintiffs now raise
in response to the Robinson Motion.
[Id. at 3.]
The Robinson
Defendants note that this Court “exhaustively examined” the Casey
plaintiffs’ arguments, and this Court concluded that the Casey
plaintiffs failed to state an actionable claim against the
Robinson Defendants because the Casey plaintiffs failed to
demonstrate that the Robinson Defendants knew of the alleged
tortious conduct at the time either the 1998 lease or the 2010
lease was signed.
at *6).]
[Id. at 4-5 (quoting Casey, 2013 WL 1701873,
Further, this Court rejected the Casey plaintiffs’
arguments regarding Ordinance 808, the alleged preexisting nature
of the tort, and the Robinson Defendants’ alleged control over
the GMO Test Fields by virtue of the lease terms.
[Id. at 7-8
(quoting Casey, 2013 WL 1701873, at *6-7).]
The Robinson Defendants further argue that Plaintiffs
cannot rely on extrinsic evidence in a motion to dismiss, but,
5
This Court issued the order on the motion for remand in
Casey before the two cases were consolidated.
21
rather, the Court looks only to the sufficiency of the pleadings
on their face.
[Id. at 8-9.]
Even if this Court considers
extrinsic evidence, the Robinson Defendants assert that the
deposition testimony Plaintiffs rely upon is immaterial.
For
example, the Robinson Defendants contend that testimony that
Pioneer leased a water truck from the Robinson Defendants does
not establish that the Robinson Defendants are somehow liable for
torts that were allegedly ongoing.
Further, the Robinson
Defendants argue, evidence that they allegedly knew of the dust
problem at the end of 2010 is irrelevant because the leases were
entered into in 1998 and April 2010.
[Id. at 9-10.]
The Robinson Defendants next argue that this Court
likewise rejected Plaintiffs’ current arguments regarding
control, failure to warn, negligence per se, and landlord
liability when the Casey plaintiffs raised them in connection
with the motion for remand.
[Id. at 11-14.]
Finally, the
Robinson Defendants argue that this Court must dismiss
Plaintiffs’ misrepresentation claims against them because
Plaintiffs state only that Pioneer made the allegedly false
statements.
Plaintiffs have not alleged any facts supporting the
claim against the Robinson Defendants.
[Id. at 13-14.]
The Robinson Defendants therefore ask the Court to
dismiss all of the claims against them.
22
[Id. at 15.]
IV.
Defendants’ Motion
Defendants’ Motion argues that all of Plaintiffs’
claims are untimely because the Second Amended Complaint makes
numerous allegations which demonstrate that Plaintiffs knew of
the basis for their claims for more than a decade before they
filed suit.
[Mem. in Supp. of Defendants’ Motion at 4 (citing
Second Amended Complaint at ¶¶ 17, 41-44, 47-49, 67, 75, 89,
130).]
First, Defendants note that Plaintiffs’ negligence
claims (Counts I through III) are subject to a two-year statute
of limitations pursuant to Haw. Rev. Stat. § 657-7.
7.]
[Id. at 6-
Defendants further note that a claim subject to § 657-7
accrues “‘the moment plaintiff discovers or should have
discovered the negligent act, the damage, and the causal
connection between the former and the latter.’”
[Id. at 7
(quoting Yamaguchi v. Queen’s Med. Ctr., 65 Haw. 84, 90, 648 P.2d
689, 693-94 (1982)).]
Here, Defendants argue, “Plaintiffs’
claims accrued not later than June 2000 when they complained to
Pioneer that its farming practices were impacting them.”
[Id.
(citing Second Amended Complaint at ¶ 42; id., Exh. 5 (Waimea
Petition)).]
Defendants note, however, that Plaintiffs appear to
be asserting continuing torts, because they allege that
Defendants’ acts are of a continuing nature and have continued
for over a decade, and that they have been continuously injured
23
by Defendants’ conduct.
[Id. (citing Second Amended Complaint at
¶¶ 17, 18, 40, 41, 48, 106, 115, 129, 130).]
As such,
Plaintiffs’ claims are saved from being completely time-barred by
the continuing tort doctrine, but their recovery is limited as a
matter of law to the two years preceding the instant action.
Plaintiffs filed the instant action on December 13, 2011,
therefore, their recovery, if any, for their negligence claims is
limited to claims accrued on December 13, 2009 or later.
Defendants argue that the Court should therefore dismiss
Plaintiffs’ negligence claims to the extent they are predicated
on claims accruing before December 13, 2009.
[Id. at 8-9.]
Defendants next argue that Plaintiffs’ strict liability
claim (Count IV), trespass claim (Count V), and nuisance claim
(Count VI) are likewise limited to the two-year statutory period
preceding the instant action.
Like the negligence claims, these
claims accrued when Plaintiffs first became aware that the
challenged activities were causing them harm, but they may seek
recovery for the two-year period before they filed this action
pursuant to the continuing tort doctrine.
As such, Defendants
argue that the Court should dismiss Counts IV, V, and VI to the
extent they are premised on conduct occurring prior to
December 13, 2009.
Similarly, assuming, arguendo that
Plaintiffs’ landlord liability claim (Count VIII) states an
actionable claim, it is also limited to the two years preceding
24
the action pursuant to Haw. Rev. Stat. § 657-7.
[Id. at 9-12.]
Defendants also contend that Plaintiffs’ claim for
misrepresentation (Count VII) is entirely time-barred.
Defendants note that Plaintiffs allege that, as a result of the
alleged misrepresentations, they “‘relied to their detriment by
postponing action against Pioneer[.]’”
[Id. at 13 (alteration
Defendants’) (emphasis omitted) (quoting Second Amended Complaint
at ¶ 183).]
Defendants emphasize that this allegation does not
change the fact that Plaintiffs were immediately aware after the
October 2000 Response Letter that Pioneer failed to take
sufficient steps to mitigate the allegedly tortious condition.
[Id. at 14 (citing Second Amended Complaint at ¶¶ 17, 41-44,
47-49, 67, 75, 89, 130).]
Defendants therefore argue that the
alleged fraudulent misrepresentation claim based on the October
2000 Response Letter accrued in 2000.
Defendants note that Plaintiffs also attempt to make a
misrepresentation claim out of the 2002 Conservation Plan that
Pioneer submitted to the County of Kauai (“the County”); however,
Defendants emphasize that the 2002 Conservation Plan was not
submitted to Plaintiffs.
Defendants further emphasize that there
is no allegation that Plaintiffs ever received a copy of the 2002
Conservation Plan, or that Pioneer ever intended or foresaw that
Plaintiffs might rely upon it.
As such, Defendants argue that
Plaintiffs’ misrepresentation claim based on th 2002 Conservation
25
Plan fails.
[Id.]
Defendants further argue that, even if a
misrepresentation claim based on the 2002 Conservation Plan was
actionable, it accrued in 2002, when Plaintiffs became aware that
Pioneer was not actually mitigating the dust and pesticides from
its farming operations.
Finally, as to Plaintiffs’ claim that
Pioneer stated in the December 2011 Letter that it was following
reasonable agricultural practices in 2010, Defendants argue that
such a vague allegation is insufficient to state a claim for
fraudulent misrepresentation against the Robinson Defendants, and
Plaintiffs have still failed to show detrimental reliance as to
the Robinson Defendants.
[Id. at 15.]
Defendants note that Plaintiffs “attempt to resurrect
their pre-December 2009 claims by alleging fraudulent
concealment.”
[Id. at 16.]
Plaintiffs state that they only
recently discovered Pioneer’s failure to implement the 2002
Conservation Plan and generally accepted agricultural practices,
and Plaintiffs were unaware of Pioneer’s breach of duty until the
County’s March 2011 Notice of Violation.
Amended Complaint at ¶¶ 71, 74).]
[Id. (citing Second
According to Defendants,
Plaintiffs contention is that a claim does not accrue until the
point of actual knowledge.
Defendants emphasize that the Second
Amended Complaint is full of allegations that: Plaintiffs knew of
the allegedly tortious acts for more than a decade (and certainly
before the March 2011 Notice of Violation); they made repeated
26
complaints to Pioneer; and alleged tortious acts continued.
Whether the alleged statutory “violations” are evidence of
negligence or not, Defendants argue, Plaintiffs knew that
Pioneer’s farming activities on the GMO Test Fields were
allegedly causing them damage.
[Id. at 16-17.]
Defendants note that fraudulent concealment can toll
the statute of limitations only where affirmative conduct by one
party would lead the other party to believe that he or she did
not have a claim.
[Id. at 20.]
Defendants argue, however, that
Plaintiffs have not alleged such affirmative conduct.
The 2002
Conservation Plan was neither submitted nor provided to
Plaintiffs and, regardless of statements Pioneer allegedly made
in the October 2000 Response Letter or the December 2011 Letter,
Plaintiffs could see that the allegedly tortious conduct was
continuing.
Indeed, Defendants note, Plaintiffs filed suit four
days after the December 2011 Letter was postmarked, indicating
that they did not believe Pioneer’s statements that it was
following reasonable agricultural practices.
[Id. at 20-21
(citing Second Amended Complaint at ¶¶ 107, 116, 140, 150, 158,
169; Second Amended Complaint, Exh. 12 (December 2011 Letter)).]
In sum, Defendants argue that Plaintiffs have failed to allege
fraudulent concealment that would toll the applicable statutes of
limitations.
[Id. at 22.]
Defendants ask this Court to find that Plaintiffs’
27
misrepresentation count is barred in its entirety, and that
recovery for any damages accrued before December 13, 2009 is
barred for the negligence, strict liability, trespass, nuisance,
and landlord liability claims.
V.
[Id. at 22-23.]
Plaintiffs’ Memorandum in Opposition
In their memorandum in opposition to Defendants’
Motion, Plaintiffs argue that Defendants’ Motion misconstrues the
Second Amended Complaint and raises questions of fact
inappropriate for a motion to dismiss.
Plaintiffs first argue that their negligence claims did
not accrue in June 2000 because Plaintiffs did not discover the
negligent conduct and its connection to the damage until 2011.
Specifically, Plaintiffs argue that the Waimea Petition in June
2000 does not establish the accrual of their negligence claims.
Plaintiffs note that the two-year statute of limitations in Haw.
Rev. Stat. § 657-7 begins to run when a plaintiff knows of, or
should have discovered, (1) the negligent act, (2) the damage,
and (3) the causal connection between the two.
[Mem. in Opp. to
Defendants’ Motion at 5 (citing Yamaguchi v. Queen’s Medical
Center, 65 Haw. 84, 90 (1982)).]
Plaintiffs argue that the
Waimea Petition was merely a statement of the community’s concern
about the farming activities of Pioneer and other local farmers
and, at best, only meets the knowledge of the damage element of
the three-pronged requirement.
Plaintiffs argue that the Waimea
28
Petition does not evince their knowledge of specific negligent
conduct, or that any such conduct was causing harm.
6.]
[Id. at 5-
Plaintiffs emphasize that the 2000 Waimea Petition merely
stated their concern that Defendants were failing to prevent soil
erosion and thereby allowing dust to blow into the community.
The petition does not suggest that Plaintiffs knew of Defendants’
negligent conduct or the causal connection between the conduct
and their injury.
[Id. at 7-8.]
Plaintiffs assert the Hawai`i Right to Farm Act and the
Robinson Defendants’ knowledge that Pioneer was farming do not
constitute specific knowledge of negligence.
[Id. at 8-9.]
Plaintiffs argue:
Defendants cannot have it both ways. If the
continuous off-site impact of dust and pesticides
to Waimea for more than [a] decade is prima facie
evidence of negligence sufficient to trigger the
statute of limitations, then the Right to Farm act
[sic] is no longer at issue because dust and
pesticides in the air would itself be evidence of
a continuing tort. On the other hand, if the
Hawaii Right to [Farm] Act applies, then evidence
of continuous dust and pesticides would [be]
“presumptively not tortious,” which means
Plaintiffs’ causes of action could not begin to
run until Plaintiffs later discovered Defendants’
negligent conduct as alleged in the complaint.
[Id. at 9.]
Plaintiffs further argue that whether they knew or
should have known of Defendants’ negligent conduct and the causal
connection is a question of fact.
Plaintiffs argue that they
only discovered Defendants’ negligent conduct after years of
29
property damage, when they found out about the violations of
Ordinance 808, Pioneer’s failure to follow through on the
promises in its October 2000 Response Letter, and Defendants’
failure to follow their 2002 Conservation Plan.
Further,
Plaintiffs allege that Defendants made specific
misrepresentations about their practices.
Plaintiffs therefore
argue that the issue of whether Defendants exercised reasonable
diligence is a question of fact for the jury.
[Id. at 9-12.]
Plaintiffs contend that their strict liability, trespass,
nuisance, and landlord liability claims survive for the same
reasons.
[Id. at 12-15.]
Plaintiffs further argue that they only recently
discovered their claims for misrepresentation, and therefore
those claims are not time-barred.
Specifically, Plaintiffs argue
that the issue of whether they had actual knowledge of Pioneer’s
misrepresentations is a question of fact.
Further, Plaintiffs
contend that Defendants’ argument that Plaintiffs were aware
immediately after the October 2000 Response Letter that Pioneer
was not taking the steps it promised to take is unsupported by
the allegations in the Second Amended Complaint.
[Id. at 15-17
(quoting Second Amended Complaint at ¶¶ 17, 41-44, 47-49, 67, 75,
89, 130).]
Plaintiffs argue that their allegations regarding the
ongoing nature of the drift of dust and pesticides from the GMO
Test Fields do not confirm Plaintiffs’ knowledge that “Pioneer
30
had broken its commitments to them or the County of Kauai.”
[Id.
at 17.]
As to Defendants’ argument that their alleged
misrepresentations to the County in their 2002 Conservation Plan
are not actionable because the plan was not submitted to
Plaintiffs, Plaintiffs argue that Restatement (Second) Torts
§ 311, contains a definition of negligent misrepresentation that
contemplates harm to the property of third parties caused by a
party’s negligent misrepresentation.
Plaintiffs assert that
Pioneer, on its own behalf and on behalf of the Robinson
Defendants, made false representations (that it would implement
its 2002 Conservation Plan) to the County, and that, “[b]ecause
of these representations, the County exempted Pioneer’s Waimea
Research Center from oversight that was expressly intended to
‘safeguard the public health, safety and welfare’ and ‘to protect
property’ . . . .”
[Id. at 18-19.]
Restatement (Second) of
Torts § 311 recognizes a claim against anyone who gives
information to a third party when he knows, or should know, that
the accuracy of the information may affect the safety of others.
As such, Plaintiffs argue, they have alleged viable claims based
upon Defendants’ misrepresentations to the County.
[Id. at 19.]
Plaintiffs next argue that Defendants’ remaining
arguments all address questions of fact and misconstrue the
allegations in the Second Amended Complaint.
31
Plaintiffs
emphasize that they did not merely discover Defendants’ violation
of Ordinance 808 in 2011, but they also discovered underlying
facts demonstrating Defendants’ failure to follow generally
accepted agricultural and management practices.
As such,
Plaintiffs argue, they were not aware of the harm, the underlying
tortious conduct, or the causal connection prior to 2011.
at 20-22.]
[Id.
Plaintiffs further argue that the October 2000
Response Letter and the December 2011 Letter are relevant false
representations because they were attempts to convince Plaintiffs
that Defendants were taking steps to prevent dust and to follow
reasonable agricultural practices.
[Id. at 22-25.]
Further,
Plaintiffs assert that Pioneer knew Plaintiffs were considering
litigation and sent the December 2011 Letter in an attempt to
forestall the filing of this suit.
[Id. at 26.]
Finally, Plaintiffs argue that Defendants’ contention
that they unduly delayed filing their claims in 2011 for more
than nine months is unfounded: Plaintiffs argue that they engaged
in good faith discussions with Pioneer before a mediator in 2011
prior to filing suit in an effort to have Plaintiffs’ concerns
addressed while still avoiding litigation.
[Id. at 27.]
Plaintiffs therefore ask the Court to deny Defendants’
Motion.
[Id. at 28.]
32
VI.
Defendants’ Reply
In their reply, Defendants note that, contrary to
Plaintiffs’ arguments that they did not “discover” their claims
until 2011, Plaintiffs allege in their Second Amended Complaint
that Defendants tortiously interfered with their community by
causing the migration of dust and pesticides from the GMO Test
Fields onto their properties, causing continuous property damage,
since at least June 2000.
Defendants assert that Plaintiffs
cannot avoid dismissal of stale claims by denying or misstating
their own factual allegations; the allegations in the Second
Amended Complaint are binding admissions.
3.]
[Defendants’ Reply at
Defendants emphasize that they are not arguing that
Plaintiffs’ claims (other than the misrepresentation claims) are
completely barred, but only that, under the continuing tort
doctrine, the actionable time period for those claims is limited
to the two-year statutory period before commencement of the
action on December 13, 2011 for the Aana plaintiffs and on
May 23, 2012 for the Casey plaintiffs.
[Id. at 1-3.]
Defendants reiterate their argument that Plaintiffs’
negligence, strict liability, nuisance, trespass, and vicarious
liability claims accrued no later than June 2000.
Defendants
emphasize that Plaintiffs allege repeatedly in the Second Amended
Complaint that they knew as early as June 2000 that dust and
pesticides generated by Pioneer’s farming activities migrated to
33
their properties causing damage.
in June 2000.
As such, their claims accrued
[Id. at 4-5 (citing Second Amended Complaint at ¶¶
17, 41-44, 47-49, 89; Second Amended Complaint, Exh. 5 (Waimea
Petition)).]
Defendants further argue that the express
allegations in the Second Amended Complaint contradict
Plaintiffs’ arguments that the Waimea Petition did not
demonstrate actual knowledge in 2000 that Pioneer’s activities
were causing dust damage to their properties.
[Id. at 5-6.]
Defendants further argue that Plaintiffs’ reliance on a
purported requirement of knowledge of the “specific negligent
conduct” is inconsistent with controlling law and Plaintiffs’ own
factual allegations.
Rather, Defendants argue that, as soon as
Plaintiffs knew Pioneer’s farming damaged their properties and
interfered with their right to use and enjoy their properties,
they were on notice of their claims.
[Id. at 6.]
Defendants note that Plaintiffs argue that Defendants’
reliance on the Hawai`i Right to Farm Act proves that Plaintiffs’
claims did not accrue until Plaintiffs knew of Defendants’
alleged failure to follow “generally accepted agricultural and
management practices.”
Defendants argue, however, that claim
accrual requires only that Plaintiffs knew of potentially
actionable conduct, the damage to their properties, and the
causal connection between the two.
Here, Defendants argue,
Plaintiffs have clearly alleged that Pioneer’s farming began
34
damaging them in 2000.
Plaintiffs did not need to know whether
or not that conduct was negligent, a nuisance, a trespass, or
purported strict liability for Plaintiffs to have sufficient
notice of their claims for accrual.
Defendants emphasize that
Plaintiffs do not dispute that they have alleged continuing
tortious activity, nor do they dispute that Hawai`i law limits
their recovery to damages accruing within the statutory period
before the action.
[Id. at 7-9.]
Defendants argues that the issue of when Plaintiffs
discovered, or should have discovered, the alleged torts is not a
question of fact; the issue of timeliness is appropriately
addressed at the pleading stage as a matter of law.
Defendants
emphasize that it is well-settled that, in ruling on a motion to
dismiss, the Court need not consider arguments and legal
conclusions that are inconsistent with the facts alleged in the
pleading.
[Id. at 9-10.]
Defendants note that Plaintiffs do not assert a
separate claim for violation of Ordinance 808 and, therefore, the
timing of Plaintiffs’ discovery of that violation is immaterial.
Further, Defendants recognize that the continuing tort doctrine
applies, and they acknowledge that any claims alleging tortious
conduct occurring in 2011 are timely.
If Plaintiffs are arguing
that none of their claim accrued before 2011, Defendants wonder
why they oppose Defendants’ Motion at all.
35
[Id. at 10-11.]
Defendants reiterate that Plaintiffs’ misrepresentation
claims are not saved by the continuing tort doctrine and are
therefore entirely time-barred.
Defendants note that the
misrepresentation claims are based on allegedly false
representations that Pioneer made in the October 2000 Response
Letter, the 2002 Conservation Plan, and the December 2011 Letter.
[Id. at 12 (citing Second Amended Complaint at ¶¶ 174-78).]
Defendants note that Plaintiffs did not file suit until 2011 and,
as such, the misrepresentation claims based on the 2000 and 2002
communications are clearly barred by the applicable six-year
limitations period.
Defendants argue that Plaintiffs do not
address the December 2011 Letter in their memorandum in
opposition to Defendants’ Motion and, therefore, Plaintiffs
concede that it is not an actionable misrepresentation.6
[Id.]
Finally, Defendants argue that Plaintiffs’ submission
of extrinsic evidence in their memorandum in opposition is
improper, and this Court must disregarded Plaintiffs’ exhibits.
Even if the Court considers the extrinsic evidence, the
deposition testimony Plaintiffs rely upon does not change the
analysis of the statute of limitations issue.
n.5.]
[Id. at 13-14 &
Defendants further assert that Plaintiffs’ arguments
regarding pre-suit mediation are both improper and immaterial.
6
Defendants note that Plaintiffs filed suit in December
2011 and it is therefore unclear how Plaintiffs relied to their
detriment on the December 2011 Letter. [Id. at 12 n.4.]
36
Had mediation been responsible for delaying Plaintiffs’ filing
suit, the parties would have contemplated entering into a tolling
agreement; however, they never did so.
[Id. at 15-16.]
In sum, Defendants argue that Plaintiffs’ negligence,
strict liability, nuisance, trespass, and landlord liability
claims are all continuing torts for which the actionable time
period is limited to two years before the original complaint was
filed on December 13, 2011 for the Aana plaintiffs and May 23,
2010 for the Casey plaintiffs.
Further, Plaintiffs’
misrepresentation claims are time-barred because Plaintiffs were
immediately aware that Pioneer did not take the steps described
in its October 2000 Response Letter, and Plaintiffs have alleged
no other actionable misrepresentations.
Defendants therefore
urge the Court to grant Defendants’ Motion.
[Id. at 17.]
STANDARD
Federal Rule of Civil Procedure 12(b)(6) permits a
motion to dismiss for failure to state a claim upon which relief
can be granted.
“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007))).
“The
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”
37
Id.
Accordingly, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”
Id. (citing Twombly, 550 U.S. at 555).
Rather, “[a]
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Id.
(citing Twombly, 550 U.S. at 556).
“Dismissal without leave to amend is improper unless it
is clear that the complaint could not be saved by any amendment.”
Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009)
(citation and quotation marks omitted).
DISCUSSION
I.
Count III and Count VIII
At the outset, this Court notes that Hawai`i law does
not recognize a negligence per se cause of action for the
violation of state or county law.
The Hawai`i Supreme Court has
stated:
In tort law, noncompliance with an
established statutory standard is not necessarily
conclusive on the issue of negligence, Pickering
v. State, 57 Haw. 405, 408, 557 P.2d 125, 127
(1976), but is merely evidence of negligence,
Michel v. Valdastri, Ltd., 59 Haw. 53, 575 P.2d
1299 (1978). Under tort law the Employee driving
his vehicle over a solid line to pass another
vehicle on a highway would be a violation of the
traffic code, but without more, such a passing
would not amount to negligence per se. . . .
Camara v. Agsalud, 67 Haw. 212, 218, 685 P.2d 794, 798 (1984).
38
see also Medeiros v. Haw. Dep’t of Labor & Indus. Relations, 108
Hawai`i 258, 276, 118 P.3d 1201, 1219 (2005) (Levinson, J.,
dissenting) (quoting Camara, 67 Haw. at 218, 685 P.2d at 798);
Ritchie v. Wahiawa Gen. Hosp., 597 F. Supp. 2d 1100, 1107 n.10
(D. Hawai`i 2009) (citing Medeiros v. Haw. Dept. of Labor &
Indus. Relations, 108 Hawai`i 258, 276, 118 P.3d 1201, 1219
(2005)).
Thus, to the extent that Count III alleges a negligence
per se claim distinct from Plaintiffs’ general negligence claim,
Count III fails as a matter of law.
Even if the Court construes Count III as alleging
claims directly under the Hawai`i Pesticides Law, the Hawai`i Air
Pollution Control Act, and Kauai Ordinance 808, [Second Amended
Complaint at ¶¶ 27-28,] Count III would still fail as a matter of
law.
The Hawai`i Pesticides Law and the Hawaii Air Pollution
Control Act do not create a private right of action to enforce
those statutes.
See Haw. Rev. Stat. § 149A-33 (providing the
Department of Agriculture “the authority to carry out and
effectuate the purpose of th[e] [Hawai`i Pesticides Law] by
rules”); Haw. Rev. Stat. § 342B-42 (providing the director of the
Department of Health the right to enforce the Hawaii Air
Pollution Control Act).
Similarly, Ordinance 808 does not create
a private right of action for its violation.
1701873, at *7.
39
See Casey, 2013 WL
This Court therefore GRANTS the Robinson Motion and
Defendants’ Motion as to Count III and DISMISSES Count III in its
entirety.
Insofar as this Court finds that the defects in Count
III cannot be cured by amendment, see Harris, 573 F.3d at 737,
the dismissal is WITH PREJUDICE.
This Court, however, emphasizes
that Plaintiffs may use evidence of the alleged violations of the
Hawai`i Pesticides Law, the Hawai`i Air Pollution Control Act,
and Ordinance 808 to support their remaining negligence claims.
Count VIII is titled “Landlord Liability for Acts of
Tenant[.]”
[Second Amended Complaint at pg. 36.]
The Court
FINDS that Count VIII does not state an affirmative claim for
relief.
Rather, Count VIII describes a legal theory by which
Plaintiffs assert that the Robinson Defendants are responsible
for Pioneer’s actions and omissions.
To the extent Plaintiffs
attempt to assert a separate cause of action in Count VIII, the
claim fails as a matter of law, and the defects in Count VIII
cannot be saved by amendment.
This Court therefore GRANTS the
Robinson Motion and Defendants’ Motion as to Count VIII and
DISMISSES Count VIII WITH PREJUDICE.
This Court, however,
emphasizes that Plaintiffs may rely on the legal arguments
described in Count VIII to allege the Robinson Defendants’
liability for Plaintiffs’ remaining claims.
40
II.
Robinson Motion
A.
Counts I, II, V, and VI
In the Robinson Motion, the Robinson Defendants seek
dismissal of Count I (negligence), Count II (failure to warn),
Count V (trespass), and Count VI (nuisance) on the grounds that
as a landlord, they cannot be held liable for the alleged
tortious acts of Pioneer, their tenant.
The Court agrees.
In Casey v. Pioneer Hi Bred International, Inc., this
Court stated,
As a general rule, a lessor is not liable for the
tortious conduct of its lessee. See Mitchell [v.
United States, Civ. No. 11–00088 HG–KSC], 2011 WL
4048986, at *4 [(D. Hawai`i Sept. 12, 2011)]
(stating that, generally, a landowner is not
liable for injuries occurring on the land once the
lessor takes possession, and that landowner
liability “turns on ‘the degree of control’ the
landowner exercises over the land.”). The
Restatement (Second) of Torts, Section 837
provides that a lessor of land is subject to
liability for a nuisance caused by an activity
carried out upon its land only if, at the time of
the lease, the lessor (1) consents to the activity
or knows or has reason to know it will be carried
on, and (2) knows or should know that it will
necessarily involve or is already causing a
nuisance. Restatement (Second) of Torts:
Activities After Transfer of Land § 837 (1979);
see also Meloy v. City of Santa Monica, 12 P.2d
1072, 1074 (Cal. Ct. App. 1932) (finding a
landlord not responsible for a nuisance caused by
lessee where land “leased for a lawful and proper
purpose, when there is no nuisance or illegal
structure upon it at the time of the letting”);
City of L.A. v. Star Sand & Gravel Co., 12 P.2d 69
(Cal. Ct. App. 1932) (same).
Civil No. 12-00655 LEK-BMK, 2013 WL 1701873 at *6 (D. Hawai`i
41
Apr. 17, 2013).7
At the time they entered into the lease, the Robinson
Defendants may have known that Pioneer would be using the
property to farm, however, as stated in the Hawai`i Right to Farm
Act, farming is not inherently a “nuisance”.
The Hawai`i Right
to Farm Act states as its “findings and purpose”:
The legislature finds that when nonagricultural
land uses extend into agricultural areas, farming
operations often become the subject of nuisance
lawsuits that may result in the premature removal
of lands from agricultural use and may discourage
future investments in agriculture. The
legislature also finds that under the Hawaii State
Planning Act, it is a declared policy of this
State to “foster attitudes and activities
conducive to maintaining agriculture as a major
sector of Hawaii’s economy.” Accordingly, it is
the purpose of this chapter to reduce the loss to
the State of its agricultural resources by
limiting the circumstances under which farming
operations may be deemed to be a nuisance.
Haw. Rev. Stat. § 165-1.
The Act also states that, “[n]o court
. . . shall declare any farming operation a nuisance for any
reason if the farming operation has been conducted in a manner
consistent with generally accepted agricultural and management
practices.
There shall be a rebuttable presumption that a
farming operation does not constitute a nuisance.”
7
Haw. Rev.
This Court recognizes that there is no Hawai`i case law
applying Restatement (Second) of Torts § 837. As this Court has
previously noted, however, Hawai`i courts often look to
California courts for guidance when there is no Hawai`i precedent
regarding a Restatement provision. See, e.g., Wood v. Greenberry
Fin. Servs., Inc., 907 F. Supp. 2d 1165, 1182 (D. Hawai`i 2012)
(discussing Restatement (Second) of Torts § 876(b), (c)).
42
Stat. § 165-4.
Further, Haw. Rev. Stat. § 165-2 states, in
pertinent part:
“Nuisance” as used in this chapter, includes all
claims that meet the requirements of this
definition regardless of whether a complainant
designates such claims as brought in nuisance,
negligence, trespass, or any other area of law or
equity; provided that nuisance as used in this
chapter does not include an alleged nuisance that
involves water pollution or flooding.
Thus, in order to establish their negligence, trespass, or common
law nuisance claims, Plaintiffs will have to prove that Pioneer
failed to operate the GMO Test Fields “in a manner consistent
with generally accepted agricultural and management practices.”
In order to establish the Robinson Defendants’ liability for
those claims, Plaintiffs will have to prove that, when they
entered into the lease with Pioneer, the Robinson Defendants:
(1) consented to Pioneer’s unlawful farming practices or knew, or
had reason to know, Pioneer would carry on unlawful practices;
and (2) knew or should have known that Pioneer’s activities would
necessarily involve or were already causing a nuisance as defined
under the Hawai`i Right to Farm Act.
Plaintiffs argue that, even if the Court finds that, at
the time of letting, the Robinson Defendants did not know Pioneer
would use the property in an unlawful manner, landlord liability
may still arise if the Robinson Defendants learned of the
unlawful conduct after entering into the lease with Pioneer, and
the Robinson Defendants had the ability to stop the conduct but
43
did nothing.
[Mem. in Opp. to Robinson Motion at 2.]
Even
assuming, arguendo, that such a claim is actionable,8 the Court
finds that Plaintiffs have failed to allege facts that, if
proven, would demonstrate that the Robinson Defendants were
aware, or should have been aware, of the complaints regarding
Pioneer’s farming operations.
The Court therefore FINDS that Plaintiffs have not pled
sufficient factual allegations to support their claims of
negligence, failure to warn, trespass, and nuisance (Counts I,
II, V, and VI) against the Robinson Defendants.
This Court,
however, finds that it is arguably possible for Plaintiffs to
cure the defects in these claims against the Robinson Defendants
by amendment.
See Harris, 573 F.3d at 737.
The Robinson Motion
is therefore GRANTED IN PART AND DENIED IN PART as to the
portions of Counts I, II, V, and VI against the Robinson
Defendants.
B.
Those claims are DISMISSED WITHOUT PREJUDICE.
Count VII
Count VII, Plaintiffs’ negligent misrepresentation and
intentional misrepresentation claim, is based on Defendants’
alleged failure to carry out the representations made in the
October 2000 Response Letter and the 2002 Conservation Plan, as
well as on the allegedly false representation in the December
8
Restatement (Second) of Torts § 837(2) states: “A vendor
of land is not liable for a nuisance caused solely by an activity
carried on upon the land after he has transferred it.”
44
2011 Letter that Pioneer had been following reasonable
agricultural practices.
179.]
[Second Amended Complaint at ¶¶ 174-75,
The Robinson Defendants argue that Count VII fails against
them because Pioneer was the party that made these alleged
misrepresentations, and there is no allegation that the Robinson
Defendants made any material misrepresentation regarding the GMO
Test Fields or even received the 2000 Waimea Petition.
[Mem. in
Supp. of Robinson Motion at 24.]
This Court has identified the following elements of an
intentional or fraudulent misrepresentation claim: “‘(1) false
representations made by the defendant; (2) with knowledge of
their falsity (or without knowledge of their truth or falsity);
(3) in contemplation of plaintiff’s reliance upon them; and (4)
plaintiff’s detrimental reliance.’”
Strojny v. PermaDri, Inc.,
CIV. 11-00131 LEK-KSC, 2012 WL 4718099, at *18 (D. Haw. Sept. 30,
2012) (quoting Miyashiro v. Roehrig, Roehrig, Wilson & Hara, 122
Hawai`i 461, 482–83, 228 P.3d 341, 362–63 (Ct. App. 2010) (citing
Hawaii’s Thousand Friends v. Anderson, 70 Haw. 276, 286, 768 P.2d
1293, 1301 (1989))).
The elements of a negligent misrepresentation
claim are: “‘(1) false information [is] supplied
as a result of the failure to exercise reasonable
care or competence in communicating the
information; (2) the person for whose benefit the
information is supplied suffered the loss; and (3)
the recipient relies upon the misrepresentation.’”
Id. at *19 (some citations omitted) (quoting Zanakis–Pico v.
45
Cutter Dodge, Inc., 98 Hawai`i 309, 321, 47 P.3d 1222, 1234
(2002)).
The Court agrees with the Robinson Defendants and finds
that Count VII does not allege facts that, if proven, would
establish either the elements of an intentional or the elements
of a negligent misrepresentation claim.
Pioneer, not the
Robinson Defendants, made the representations in the October 2000
Response Letter, the 2002 Conservation Plan, and the December
2011 Letter.
Plaintiffs do not allege either that the Robinson
Defendants knew Pioneer would make these representations or that
the Robinson Defendants contemplated that Plaintiffs would
detrimentally rely upon these representations.
As to Plaintiffs’
negligent misrepresentation claim, as set forth supra section
II.A., Plaintiffs have failed to demonstrate that the Robinson
Defendants had a duty as a landlord to prevent or correct the
allegedly negligent misrepresentations of Pioneer, their tenant.
Further, even if the Court found that the Robinson Defendants had
such a duty, Plaintiffs have not sufficiently alleged that they
relied upon the misrepresentations.
The Second Amended Complaint
contains numerous allegations demonstrating that, since 2000,
Plaintiffs were aware of the persistent drift of fugitive dusts
and pesticides into the Waimea community, as well as the source
of the dusts and pesticides.
[Second Amended Complaint at ¶¶ 41-
48.]
46
The Court therefore FINDS that Count VII does not
allege the necessary facts to state either an
intentional/fraudulent misrepresentation claim or a negligent
misrepresentation claim against the Robinson Defendants.
This
Court, however, finds that it is arguably possible for Plaintiffs
to cure the defects in Count VII by amendment.
F.3d at 737.
See Harris, 573
The Robinson Motion is therefore GRANTED IN PART
AND DENIED IN PART as to Count VII, which is DISMISSED WITHOUT
PREJUDICE as to the Robinson Defendants.
III. Defendants’ Motion
The crux of Defendants’ Motion is that significant
portions of the claims in the Second Amended Complaint are timebarred.
A.
Applicable Statute of Limitations for Negligence Claims
“In diversity actions, federal courts generally apply
state statutes related to the commencement and tolling of
statutes of limitations.”
Heiser v. Ass’n of Apartment Owners of
Polo Beach Club, 848 F. Supp. 1482, 1484 (D. Hawai`i 1983)
(citing Walker v. Armco Steel Corp., 446 U.S. 740, 745-46, 100 S.
Ct. 1978, 1982-83, 64 L. Ed. 2d 659 (1980)).
Negligence claims
in Hawai`i are subject to the two-year statute of limitations set
forth in Haw. Rev. Stat. § 657-7.
See, e.g. Ass’n of Apartment
Owners of Newtown Meadows ex rel. its Bd. of Dirs. v. Venture 15,
Inc., 115 Hawai`i 232, 276-77, 167 P.3d 225, 269-70 (2007).
47
Pursuant to Hawaii’s “discovery rule,” a cause of
action does not “accrue,” and the statute of limitations in
§ 657-7 does not begin to run, until the plaintiff knew or should
have known of the defendant’s negligence.
Hays v. City & County
of Honolulu, 81 Hawai`i 391, 393, 917 P.2d 718, 720 (1996).
As
such, a claim accrues “the moment plaintiff discovers or should
have discovered the negligent act, the damage, and the causal
connection between the former and the latter.”
Yamaguchi v.
Queen’s Med. Ctr., 65 Haw. 84, 90, 648 P.2d 689, 693-94 (1982)
(citation omitted); see also Hays, 81 Hawai`i at 396, 917 P.2d at
723 (“[Haw. Rev. Stat.] § 657-7.3’s two-year limitation commences
to run when plaintiff discovers, or through the use of reasonable
diligence should have discovered, (1) the damage; (2) the
violation of the duty; and (3) the causal connection between the
violation of the duty and the damage.” (quoting Jacoby v. Kaiser
Found. Hosp., 1 Haw. App. 519, 525, 622 P.2d 613, 617 (1981))).
Here, Defendants argue that Plaintiffs’ claims, with
the exception of Count VII, accrued no later than June 2000, when
they submitted their complaint about the impact of Pioneer’s
farming practices.
[Mem. in Supp. of Defendants’ Motion at 7
(citing Second Amended Complaint at ¶ 42; id., Exh. 5).]
Under
Haw. Rev. Stat. § 657-7, the failure to discover a specific and
actionable legal duty does not delay the start of the two-year
limitations period.
Hays, 81 Hawai`i at 398, 917 P.2d at 725.
48
The Hawai`i Supreme Court, however, has applied the discovery
rule and tolled the statute of limitations in cases where the
plaintiff’s lack of knowledge stemmed from:
(1) [plaintiff’s] inability to ascertain the
necessary factual foundation upon which to base
the elements of his negligence claim, such as
lacking specialized medical knowledge, see, e.g.,
Yoshizaki [v. Hilo Hosp.], 50 Haw. [150,] 150, 433
P.2d [220,] 221 [(1967)] (plaintiff unaware that
first physician’s diagnosis incorrect until
receipt of treatment from second physician for
condition stemming from treatment pursuant to
first diagnosis); Jacoby, 1 Haw. App. at 520-21,
622 P.2d at 614-15 (plaintiff unaware that second
ailment causally related to treatment for first
condition until she sought treatment for second
ailment); (2) an alleged concealment of facts
regarding the cause of his injuries, see, e.g.,
Yamaguchi, 65 Haw. at 87, 648 P.2d at 691
(“Appellant’s principal contention on appeal is
that the statute of limitations was tolled by
appellees’ (essentially the hospital’s) failure to
disclose information of alleged acts of negligence
constituting the basis of his claim, or at least
that an issue of material fact concerning
appellees’ concealment of incriminating
information remained, precluding summary
judgment.”); or (3) inherent difficulties in the
nature of the injury or the causal relationship
between the negligent act and the injury, such as
technological, scientific, or medical limitations.
See, e.g., In re Hawaii Federal Asbestos Cases,
734 F. Supp. 1563, 1566 (D. Hawai`i 1990) (“Many
. . . claims of injury [from asbestos exposure]
are based on subjective declarations of shortness
of breath, tiredness and general lassitude.
X-rays may or may not show the presence of
asbestos-induced changes in the lung. Even many
forms of pulmonary analysis are not definitive in
measuring impairment. . . . All of the above
indicates a need for some form of easily
verifiable standard for determining whether an
‘injury’ exists and when such injury warrants an
award of compensation.” (Footnotes
omitted.)). . . . As Yamaguchi provides, the
49
discovery rule prevents the running of the statute
of limitations “until [the] plaintiff [has]
knowledge of those facts which are necessary for
an actionable claim before the statute begins to
run.” It does not delay the start of the
limitations period until the plaintiff learns of
the legal duty upon which he or she may base a
cause of action.
Id. at 397-98, 917 P.2d at 724-25 (some alterations in Hays).
The Hawai`i Supreme Court also recognized that:
A discovery rule which conditions accrual of an
action on a plaintiff’s specific knowledge of
another’s negligence means, in many cases, that an
action will not accrue until a party walk’s [sic]
into a lawyer’s office and is advised that he [or
she] has an actionable claim. This should not be
the law. A party must exercise reasonable
diligence in pursuing a claim. If a plaintiff
fails to exercise such diligence in a timely
manner, the cause of action should be barred by
the statute of limitations.
Id. at 398, 917 P.2d at 725 (alterations in Hays) (quoting In re
Hawaii Federal Asbestos Cases, 854 F. Supp. 702, 708 (D. Hawai`i
1994)).
In the instant case, the 2000 Waimea Petition
demonstrates Plaintiffs’ knowledge that Pioneer was using
chemicals that, along with dust from Pioneer’s operations, were
allegedly drifting onto Plaintiffs’ properties.
The Waimea
Petition stated that, the Waimea residents “believe that current
provisions for reducing dust pollution are not being adequately
implemented, and that local agricultural businesses are not
complying with existing regulations intended to restrict dust
pollution.”
[Second Amended Complaint, Exh. 5 at 1.]
50
The Waimea
residents also stated, “[w]e are concerned that this dust may
contain other pollutants, such as fertilizers and/or pesticides
that are used in commercial agriculture, and that long-term
health consequences of continuing present behavior may be
severe.”
[Id.]
Plaintiffs cannot take advantage of the discovery
rule’s tolling of the statute of limitations because, as shown by
the Waimea Petition, Plaintiffs clearly had knowledge that
Pioneer’s actions were affecting the community.
Even assuming,
arguendo, that Plaintiffs lacked knowledge of an actionable
claim, Plaintiffs cannot take advantage of the discovery rule’s
exception because the facts in this case are unlike the type of
circumstances in which the Hawai`i state courts have allowed the
exception.
Hawai`i state courts and federal courts applying
Hawai`i law have generally allowed the exception in claims where:
the plaintiff is faced with technological, scientific, or medical
limitations; the plaintiff is unable to ascertain the necessary
factual foundation; or the defendants are involved in concealing
facts regarding the cause of the injuries.
397-98, 917 P.2d at 724-25.
Hays, 81 Hawai`i at
In the instant case, for more than a
decade, Plaintiffs witnessed the allegedly tortious acts and
Pioneer’s failure to mitigate the harm.
Plaintiffs also cannot
claim that Pioneer’s October 2000 Response Letter or the December
2011 Letter concealed facts regarding the cause of the injuries.
51
This Court agrees with Defendants that the allegations in the
Second Amended Complaint show that Plaintiffs were aware
immediately after both responses that Pioneer’s farming practices
were the cause of the migration of dust and pesticides and that
Pioneer had failed to take sufficient steps to mitigate the
allegedly tortious condition.
See Mem in Supp. of Defendants’
Motion at 14 (citing Second Amended Complaint at ¶¶ 17, 41-44,
47-49, 67, 75, 89, 130).
Plaintiffs also argue that dust and pesticides should
be treated differently when determining whether the statute of
limitations bar the claims.
Unlike dust, pesticides are
intangible and not readily detectable.
Plaintiffs therefore
argue that, as long as Plaintiffs exercised reasonable diligence,
the statute of limitations for claims alleging harm from
pesticides should not accrue until 2011, when Plaintiffs
discovered Defendants’ negligent conduct and its connection to
the damage to Plaintiffs’ properties.
This Court, however, finds
that addressing reasonable diligence is unnecessary because the
2000 Waimea Petition explicitly referenced pesticides and
fertilizers as possible harmful agents in the air.
Thus, this
Court concludes that, whether the alleged breaching entity is
dust or pesticides,
Plaintiffs’ negligence claims accrued in
2000.
52
B.
Other Claims Subject to Haw. Rev. Stat. § 657-7
As to Count IV (strict liability), Hawai`i law
recognizes the doctrine of strict liability for ultra-hazardous
activities.
See, e.g., Akee v. Dow Chem. Co., 293 F. Supp. 2d
1140, 1143 (D. Hawai`i 2002) (citing Beckstrom v. Hawaiian
Dredging Co., 42 Haw. 353 (1958)).
Assuming, for purposes of
Defendants’ Motion, that Plaintiffs can state a plausible strict
liability claim under the facts of this case,9 the two-year
statute of limitations period in § 657-7 also applies to Count
IV.
See, e.g., In re Haw. Fed. Asbestos Cases, 854 F. Supp. 702,
707 (D. Hawai`i 1994) (applying § 657-7 to strict liability
claims in product liability action).
Section 657-7 also applies to Plaintiffs’ trespass
claim (Count V).
See Dunbar v. Cnty. of Maui, CV. No. 07–00107
DAE–BMK, 2008 WL 2622814, *3-4 (D. Hawai`i July 2, 2008)
(applying § 657-7 to, inter alia, claim for trespass to
property).
This Court is not aware of any case law expressly
stating the applicable statute of limitations for a nuisance
claim.
Plaintiffs’ allegations in their nuisance claim (Count
VI), however, clearly describe “damage or injury to persons or
property,” and therefore this Court concludes that § 657-7 also
9
As recognized in Defendants’ Motion, “[b]ecause this
motion addresses only limitations issues, the Court need not
reach the fundamental issue of whether farming can be deemed an
‘ultra-hazardous activity.’” [Mem. in Supp. of Defendants’
Motion at 10 n.4.]
53
applies to Count VI.
The Court now turns to the issue of whether any tolling
doctrine applies.
C.
The Continuing Tort Doctrine
Hawai`i recognizes a continuing tort doctrine under
which “a continuing wrong may, in effect, toll the statute of
limitations with respect to tortious conduct that is ongoing.”
Garner v. State Dep’t of Educ., 122 Hawai`i 150, 168, 223 P.3d
215, 233 (Ct. App. 2009) (citing Anderson v. State, 88 Hawai`i
241, 248-50, 965 P.2d 783, 790-92 (App. 1998); Wong Nin v. City
and County of Honolulu, 33 Haw. 379, 386 (1935)).
Where the
defendant could have taken curative action at all times, the
damage “cannot be deemed to be a permanent nuisance” and thus is
“a continuing injury against which the statute of limitations”
does not run.
Anderson, 88 Hawai`i at 249, 965 P.2d at 791
(citation and internal quotation marks omitted).
Under the continuing tort doctrine, “a continuous
tortious act should not be subject to a limitations period until
the act ceases.”
Id. at 250, 965 P.2d at 792.
“[W]hile the
statute of limitations is ‘tolled’ by a continuing tortious act,
recovery may be had only for damages accruing within the
statutory period before the action, but not for damages accrued
prior to that period.”
Garner, 122 Hawai`i at 168, 223 P.3d at
233 (emphasis in original) (citing Anderson v. State, 88 Hawai`i
54
241, 250, 965 P.2d 783, 792 (App. 1998) (citing Wong Nin v. City
and County of Honolulu, 33 Haw. 379, 386 (1935))).
The practical
effect is that “the date that the tort ‘first accrues’ moves
forward into the future as long as the tortious conduct
continues.”
Id.
Plaintiffs’ Counts I, II, IV, V, and VI are all based
on the alleged continuing tort that, since 2000, Pioneer’s poor
soil conservation practices have led to the migration of
pollutants that blow into the Waimea community, damaging Waimea
residents’ homes and creating a health hazard.
Complaint at ¶¶ 15-17.]
[Second Amended
Plaintiffs claim that, in spite of the
October 2000 Response Letter and the December 2011 Letter from
Pioneer stating its commitment to protecting the Waimea community
and to following reasonable agricultural practices, there have
been no changes.
[Id. ¶ 178.]
Plaintiffs further allege that,
from 2000 to the present day, Pioneer has committed additional
violations of state and local laws.
[Id. at ¶ 181.]
Based upon these factual allegations, the Court
CONCLUDES that the continuing tort doctrine applies and tolls the
statute of limitations for Counts I, II, IV, V, and VI.
Thus,
the date that the alleged torts first accrue moves forward from
2000 into the future.
Based upon the continuing tort doctrine,
the actionable time period for these counts is limited to two
years before the original complaint was filed on December 13,
55
2011 for the Aana plaintiffs and May 23, 2012 for the Casey
plaintiffs.
D.
Count VII
Count VII asserts claims of intentional/fraudulent
misrepresentation and negligent misrepresentation based upon the
October 2000 Response Letter, the 2002 Conservation Plan, and the
December 2011 Letter.
Plaintiffs allege that they relied to
their detriment on these misrepresentations by postponing action
against Defendants.
[Id. at ¶¶ 173-83.]
Defendants argue that
Plaintiffs’ misrepresentation claims based on pre-December 2009
statements should be time-barred.
Motion at 13.]
[Mem. in Supp. of Defendants’
Both negligent misrepresentation claims and
intentional/fraudulent misrepresentation claims, however, are
subject to the six-year limitations period in Haw. Rev. Stat.
§ 657-1(4).
(1981).
Au v. Au, 63 Haw. 210, 216-17, 626 P.2d 173, 178-79
Because of the nature of Plaintiffs’ misrepresentation
claims, the continuing tort doctrine does not apply.
The Court
therefore FINDS that the portions of Plaintiffs’
misrepresentation claims based on the October 2000 Response
Letter and 2002 Conservation Plan are time-barred.
The portion
of Plaintiffs’ misrepresentation claim based on the December 2011
Letter, however, is not time-barred.
56
E.
Fraudulent Concealment
Plaintiffs also argue that the statute of limitations
for each of their claims should be tolled because of fraudulent
concealment.
Plaintiffs emphasize that they only recently
discovered Pioneer’s failure to implement the 2002 Conservation
Plan and generally accepted agricultural practices when the
County issued the March 2011 Notices of Violation.
[Second
Amended Complaint at ¶¶ 71-78.]
Fraudulent concealment has been defined as
“employment of artifice, planned to prevent
inquiry or escape investigation, and misled or
hinder acquirement of information disclosing a
right of action. The acts relied on must be of an
affirmative character and fraudulent.” Lemson v.
General Motors Corp., 66 Mich. App. 94, 97, 238
N.W.2d 414, 415 (1975). Fraudulent concealment
involves the actions taken by a liable party to
conceal a known cause of action.
Au, 63 Haw. at 215, 626 P.2d at 178 (some citations omitted).
The Hawai`i Supreme Court went on to state,
The fraudulent concealment which will postpone the
operation of the statute must be the concealment
of the fact that plaintiff has a cause of action.
If there is a known cause of action there can be
no fraudulent concealment . . . .
It is not necessary that a party should know the
details of the evidence by which to establish his
cause of action. It is enough that he knows that
a cause of action exists in his favor, and when he
has this knowledge, it is his own fault if he does
not avail himself of those means which the law
provides for prosecuting or preserving his claim.
(Citation omitted.) (Emphasis added.)
Id. at 215-16, 626 P.2d at 178 (alteration in Au) (quoting Weast
57
v. Duffie, 272 Mich. 534, 539, 262 N.W. 401, 402 (1935)).
Plaintiffs’ attempt to resurrect the time-barred claims
based on the October 2000 Response Letter and the 2002
Conservation Plan by alleging fraudulent concealment is
unavailing.
The Second Amended Complaint clearly indicates
Plaintiffs’ knowledge that Defendants’ conduct, which caused the
persistent drift of fugitive dust and dangerous pesticides into
the Waimea community, has been a daily, ongoing issue for the
last decade.
[Second Amended Complaint at ¶¶ 40-41.]
Plaintiffs, therefore, cannot claim a lack of actual or
constructive notice.
The Court also finds that Plaintiffs did
not act with due diligence, given that they knew shortly after
the October 2000 Response Letter, that Pioneer had failed to take
sufficient actions, if any, because the intrusion of dust and
pesticides continued.
The Court therefore FINDS that Plaintiffs
have not pled factual allegations that, if proven, would
establish a basis to toll the applicable statutes of limitations
based on fraudulent concealment.
E.
Summary of Claims
As to Counts I, II, IV, V, and VI, the Court GRANTS
Defendants’ Motion as to the portions of these claims accruing
prior to December 13, 2009.
This Court, however, finds that it
is arguably possible for Plaintiffs to cure the defects in those
claims by amendment.
The dismissal is therefore WITHOUT
58
PREJUDICE.
The portions of Counts I, II, IV, V, and VI accruing
on or after December 13, 2009 remain.
As to Count VII, the Court GRANTS Defendants’ Motion as
to the portions of Count VII based upon the October 2000 Response
Letter and the 2002 Conservation Plan.
This Court, however,
finds that it is arguably possible for Plaintiffs to cure the
defects in those portions of Count VII by amendment.
dismissal is therefore WITHOUT PREJUDICE.
The
The Court DENIES
Defendants’ Motion as to the portion of Count VII based upon the
December 2011 Letter.
The Court emphasizes that, insofar as Defendants’
Motion only addressed the timeliness of Plaintiffs’ claims, this
Court expresses no opinion on whether Plaintiffs’ remaining
claims state plausible claims for relief.
CONCLUSION
On the basis of the foregoing, the Robinson
Defendants’ Motion to Dismiss Plaintiffs’ Second Amended
Complaint Under Fed. R. Civ. P. 12(b)(6) and Defendants’ Motion
to Dismiss Plaintiffs’ Second Amended Complaint, both filed on
February 20, 2013, are HEREBY GRANTED IN PART AND DENIED IN
PART.
The Robinson Motion and Defendants’ Motion are
GRANTED with respect to Count III, and the Robinson Motion is
GRANTED as to Count VIII.
Those claims, in their entirety, are
59
DISMISSED WITH PREJUDICE.
The Robinson Motion is GRANTED IN PART AND DENIED IN
PART with respect to Counts I, II, V, VI, and VII.
Those
claims are DISMISSED WITHOUT PREJUDICE as to the Robinson
Defendants.
Defendants’ Motion is GRANTED IN PART AND DENIED IN
PART with respect to Counts I, II, IV, V, VI, and VII.
The
portions of Counts I, II, IV, V, and VI accruing prior to
December 13, 2009 are DISMISSED WITHOUT PREJUDICE.
The
portions of Count VII based upon the October 2000 Response
Letter and the 2002 Conservation Plan are DISMISSED WITHOUT
PREJUDICE.
Defendants’ Motion is DENIED as to the portion of
Count VII based upon the December 2011 Letter.
To the extent that the Court has dismissed some of
the counts in the Second Amended Complaint without prejudice,
the Court GRANTS Plaintiffs leave until September 6, 2013 to
file a third amended complaint consistent with the terms of
this Order.
The Court CAUTIONS Plaintiffs that, if they fail
to file their third amended complaint by September 6, 2013, the
claims which this Court has dismissed without prejudice will be
automatically dismissed with prejudice.
Further, if Plaintiffs
file a third amended complaint which fails to address the
defects identified in this Order, the Court may dismiss the
claims which this Court has dismissed without prejudice with
60
prejudice.
The Court emphasizes that it has not granted
Plaintiffs leave to add new parties, claims, or theories of
liability.
If Plaintiffs’ third amended complaint includes new
parties, claims, or theories of liability, this Court may
dismiss such new parties, claims, or theories of liability with
prejudice.
It IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 9, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JIM AANA, ETC., ET AL V. PIONEER HI-BRED INTERNATIONAL, INC.,
ET AL; CIVIL NO. 12-00231 LEK-BMK; ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS GAY & ROBINSON, INC. AND ROBINSON
FAMILY PARTNERS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED
COMPLAINT UNDER FED. R. CIV. P. 12(B)(6); AND GRANTING IN PART
AND DENYING PART DEFENDANTS GAY & ROBINSON, INC., ROBINSON
FAMILY PARTNERS, AND PIONEER HI-BRED INTERNATIONAL, INC.’S
MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT
61
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