Jim Aana; et al. vs. Pioneer Hi-Bred International, Inc.
Filing
608
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS THIRD AMENDED COMPLAINT (RULE 12(B)(6)) re 339 . Signed by JUDGE LESLIE E. KOBAYASHI on 02/27/2014. -- Defendants' Motion to Dismiss Third A mended Complaint (Rule 12(b)(6)), filed September 23, 2013, is HEREBY GRANTED IN PART AND DENIED IN PART. Specifically, this Court rules as follows: - the Motion is GRANTED as to Amended Count III, which is DISMISSED WITH PREJUDICE;- the Mot ion is GRANTED insofar as any portion of the Third Amended Complaint alleging that the applicable statute of limitations is tolled based on fraudulent concealment is DISMISSED WITH PREJUDICE; - the Motion is DENIED as to Plaintiffs' claims in Amended Counts I, II, IV, and V against the Robinson Defendants based on the 2010 lease; - the Motion is GRANTED as to all other portions of Amended Counts I, II, IV, and V against the Robinson Defendants, and those claims are DISMISSED WITH P REJUDICE; - the Motion is GRANTED insofar as the portions of Amended Counts I, II, IV, and V seeking damages against Pioneer prior to December 13, 2009 for the Aana Plaintiffs and prior to May 23, 2010 for the Casey Plaintiffs are DISMISSED WITH PREJUDICE; - the Motion is GRANTED insofar as the portions of Amended Count VI based on the 2000 Response Letter and the 2002 Conservation Plan are DISMISSED WITH PREJUDICE; - the Motion is DENIED as to the portions of Amended Count VI regard ing the December 2011 Letter; and -the Motion is DENIED WITHOUT PREJUDICE as to Defendants' request for dismissal of Plaintiffs' prayer for diminution damages for Amended Counts I, II, IV, and V. (eps)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
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.
_____________________________
JEFFREY CASEY, et al., on
behalf themselves and all
others similarly situated,
Plaintiffs,
vs.
PIONEER HI-BRED
INTERNATIONAL, INC., et al.,
Defendants.
_____________________________
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CIVIL NO. 12-00231 LEK-BMK
CIVIL NO. 12-00665 LEK-BMK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS THIRD AMENDED COMPLAINT (RULE 12(B)(6))
On September, 23, 2013, Defendants Pioneer Hi-Bred
International, Inc. (“Pioneer”), Gay & Robinson, Inc., and
Robinson Family Partners1 (all collectively “Defendants”) filed
their Motion to Dismiss Third Amended Complaint (Rule 12(b)(6))
(“Motion”).
[Dkt. no. 339.]
Plaintiffs Jim Aana, et al., on
behalf of themselves and all others similarly situated
(collectively, “Plaintiffs”)2 filed their memorandum in
opposition on October 25, 2013, and Defendants filed their reply
on November 1, 2013.
[Dkt. nos. 351, 354.]
On November 8, 2013,
this Court issued an entering order finding this matter suitable
for disposition without a hearing pursuant to Rule LR7.2(d) of
the Local Rules of Practice of the United States District Court
for the District of Hawai`i (“Local Rules”).
[Dkt. no. 356.]
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, Defendants’
Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the
reasons set forth below.
BACKGROUND
The relevant factual and procedural background of this
case is set forth in this Court’s August 9, 2013 Order Granting
in Part and Denying in Part Defendants Gay & Robinson, Inc. and
1
This Court will refer to Gay & Robinson, Inc. and Robinson
Family Partners collectively as “the Robinson Defendants.”
2
Insofar as the instant case and Casey v. Pioneer Hi-Bred
International, Inc., CV 12-00655 LEK-BMK, have been consolidated,
this Court will refer to the plaintiffs in both cases
collectively as “Plaintiffs.” When necessary, this Court will
distinguish between “the Aana Plaintiffs” and “the Casey
Plaintiffs.” The defendants are the same in both cases.
2
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 (“8/9/13 Order”).
[Dkt. no. 224.3]
The Aana Plaintiffs filed their Second Amended
Complaint (Property Related Claims) (“Second Amended Complaint”)
on February 6, 2013.
[Dkt. no. 128.]
The Second Amended
Complaint alleged 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).4
3
The 8/9/13 Order is available at 2013 WL 4047110.
4
The Casey Amended Complaint alleged the same claims as the
Aana Second Amended Complaint. [Casey, Notice of Removal of
Action (28 U.S.C. Section 1441), filed 12/7/12 (dkt. no. 1), Exh.
C (Amended Complaint).]
3
In the 8/9/13 Order, this Court:
•dismissed Counts III and VIII with prejudice;
•dismissed Counts I, II, V, VI, and VII without prejudice as to
the Robinson Defendants;
•dismissed the portions of Counts I, II, IV, V, and VI accruing
prior to December 13, 2009 without prejudice;
•dismissed the portions of Count VII based upon Pioneer’s
October 31, 2000 letter, in which Pioneer, in response to a
petition by Waimea residents, affirmed its commitment to
protecting the environment and the Waimea community
(“October 2000 Response Letter”) and the conservation plan
that Pioneer submitted with its application for an
agricultural exemption under Kauai Ordinance 808 (“2002
Conservation Plan” and “Ordinance 808”); and
•denied Defendants’ motion to dismiss the Second Amended
Complaint as to the portion of Count VII based upon the
letter dated December 2011 that Pioneer issued in response
to complaints from the Waimea community (“December 2011
Letter”).
2013 WL 4047110, at *25.
Plaintiffs filed their Third Amended Complaint
(Property Related Claims) (“Third Amended Complaint”) on
September 6, 2013.
[Dkt. no. 331.]
Plaintiffs added factual
allegations regarding the history of the Robinson Defendants’
lease with Pioneer.
[Id. at ¶¶ 12-16.]
Plaintiffs also expanded
the allegations about: the Robinson Defendants’ historical sugar
farming on the property they later leased to Pioneer;5 how the
5
According to the Third Amended Complaint, “[i]n August
1998, Pioneer leased approximately 175 acres of former sugar cane
fields from the Robinson [Defendants],” and Pioneer used the
fields “to conduct open air testing of genetically modified
(‘GMO’) crops as part of Pioneer’s Waimea Research Center.”
(continued...)
4
location of the fields should make the risks of drift and run-off
readily apparent; [id. at ¶¶ 18-24;] the Robinson Defendants’
knowledge about the risk of erosion and drift based upon their
historical farming on the property; [id. at ¶¶ 30-32;] the
extension of additional leases in spite of the Robinson
Defendants’ knowledge about the erosion and drift problems on the
property; [id. at ¶¶ 33-34;] the recognition of the dangers of
pesticides and dust drift from the property; [id. at ¶¶ 35-46;]
Defendants’ knowledge of the concerns from the Waimea community
and Defendants’ reaction to those concerns; [id. at ¶¶ 47-58;]
Defendants’ failure to implement best management practices and
other conservation measures, in violation of Ordinance 808; [id.
at ¶¶ 73-74;] Plaintiffs’ discovery in 2011 of Defendants’
failure to implement best management practices and other
conservation measures, including the grubbing of additional
acreage without a permit or exemption; [id. at ¶¶ 83-94;]
Plaintiffs’ discovery, after they filed these actions, of
“repeated air quality complaints against Pioneer from the
inception of Pioneer’s Waimea operations to the present[;]” [id.
5
(...continued)
[Third Amended Complaint at ¶¶ 12-13.] Pioneer subsequently
leased additional fields from the Robinson Defendants for the
Waimea Research Center, culminating in the 2010 lease of an
additional 1100 acres, including fields previously subject to
temporary leases. [Id. at ¶¶ 14-15.] Plaintiffs refer to “[a]ll
fields leased by Pioneer from the Robinson [Defendants] related
to the Waimea Research Center” as “the GMO Test Fields.” [Id. at
¶ 16.]
5
at ¶ 107;] and Defendants’ alleged violation of the Hawai`i Air
Pollution Control Act because their conduct “has resulted in the
intentional generation of fugitive dust without consideration of
the impact to Waimea Residents” [id. at ¶ 109].
The Third Amended Complaint alleges the following
claims: (1) negligence against all Defendants for failure to use
due care (Amended Count I); (2) negligence against all Defendants
for failure to investigate and warn (Amended Count II);
(3) strict liability against Pioneer (Amended Count III);
(4) trespass against all Defendants (Amended Count IV);
(5) nuisance against all Defendants (Amended Count V); and
(6) negligent and intentional misrepresentation against Pioneer
(Amended Count VI).
Plaintiffs pray for the following relief: general,
special, and consequential damages; diminution of value of the
residents’ property due to the fugitive dust and the effects of
dangerous pesticides; the cost to remediate the properties;
preliminary and permanent injunctive relief; punitive damages;
attorneys’ fees; prejudgment interest; the tolling of the statute
of limitations; and any other appropriate relief.
[Id. at pgs.
38-39.]
In the instant Motion, Defendants seek: dismissal of
Amended Counts I, II, IV, and V with prejudice against the
Robinson Defendants; dismissal of Amended Counts III and VI with
6
prejudice against Pioneer; limitation of Plaintiffs’ potential
recoveries for the remaining portions of Amended Counts I, II,
and IV to the two-year-period before the filing of these actions;
and the dismissal of Plaintiffs’ claim for “diminution in value”
damages.
[Motion at 1-2.]
DISCUSSION
I.
Claims Against the Robinson Defendants
Defendants argue that Plaintiffs have merely shuffled
their factual allegations regarding the Robinson Defendants, and
that the basis of Plaintiffs’ claims against the Robinson
Defendants remains the same as the allegations which this Court
rejected in the 8/9/13 Order.
In the 8/9/13 Order, this Court
ruled that the Second Amended Complaint did not contain
sufficient factual allegations to support Plaintiffs’ claims of
negligence, failure to warn, trespass, and nuisance against the
Robinson Defendants.
Specifically, this Court stated:
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.
7
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 did
nothing. Even assuming, arguendo, that such a
claim is actionable, 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.
2013 WL 4047110, at *18 (footnote and citation omitted).
In the 8/9/13 Order, this Court ruled that Plaintiffs’
allegations in the Second Amended Complaint were insufficient to
plead plausible claims against the Robinson Defendants based on
landlord-tenant liability.
The Second Amended Complaint alleged
that the Robinson Defendants consented to Pioneer’s allegedly
unlawful farming practices because they knew, or had reason to
know, that Pioneer’s farming practices would result in a
nuisance, as the term is defined in the Hawai`i Right to Farm Act
(“Right to Farm Act”), Haw. Rev. Stat. § 165-1 et seq.
The
Second Amended Complaint alleged that the Robinson Defendants
had, or should have had, such knowledge in light of “the Robinson
Entities’ historic farming of sugar cane near Waimea,” [Second
Amended Complaint at ¶ 13,] and in light of the geography and
weather conditions in the area [id. at ¶¶ 14-15].
In the Third
Amended Complaint, Plaintiffs have expanded upon the allegations
8
regarding the Robinson Defendants’ historical farming and about
the inherent conditions of the area.
¶¶ 18-22, 28.]
[Third Amended Complaint at
Plaintiffs also added the following allegations:
31)
For example, before leasing to Pioneer, the
Robinson [Defendants] possessed actual
knowledge of complaints from the town of
Waimea related to agricultural dust drifting
into Waimea and paid cleaning costs for homes
in Waimea on more than one occasion because
of dust from the GMO Test Fields later leased
to Pioneer.
32)
Despite actual knowledge of the risk of
erosion and drift of pollutants into the
Waimea community from the GMO Test Fields
before their lease to Pioneer in 1998, the
Robinson [Defendants] entered the 1998 Lease
with Pioneer and allowed Pioneer to commence
operations without obtaining necessary
grubbing permits or an agricultural exemption
by actively implementing a Conservation Plan
in violation of Kauai law.
33)
After the 1998 Lease, the Robinson
[Defendants] were specifically made aware of
ongoing erosion and dust problems associated
with the GMO Test Fields and related roads as
early as 2002 through lease discussions with
Pioneer and through the complaint of at least
one resident from Waimea. Indeed, after
learning of the ongoing erosion and dust
problems on the GMO Test Fields, the Robinson
[Defendants] leased personnel and equipment
to Pioneer for the specific purpose of
erosion control on the GMO Test Fields.
34)
Despite actual knowledge of the erosion
problems on the GMO Test Fields after the
1998 Lease to Pioneer, the Robinson
[Defendants] entered into additional leases
with Pioneer for acreage in 2002, 2005, and
ultimately entered the 2010 Lease for 1100
acres and again allowed Pioneer to commence
grubbing operations without obtaining
grubbing permits or an agricultural exemption
9
in blatant violation of Kauai law.
[Id. at pgs. 8-9 (footnote omitted) (emphases in original).]
In
support of their allegation that the Robinson Defendants knew, or
should have known, about complaints about drift from the GMO Test
Fields, Plaintiffs added the allegation that “Waimea Resident
Klayton Kubo complained about dust from the GMO Test Fields to
Wes Sahara of Gay & Robinson, Inc., in 2000.”
[Id. at ¶ 48.]
Plaintiffs also added the allegation that, when Pioneer
“belatedly started implementing insufficient dust and erosion
mitigation measures to control dust and pesticides in 2010[,]” it
acted “with the Robinson [Defendants’] advice, help, and
knowledge[.]”
[Id. at ¶ 80.]
Even construing the allegations in the Third Amended
Complaint in the light most favorable to Plaintiffs, see Fed’n of
African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207
(9th Cir. 1996), none of the additional allegations, if proven,
would establish that, before the Robinson Defendants entered into
the lease with Pioneer in 1998, they: (1) consented to Pioneer’s
unlawful farming practices on the property or knew, or had reason
to know, Pioneer would carry on unlawful practices on the
property; and (2) knew or should have known that Pioneer’s
activities would necessarily create a nuisance, as defined under
the Right to Farm Act.
The only new factual allegations
supporting Plaintiffs’ claim for landowner liability from the
10
original lease are: the Robinson Defendants’ historical farming
in the area; the geographic and weather conditions in the area;
the Robinson Defendants’ knowledge that there was some drift into
the Waimea community; and the Robinson Defendants’ payment of
clean-up costs for Waimea homes.
This does not rise to the level
of knowledge that Pioneer would conduct unlawful operations on
the property and that those unlawful operations would cause drift
which would necessarily rise to the level of a nuisance, as that
term is defined in the Right to Farm Act.
This Court concludes
that Plaintiffs’ claims against the Robinson Defendants in
Amended Counts I, II, IV, and V based on the 1998 lease between
the Robinson Defendants and Pioneer do not state plausible claims
for relief.
(2007).
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
Further, this Court has previously given Plaintiffs the
opportunity to correct this defect in Plaintiffs’ claims, and
Plaintiffs failed to do so.
This Court therefore finds that
further amendment as to the Robinson Defendants’ pre-lease
consent and/or knowledge would be futile.
See Johnson v.
American Airlines, Inc., 834 F.2d 721, 724 (9th Cir. 1987) (“But
courts have discretion to deny leave to amend a complaint for
futility[.]” (citation and quotation marks omitted)).
The Third Amended Complaint also alleges that, after
the Robinson Defendants entered into the initial lease with
Pioneer, they entered into lease extensions for additional terms
11
and for more acreage.
Plaintiffs allege that the Robinson
Defendants are liable for Pioneer’s unlawful acts during the
terms of those extensions because, when they entered into those
agreements, the Robinson Defendants: knew about the erosion and
drift problems and knew about complaints from Waimea residents;
participated in Pioneer’s insufficient attempts to address
erosion and drift; and allowed Pioneer to operate even though
they knew that Pioneer had not obtained the required permits and
exemptions.
As this Court has noted in its previous orders, the
applicable landlord-liability rule has its origins in the
Restatement (Second) of Torts § 837(1).
8/9/13 Order, 2013 WL
4047110, at *17 (quoting Casey v. Pioneer Hi Bred Int’l, Inc.,
Civil No. 12-00655 LEK-BMK, 2013 WL 1701873 at *6 (D. Hawai`i
Apr. 17, 2013)).
The comments to § 837(1)(a)6 state, in
pertinent part:
g.
Lease renewed. If at the time that the
lessor renews the lease he knows that activities
are being carried on or that physical conditions
have been created upon the leased land that are
causing an unreasonable interference with the use
and enjoyment of another’s land, he is liable for
the continuance of the interference after the
renewal.
h.
Lessor’s consent or knowledge.
6
The lessor’s
Restatement (Second) of Torts § 837(1)(a) is the
requirement that, “at the time of the lease the lessor consents
to the activity or knows or has reason to know that it will be
carried on[.]”
12
consent may be manifested by specific words or by
all the circumstances. By the mere letting, the
lessor consents to such activities as are normally
incidental to the ordinary or usual use of the
premises. Thus, if he lets land with a brick kiln
upon it, he authorizes activities normally
incidental to use as a brick kiln; or if he lets
land with a dwelling house upon it, he consents to
such activities as are normally incidental to use
as a dwelling house. Likewise, if the lessor by
the terms of the lease lets the premises for a
certain purpose, he consents to activities
normally incidental to their use for that
purpose. . . .
If the lessor has reason to believe at the
time when the lease is made or renewed that the
lessee intends to use the land or intends to allow
others to use it for a harmful activity, his act
of furnishing the place for the activity is
sufficient to subject him to liability for harm
caused by the activity. It is not enough that the
lessor knows that the land is suitable for the
activity or that it may be used for harmful
purposes. The lessor’s liability does not extend
to activities of the lessee that he neither
consents to nor has reason to know are intended at
the time he makes the lease. In respect to other
activities of the lessee, the lessor has no duty
to stop them, nor is he bound to terminate the
lease even though he has a power to do so.
Restatement (Second) of Torts § 837(1)(a) cmts. g, h.
Thus, it is not enough for Plaintiffs to allege that
the Robinson Defendants knew there was, or would be, some erosion
and drift from the GMO Test Fields.
Nor is it enough to allege
that the Robinson Defendants knew the erosion and drift may rise
to the level of a nuisance, as defined in the Right to Farm Act.
In order to state plausible claims against the Robinson
Defendants, Plaintiffs must allege facts that, if proven, will
13
establish that the Robinson Defendants knew or should have known
that the erosion and drift would necessarily rise to the level of
a nuisance.
For purposes of the instant Motion, this Court takes
as true Plaintiffs’ allegation that, when they entered into the
lease extensions, the Robinson Defendants knew that Pioneer was
operating without the required permits and exemptions.
Plaintiffs must also allege facts that, if proven, would
establish that, at the time of the lease extensions, Pioneer’s
unpermitted operations were causing or would necessarily cause a
nuisance.
On a motion to dismiss, this Court need only determine
if there are sufficient factual allegations to support a
reasonable inference of liability.
662, 678 (2009).
Ashcroft v. Iqbal, 556 U.S.
It is a close question whether the allegations
in the Third Amended Complaint support a reasonable inference
that the Robinson Defendants are liable for Pioneer’s allegedly
unlawful farming operations because of the Robinson Defendants’
consent and/or knowledge at the time of the lease extensions.
Plaintiffs allege that, at the time of the lease extensions, the
Robinson Defendants knew and consented to Pioneer’s operating
without the required permits and exemptions and that Waimea
residents had already presented complaints to Pioneer and the
Robinson Defendants about erosion and drift from the GMO Test
Fields.
Viewing the allegations in the light most favorable to
14
Plaintiffs, this Court can reasonably infer that, at the time of
the lease extensions in 2002, 2005, and 2010, the Robinson
Defendants knew that Pioneer’s unlawful farming operations were
causing, or would necessarily cause, a nuisance.
Thus,
Plaintiffs’ claims against the Robinson Defendants based upon the
lease extensions survive dismissal, to the extent that
Plaintiffs’ underlying claims against Pioneer are timely.
See
infra Section III.B.
This Court GRANTS the Motion as to Plaintiffs’ claims
against the Robinson Defendants in Amended Counts I, II, IV, and
V that allege liability prior to the 2002 lease extension.
Those
portions of Amended Counts I, II, IV, and V are DISMISSED WITH
PREJUDICE.
II.
Whether Amended Count III States a Claim
The Motion also asks this Court to dismiss Amended
Count III, Plaintiffs’ strict liability claim against Pioneer,
with prejudice.
As this Court stated in the 8/9/13 Order,
“Hawai`i law recognizes the doctrine of strict liability for
ultra-hazardous activities.”
2013 WL 4047110, at *22 (D. Hawai`i
Aug. 9, 2013) (citing 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)).
The alleged ultra-hazardous
activity in Plaintiffs’ strict liability claim is “Pioneer’s use
of inherently dangerous pesticides[.]”
15
[Third Amended Complaint
at ¶ 155.]
Plaintiffs allege that this is “an abnormally
dangerous activity because Pioneer cannot eliminate the risks
even when it exercises the utmost care.”
[Id. at ¶ 153.]
Defendants argue that this claim fails as a matter of law because
of the Right to Farm Act.
This Court agrees.
The Right to Farm Act states, in pertinent part:
No court, official, public servant, or public
employee 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.
Haw. Rev. Stat. § 165-4.
Further, a “farming operation”
includes, but is not limited to, “[t]he application of chemical
fertilizers, conditioners, insecticides, pesticides, and
herbicides[.]”
Haw. Rev. Stat. § 165-2(5).
Pursuant to the Right to Farm Act, this Court cannot
find Pioneer’s use of pesticides in its farming operations to be
a nuisance unless Plaintiffs prove that Pioneer failed to apply
the pesticides “in a manner consistent with generally accepted
agricultural and management practices.”
Amended Count III,
however, essentially alleges that Pioneer’s use of pesticides is
a nuisance,7 even when Pioneer “exercises the utmost care.”
7
Under the Right to Farm Act, “‘[n]uisance’ means any
interference with reasonable use and enjoyment of land, including
but not limited to smoke, odors, dust, noise, or vibration;
(continued...)
16
Plaintiffs argue that this Court should reject
Defendants’ argument that the Right to Farm Act precludes the
strict liability claim because to rule otherwise would constitute
a ruling that the Right to Farm Act allows farms to violate state
and federal law by disregarding the labels on pesticide products,
resulting in off-site-drift of pesticides.
[Mem. in Opp. at 25-
26 (citing Federal Insecticide Fungicide and Rodenticide Act, 7
U.S.C. § 136, et seq.; Haw. Rev. Stat. § 149A-31).]
argument is misplaced.
Plaintiffs’
The Right to Farm Act does not allow
farmers to violate pesticide laws and standards with impunity,
nor does it interfere with any enforcement mechanisms within
applicable pesticide laws.
The Right to Farm Act does, however,
preclude a plaintiff from arguing that a farmer’s use of
pesticides is per se an ultra-hazardous activity.
The alleged
failure to comply with pesticide product labels and the alleged
violation of state and federal pesticide laws are relevant to
Plaintiffs’ failure to exercise due care claims.
Amended Count
III, however, alleges that Pioneer’s use of pesticides is per se
ultra-hazardous, and therefore is per se a nuisance.
7
This Court
(...continued)
provided that nothing in this chapter shall in any way restrict
or impede the authority of the State to protect the public
health, safety, and welfare.” Haw. Rev. Stat. § 165-2.
Plaintiffs’ Amended Count III meets the requirements of this
definition, and is therefore a nuisance claim under the Right to
Farm Act, even though Plaintiffs have not titled Amended Count
III as a nuisance claim. See id.
17
therefore finds that Amended Count III fails to state a plausible
claim for relief because it is precluded by the Right to Farm
Act.
See Twombly, 550 U.S. at 570.
Further, this Court finds
that Plaintiffs cannot cure the defects in this claim by
amendment.
See Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th
Cir. 2009) (“Dismissal without leave to amend is improper unless
it is clear that the complaint could not be saved by any
amendment.” (citation and quotation marks omitted)).
This Court
GRANTS Defendants’ Motion as to Amended Count III, which is
DISMISSED WITH PREJUDICE.
III. Limitations Periods for Remaining Claims
A.
Fraudulent Concealment
In response to the motions to dismiss the Second
Amended Complaint, Plaintiffs argued that the statute of
limitations as to each of their claims should be tolled because
of fraudulent concealment.
This Court, however, found that the
Second Amended Complaint did not contain factual allegations
that, if proven, would establish a basis to toll the applicable
statutes of limitations based on fraudulent concealment.
8/9/13
Order, 2013 WL 4047110, at *24.
In the Second Amended Complaint, the failure to use due
care claim, the failure to warn claim, the trespass claim, and
the nuisance claim each contained a paragraph alleging that
“Pioneer has intentionally and fraudulently concealed its conduct
18
from Waimea Residents and the County of Kauai . . . .”
Amended Complaint at ¶¶ 107, 116, 158, 169.]
[Second
The corresponding
claims in the Third Amended Complaint (Amended Counts I, II, IV,
and V), however, do not contain this allegation.
It therefore
appears that Plaintiffs have abandoned their fraudulent
concealment argument.
Assuming, arguendo, that Plaintiffs have
not abandoned the fraudulent concealment argument, Plaintiffs’
base their position on allegations such as:
when Waimea residents raised complaints about dust
and pesticides in 2000, Pioneer claimed it was
doing everything possible to keep dust to a
minimum, that it was following reasonable
agricultural practices, and that the dust was also
because of sources of wind-borne dust to the north
and east of Pioneer’s fields, which Waimea
residents relied upon.
[Third Amended Complaint at ¶ 91.]
This Court finds that, even
if this allegation, and other similar allegations in the Third
Amended Complaint, are proven, they are insufficient to establish
a basis for tolling the applicable statutes of limitations based
on fraudulent concealment.
Insofar as Plaintiffs had the
opportunity to amend the allegations supporting their fraudulent
concealment argument and Plaintiffs failed to plead additional
allegations, this Court finds that further amendment on this
issue would be futile.
See Johnson, 834 F.2d at 724.
This Court
therefore GRANTS Defendants’ Motion insofar as this Court
DISMISSES WITH PREJUDICE the portions of Plaintiffs’ Third
Amended Complaint alleging that the applicable statutes of
19
limitations are tolled based on fraudulent concealment.
B.
Claims Subject to Haw. Rev. Stat. § 657-7
Amended Counts I, II, and IV are subject to the two-
year statute of limitations set forth in Haw. Rev. Stat. § 657-7.
See 8/9/13 Order, 2013 WL 4047110, at *19 (“Negligence claims in
Hawai`i are subject to the two-year statute of limitations set
forth in Haw. Rev. Stat. § 657-7.” (citation omitted)); id. at
*22 (“Section 657-7 also applies to Plaintiffs’ trespass
claim[.]”).
This Court also ruled in the 8/9/13 Order that
Plaintiffs’ nuisance claim (now Amended Count V) is subject to
§ 657-7.
Id.
This Court also ruled in the 8/9/13 Order that
Plaintiffs’ negligence claims accrued in 2000, but the continuing
tort doctrine applied to, inter alia, Plaintiffs’ failure to use
due care claim, failure to investigate and warn claim, trespass
claim, and nuisance claim.
Id. at *22-23.
Thus, “the actionable
time period for these counts is limited to two years before the
original complaint was filed on December 13, 2011 for the
Aana plaintiffs and May 23, 2012 for the Casey plaintiffs.”
at *23.
Id.
This Court, however, granted Plaintiffs leave to amend
these claims, and Plaintiffs argue that the Third Amended
Complaint raises factual issues regarding the running of the
statute of limitations as to the 200 Plaintiffs.
Plaintiffs
point to paragraphs 83-94 of the Third Amended Complaint, which
20
allege that they did not discover Defendants’ negligence until
the March 3, 2011 Notice of Grubbing Violation - Sedimentation &
Erosion Control Ordinance 808 TMK: (4) 1-7-005:004 issued to
Defendants by the County of Kauai Department of Public Works
(“Notice of Violation”).
(Notice of Violation).]
[Third Amended Complaint, Exh. 10
Plaintiffs argue that, based on these
allegations, this Court cannot limit the recovery period to two
years before the filings of the complaints.
[Mem. in Opp. at
19.]
The Third Amended Complaint, however, also alleges
that, “in June 2000, numerous Waimea residents petitioned local
agricultural growers near Waimea to address the impact of
fugitive dust and chemicals from the GMO Test Fields on their
community (the ‘Waimea Petition’).”
[Third Amended Complaint at
¶ 49; id., Exh. 5 (Waimea Petition).]
The Waimea Petition
states:
We, the undersigned, wish to urgently request that
local growers of the Waimea, Kauai region . . .
immediately implement steps to reduce dust
pollution caused by vehicular traffic on the dirt
roads used in the planting and harvesting of their
crops . . . .
We further wish to express our growing concerns
about other air pollution generated by
agricultural enterprises in the vicinity of
Waimea. The use of vehicles on dirt roads which
have not been wet down prior to use raises clouds
of red dust, which are subsequently carried by the
wind into our community. This dust is then
deposited on our homes, our cars, our streets and
buildings, and, most alarmingly, our children, who
21
are forced to breathe dust laden air as a part of
living.
We are concerned that this dust may contain other
pollutants, such as fertilizers and/or pesticides
that are used in commercial agriculture, and that
the long-term health consequences of continuing
present behavior may be severe.
We 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.
The result is clearly visible in the film of dust
that blankets our community. Please help to
reduce and ultimately eliminate this very serious
problem.
[Id., Exh. 5 at 1.]
in June 2000.
The Waimea Petition was presented to Pioneer
[Third Amended Complaint at ¶ 52.]
Thus, by
incorporating the Waimea Petition into the Third Amended
Complaint, Plaintiffs admit that, as early as 2000, at least some
of them suspected that, 1) Pioneer’s actions were causing dust
and chemicals to drift into the community, and 2) Pioneer was not
adequately implementing dust-reducing measures and/or was not
complying with dust pollution regulations.
These are the core
allegations which Plaintiffs base their current claims upon, and
at least some of Plaintiffs were aware of the basis for these
claims in 2000.
Plaintiffs contend that the issue of when the statute
of limitations began to run is not appropriate for determination
in a motion to dismiss.
This Court acknowledges that the Hawai`i
Supreme Court has stated: “When there has been a belated
22
discovery of the cause of action, the issue whether the plaintiff
exercised reasonable diligence is a question of fact for the
court or jury to decide.”
Thomas v. Kidani, 126 Hawai`i 125,
133, 267 P.3d 1230, 1238 (2011) (citation and quotation marks
omitted).
In light of Plaintiffs’ allegations based on the
Waimea Petition, however, Plaintiffs’ conclusory allegation that
they did not discover the basis of their claims until 2011 is not
enough to save Amended Counts I, II, IV, and V from a motion to
dismiss.
Plaintiffs also argue that the Waimea Petition cannot
be the basis of a statute limitations ruling as to all Plaintiffs
because “[n]ot every Plaintiff lived in Waimea when the 2000
Petition was signed.
Petition.
Petition.”
Not every Plaintiff signed the 2000
Not every Plaintiff was even aware of the 2000
[Mem. in Opp. at 21.]
It is apparent from the Third
Amended Complaint that not all Plaintiffs signed the Waimea
Petition.
The Third Amended Complaint, however, does not
identify which Plaintiffs, if any, were not residing in Waimea at
the time of the Waimea Petition, nor does it allege that some of
the Plaintiffs who were residing in Waimea at the time of the
Waimea Petition were unaware of the petition.
Even assuming,
arguendo, that the Third Amended Complaint included those
allegations, the Plaintiffs who were residing in Waimea at the
time of the Waimea Petition could have, through the use of
23
reasonable diligence, discovered the basis for the allegations in
the petition.
Similarly, even as to any Plaintiffs who were not
residing in the Waimea area at the time of the Waimea Petition,
those Plaintiffs could have reasonably discovered the basis for
their claims prior to the Notice of Violation.
Insofar as the
Waimea residents at the time of the petition could have
discovered the basis for the claims through the exercise of due
diligence, any new residents to the area could have discovered
the basis for the claims when they moved to the area.
Although their may be some Plaintiffs whose claims
accrued after 2000 because they moved to the Waimea area at some
later point, this Court need not determine exactly when each of
those Plaintiffs moved to the area in order to rule on the
actionable damages period.
Based on the factual allegations in
the Third Amended Complaint, Amended Counts I, II, IV, and V
allege continuing torts by Pioneer, and the continuing tort
doctrine tolls the applicable statute of limitations.
See 8/9/13
Order, 2013 WL 4047110, at *22-23 (discussing the continuing tort
doctrine).
This Court concludes that the actionable period for
Amended Counts I, II, IV, and V begins, at the latest, two years
before the Aana plaintiffs filed the original complaint on
December 13, 2011 and two years before May 23, 2012 for the Casey
24
plaintiffs.8
This Court also finds that Plaintiffs cannot cure
this defect by amendment.
See Harris, 573 F.3d at 737.
This
Court therefore GRANTS Defendants’ Motion to the extent that the
portions of Amended Counts I, II, IV, and V seeking damages
against Pioneer prior to the two-year period before the filing of
the complaints are DISMISSED WITH PREJUDICE.
As to the Robinson Defendants, the only lease extension
that occurred during the actionable period is the 2010 lease.
This Court therefore DENIES Defendants’ Motion as to Plaintiffs’
claims against the Robinson Defendants in Amended Counts I, II,
IV, and V based on the 2010 lease extension.
This Court GRANTS
Defendants’ Motion to the extent that Plaintiffs’ claims against
the Robinson Defendants in Amended Counts I, II, IV, and V based
on the 2002 and 2005 lease extension are DISMISSED WITH
PREJUDICE.
C.
Misrepresentation Claims
Amended Count VI is subject to the six-year limitations
period in Haw. Rev. Stat. § 657-1(4).
8/9/13 Order, 2013 WL
4047110, at *23 (“Both negligent misrepresentation claims and
8
It is possible that some of Plaintiffs’ claims may not
have accrued until after December 13, 2009 for the
Aana Plaintiffs or May 23, 2010 for the Casey Plaintiffs. For
example, one of the Aana Plaintiffs may have moved to the Waimea
area less than two years before December 13, 2009. That
Plaintiff would only have damages beginning from the date of his
or her move, and would still fall within the actionable period
described in this Order.
25
intentional/fraudulent misrepresentation claims, however, are
subject to the six-year limitations period in Haw. Rev. Stat.
§ 657-1(4).” (citation omitted)).
This Court also found in the
8/9/13 Order that, because of the nature of Plaintiffs’
misrepresentation claims, the continuing tort doctrine did not
apply.
This Court therefore ruled that Plaintiffs’
misrepresentation claims based on the October 2000 Response
Letter and the 2002 Conservation Plan were time-barred, but
Plaintiffs’ misrepresentation claims based on the December 2011
Letter were timely.
Id.
This Court allowed Plaintiffs to amend
their misrepresentation claims as to the October 2000 Response
Letter and the 2002 Conservation Plan.
Plaintiffs argue that,
based upon the allegations in the Third Amended Complaint, this
Court should rule that Plaintiffs timely filed their
misrepresentation claims based on the October 2000 Response
Letter and the 2002 Conservation Plan.
Hawai`i courts also apply the discovery rule to fraudbased claims.
1237.
See, e.g., Thomas, 126 Hawai`i at 132, 267 P.3d at
Plaintiffs argue that their misrepresentation claims did
not accrue until the County issued the Notice of Violation in
March 2011.
Plaintiffs rely on the following allegation, which
they added in the Third Amended Complaint:
While Waimea Residents were aware of dust impacts
to the Waimea community, there [sic] were not
aware that the dust impacting their community was
caused by Pioneer’s failure to follow its 2002
26
Conservation Plan and implement best management
practices and Pioneer’s failure to implement the
measures promised in its 2000 Response letter and
2002 Conservation Plan was not discovered until
after the County of Kauai issued its Notice of
Violation of Ordinance 808 in March 2011.
[Third Amended Complaint at ¶ 187 (emphasis in original).]
These
allegations are similar to the allegations Plaintiffs rely on in
support of their argument that the discovery rule applies to
their negligence, trespass, and nuisance claims.
For the reasons
stated supra Section III.B., this Court concludes that the
discovery rule does not apply to Plaintiffs’ misrepresentation
claims based on Pioneer’s 2000 Response Letter and Pioneer’s 2002
Conservation Plan.
Insofar as Plaintiffs had the opportunity to
amend their allegations supporting the application of the
discovery rule to their misrepresentation claims, and Plaintiffs
failed to plead sufficient allegations, this Court finds that
further amendment regarding this issue would be futile.
Johnson, 834 F.2d at 724.
See
This Court therefore GRANTS
Defendants’ Motion insofar as this Court DISMISSES WITH PREJUDICE
the portions of Amended Count VI based on the 2000 Response
Letter and the 2002 Conservation Plan.
IV.
Whether Amended Count VI States a Claim
Defendants also argue that the remaining portion of
Amended Count VI, which is based on Pioneer’s alleged
misrepresentations in the December 2011 Letter, fails to state a
plausible claim.
As this Court stated in the 8/9/13 Order:
27
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. Cutter Dodge, Inc., 98 Hawai`i
309, 321, 47 P.3d 1222, 1234 (2002)).
2013 WL 4047110, at *18-19 (alteration in 8/9/13 Order).
Viewing Amended Count VI in the light most favorable to
Plaintiffs, this Court finds that it contains sufficient factual
allegations to state a plausible claim for relief.
550 U.S. at 570.
See Twombly,
This Court acknowledges that it is a close
question whether Amended Count VI sufficiently pleads the
reliance required for both an intentional misrepresentation claim
and a negligent misrepresentation claim because the Aana
Plaintiffs filed this action in state court on December 13, 2011
28
- the same month that Pioneer issued the December 2011 Letter.
Whether the alleged reliance is sufficient to support
misrepresentation claims, however, is an issue for summary
judgment and is not appropriate at this stage of the case.
This
Court therefore DENIES the Motion as to the portions of Amended
Count VI regarding the December 2011 Letter.
V.
Diminution Damages
Finally, Defendants argue that this Court must dismiss
Plaintiffs’ claims for diminution of value damages for the claims
that rely on the continuing tort doctrine.
Defendants argue
that, as a matter of law, a continuing nuisance or trespass can
be abated at any time, and therefore the plaintiff would receive
a double recovery if he was allowed to recover the depreciation
in the value of his property in addition to the removal of the
cause of the depreciation.
[Mem. in Supp. of Motion at 23-25
(some citations omitted) (citing Bartleson v. United States, 96
F.3d 1270, 1274-75 (9th Cir. 1996); Federal Deposit Ins. Corp. v.
Jackson-Shaw Partners No. 46, Ltd., 850 F. Supp. 839, 842 (N.D.
Cal. 1994); Mangini v. Aerojet-General Corp., 912 P.2d 1220 (Cal.
1996); Spaulding v. Cameron, 239 P.2d 625, 629 (Cal. 1952); Santa
Fe P’ship v. ARCO Products Co., 54 Cal. Rptr. 2d 214, 224 (Cal.
Ct. App. 1996)).]
Plaintiffs respond that Defendants’ challenge
is premature because what remedies Plaintiffs are entitled to
will depend on the evidence presented at trial regarding the
29
nature of the harm that Pioneer caused and whether Pioneer can
abate the harm.
[Mem. in Opp. at 24.]
This Court has diversity jurisdiction over the instant
case pursuant to the Class Action Fairness Act (“CAFA”).
[Notice
of Removal, filed 5/4/12 (dkt. no. 1), at ¶ 12 (some citations
omitted) (citing 28 U.S.C. § 1332(d)).]
The Ninth Circuit has
recognized that:
In determining the law of the state for purposes
of diversity, a federal court is bound by the
decisions of the highest state court. Harvey’s
Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153,
154 (9th Cir. 1992). If the state’s highest court
has not decided an issue, it is the responsibility
of the federal courts sitting in diversity to
predict “how the state high court would resolve
it.” Air–Sea Forwarders, Inc. v. Air Asia Co.,
Ltd., 880 F.2d 176, 186 (9th Cir. 1989) (internal
quotation marks omitted). . . .
Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir.
2011).
The parties have not cited, nor has this Court found,
any Hawai`i case law addressing whether diminution damages are
available for continuing torts.
California case law.
The Motion relies primarily on
“Under California law, damages for
diminution in value may only be recovered for permanent, not
continuing, nuisances.”
Gehr v. Baker Hughes Oil Field
Operations, Inc., 81 Cal. Rptr. 3d 219, 221 (Dist. Ct. App. 2008)
(citing Santa Fe Partnership v. ARCO Products Co. (1996) 46 Cal.
App. 4th 967, 977–978, 54 Cal. Rptr. 2d 214).
30
This Court must
therefore predict whether the Hawai`i Supreme Court would follow
this legal principle, which is well-settled in California law.
This district court has noted that Hawai`i courts look
to California case law for guidance regarding tort law issues.
See Wailua Assocs. v. Aetna Cas. & Sur. Co., 183 F.R.D. 550,
563–64 (D. Hawai`i 1998) (recognizing that the “Hawaii Supreme
Court has, in the past, looked to California for guidance” on
tort law); see also Stanton v. Bank of Am., N.A., Cv. No.
09–00404 DAE–LEK, 2010 WL 4176375, at *14 (D. Hawai`i Oct. 19,
2010); Kapunakea Partners v. Equilon Enters. LLC, 679 F. Supp. 2d
1203, 1217-18 (D. Hawai`i 2009).
Based on the current record and
based on the parties’ arguments, this Court cannot conclude that
the Hawai`i Supreme Court would follow California’s rule
prohibiting diminution damages for continuing torts.
California’s rule is based, at least in part, on a California
statute which does not appear to have a counterpart in the
Hawai`i Revised Statutes.
See Starrh & Starrh Cotton Growers v.
Aera Energy LLC, 63 Cal. Rptr. 3d 165, 171 (Dist. Ct. App. 2007)
(“Pursuant to Civil Code section 3334, damages allowed for
continuing trespass include the value of the use of the property,
reasonable cost of repair or restoration to the property’s
original condition, and the costs of recovering possession.”).9
9
Cal. Civ. Code § 3334(a) states:
(continued...)
31
At this stage of the case, this Court cannot conclude,
as a matter of law, that diminution damages are unavailable for
the continuing torts alleged in the Third Amended Complaint.10
The Motion is DENIED WITHOUT PREJUDICE as to Defendants’ request
for dismissal of Plaintiffs’ prayer for diminution damages for
Amended Counts I, II, IV, and V.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Dismiss Third Amended Complaint (Rule 12(b)(6)), filed September
23, 2013, is HEREBY GRANTED IN PART AND DENIED IN PART.
Specifically, this Court rules as follows:
-the Motion is GRANTED as to Amended Count III, which is
DISMISSED WITH PREJUDICE;
-the Motion is GRANTED insofar as any portion of the Third
9
(...continued)
The detriment caused by the wrongful occupation of
real property, in cases not embraced in Section
3335 of this code, the Eminent Domain Law (Title 7
(commencing with Section 1230.010) of Part 3 of
the Code of Civil Procedure), or Section 1174 of
the Code of Civil Procedure, is deemed to include
the value of the use of the property for the time
of that wrongful occupation, not exceeding five
years next preceding the commencement of the
action or proceeding to enforce the right to
damages, the reasonable cost of repair or
restoration of the property to its original
condition, and the costs, if any, of recovering
the possession.
10
This Court notes that, in addition to remediation
damages, Plaintiffs also seek to recover the cost to cure or
mitigate the harm to their properties. [Third Amended Complaint
at pg. 38.]
32
Amended Complaint alleging that the applicable statute of
limitations is tolled based on fraudulent concealment is
DISMISSED WITH PREJUDICE;
-the Motion is DENIED as to Plaintiffs’ claims in Amended Counts
I, II, IV, and V against the Robinson Defendants based on
the 2010 lease;
-the Motion is GRANTED as to all other portions of Amended Counts
I, II, IV, and V against the Robinson Defendants, and those
claims are DISMISSED WITH PREJUDICE;
-the Motion is GRANTED insofar as the portions of Amended Counts
I, II, IV, and V seeking damages against Pioneer prior to
December 13, 2009 for the Aana Plaintiffs and prior to May
23, 2010 for the Casey Plaintiffs are DISMISSED WITH
PREJUDICE;
-the Motion is GRANTED insofar as the portions of Amended Count
VI based on the 2000 Response Letter and the 2002
Conservation Plan are DISMISSED WITH PREJUDICE;
-the Motion is DENIED as to the portions of Amended Count VI
regarding the December 2011 Letter; and
-the Motion is DENIED WITHOUT PREJUDICE as to Defendants’ request
for dismissal of Plaintiffs’ prayer for diminution damages
for Amended Counts I, II, IV, and V.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 27, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JIM AANA, ET AL. VS. PIONEER HI-BRED INTERNATIONAL, INC., ET AL;
CV 12-00231 LEK-BMK; JEFFREY CASEY, ET AL. VS. PIONEER HI-BRED
INTERNATIONAL, INC., ET AL; CV 12-00655 LEK-BMK; ORDER GRANTING
IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS THIRD
AMENDED COMPLAINT (RULE 12(B)(6))
33
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