Donaway et al v. Rohm and Haas Company, Louisville Plant

Filing 189

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II granting 176 Motion to Dismiss with prejudice all claims of Ronnie Meredith, Hannah Meredity, Lisa Meredith, Murle Fuqua, Eric Cox, Ralph Burchett adn Darline Burchett for failure to provid e discovery or appear at depos; granting 178 Motion to Dismiss with prejudice the nuance claims of Rocie Bendixen, Edward Humphrey, Jr., Michael Blair, David Lewis, David Watts and Gary McGrew; Court will consider dft's remaining mtn for summary jgm in due course. cc:counsel (MLG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:06CV-575-H

JUDITH DONAWAY, et al.

PLAINTIFFS

V.
ROHM AND HAAS COMPANY,
LOUISVILLE PLANT

DEFENDANT

MEMORANDUM OPINION AND ORDER
Defendant, Rohm and Haas Company, has moved for summary judgment or dismissal as
to all the remaining 107 named Plaintiffs in this case. In this Memorandum, the Court will
address two preliminary motions pertaining to a limited number of Plaintiffs.
First, Defendant urges dismissal of numerous Plaintiffs because they either failed to
appear for their depositions or failed to provide requested discovery. On January 23, 2013, this
Court held a status conference with regard to remaining discovery issues. In particular, the
Court specifically addressed three individuals who had failed to provide discovery and at least
six others who had failed to appear for their properly scheduled depositions. Although the Court
declined Defendant’s request to dismiss these individuals at that time, it did set a deadline of
February 4, 2013, for completion of all depositions and discovery.
That deadline has now passed and the individual Plaintiffs involved have not
appropriately complied with the discovery and deposition requests. Although Plaintiffs offer
some excuses for the failure, the Court does not believe that after literally years of litigation any
of these excuses are appropriate at this late date. Defendant has sufficiently detailed all of its
efforts to obtain depositions and discovery from the pertinent individuals. The Court concludes

that Defendant has extended every effort to obtain appropriate discovery and the Court has
allowed multiple extensions of time. Therefore, these claims should be dismissed.
Second, Defendant urges dismissal of six individual nuance claims on the grounds that
the particular Plaintiffs lack standing to assert those claims. To assert a private nuance claim
under Kentucky law a plaintiff must be a person who has an “ownership interest” or other
“possessory interest” in the property alleged to have been affected by the nuance in order to have
standing to bring the action. KRS 411.560(5). Pursuant to KRS 411.510(4), “ownership
interest” means “holding legal or equitable title to property in fee or in a life tenancy.”
“Possessory interest” means lawfully possessing property that does not include mere occupancy.
KRS 411.510(6). Thus, the concept of a possessory interest necessarily involves more than mere
occupancy. Arnoldt v. Ashland Oil, Inc., 412 S.E.2d 795, 803-04 (W.Va. 1991) (quoting Black’s
Law Dictionary 1049 (5th ed. 1979) and applying Kentucky law).
Defendant’s Memorandum details that each of the cited six individual Plaintiffs do not
have an ownership in the property upon which they claim a nuance. Based upon their responses
to discovery requests and deposition questions, it is quite clear that none of these six individuals
have standing to assert a nuance claim.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss all claims of Ronnie
Meredith, Hannah Meredith, Lisa Meredith, Murle Fuqua, Eric Cox, Ralph Burchett and Darline
Burchett are SUSTAINED and all their claims are DISMISSED WITH PREJUDICE for failure
to provide discovery or appear at their depositions.
IT IS FURTHER ORDERED that Defendant’s motion to dismiss the nuance claims of
Rocie Bendixen, Edward Humphrey, Jr., Michael Blair, David Lewis, David Watts and Gary

McGrew are SUSTAINED and those claims are DISMISSED WITH PREJUDICE.
The Court will consider Defendant’s remaining motion for summary judgment in due
course.

May 22, 2013

cc:

Counsel of Record