HIGGINS et al v. HUHTAMAKI OYJ et al

Filing 279

ORDER ON MOTION TO AMEND AND MOTION FOR JUDGMENT ON THE PLEADINGS denying 267 Motion for Judgment on the Pleadings; granting 271 Motion for Leave to File Fourth Amended Complaint By MAGISTRATE JUDGE JOHN C. NIVISON. (jwr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LAWRENCE HIGGINS, et al.,
Plaintiffs
v.
HUHTAMAKI, INC., et al.,
Defendants

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1:21-cv-00369-JCN

ORDER ON MOTION TO AMEND AND
MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiffs, homeowners in Fairfield, Maine, allege Defendants, which consist of the
operator of a paper mill in Waterville, Maine, and three chemical companies, are
responsible for contaminating their groundwater wells and property from per- and
polyfluoroalkyl substances (PFAS). (Complaint, ECF No. 1-1; Third Amended Complaint,
ECF No. 227.) Residual PFAS from the paper mill’s manufacturing processes were
allegedly discharged into surface water, onto lands, and into the wastewater system,
contaminating biosolids from the nearby water treatment facility, which biosolids were
then spread as fertilizer on agricultural fields near Plaintiffs’ homes, contaminating their
property and groundwater wells.
Plaintiffs seek leave to file a fourth amended complaint. (Motion to Amend, ECF
No. 271.) Because the motion to amend is consistent with the deadlines in the scheduling
order, and because Defendants do not oppose the proposed amendments, the Court grants
leave to amend the complaint. Defendants Solenis, BASF, and 3M (collectively “Supplier
Defendants”) argue that Plaintiffs have not alleged an actionable public nuisance claim

because they have not established a special injury separate from any injury suffered by the
general public. (Motion for Judgment on the Pleadings, ECF No. 267.) After consideration
of the parties’ arguments and the factual allegations in the operative complaint, the Court
denies the motion for judgment on the pleadings.
MOTION FOR LEAVE TO AMEND
Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a litigant to amend a
pleading “as a matter of course” subject to certain time constraints. However, when a party
seeks to amend a complaint more than 21 days after the filing of a responsive pleading, the
other party’s consent or leave of court is required in order to amend the complaint. Fed.
R. Civ. P. 15(a)(2). In such a case, the court is to grant leave to amend “freely” when
“justice so requires.” Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962) (“In the
absence of any apparent or declared reason—such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.—the leave sought should, as the rules require, be
‘freely given.’”).
Here, the amendments contained in the proposed fourth amended complaint, (ECF
No. 276-1), seek to (1) add additional similarly situated plaintiffs and (2) narrow certain
issues by clarifying that Plaintiffs do not seek personal injury damages as part of the claims
for relief. The motion to amend is consistent with the deadlines established in the
scheduling order, which contemplated amendments to add new plaintiffs. (Amended
Scheduling Order, ECF No. 260.)
2

Defendants do not oppose the substantive changes regarding personal injury
damages. The Supplier Defendants request that if the Court grants the motion to amend,
the Court consider the Supplier Defendants to have renewed the motion for judgment on
the pleadings as to the proposed fourth amended complaint. Because the legal issues raised
in the motion for judgment on the pleadings are the same whether considered as to the third
amended complaint or the proposed fourth amended complaint, the Supplier Defendants’
request serves the interests of judicial economy.
The Court grants motion for leave to file an amended complaint, and the Court
considers the proposed fourth amended complaint to be the operative pleading for purposes
of the motion for judgment on the pleadings.
MOTION FOR JUDGMENT ON THE PLEADINGS1
A.

Legal Standard
A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c)

is “ordinarily accorded much the same treatment” as a motion to dismiss for failure to state
a claim. Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006). To survive a Rule
12(c) motion, as with a 12(b)(6) motion, “a complaint must contain factual allegations that
‘raise a right to relief above the speculative level, on the assumption that all the allegations
in the complaint are true.’” Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir.
2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

1

The Court does not repeat the facts here because this Court’s prior order on the Supplier Defendants’
motion to dismiss contained a detailed recitation of the factual allegations. (Second Dismissal Order, ECF
No. 250.)

3

The proper time to file a motion for judgment on the pleadings is “[a]fter the
pleadings are closed.” Fed. R. Civ. P. 12(c). “‘[T]he pleadings are closed for the purpose
of Rule 12(c) once a complaint and answer have been filed.’” McGuigan v. Conte, 629 F.
Supp. 2d 76, 80 (D. Mass. 2009) (quoting Doe v. United States, 419 F.3d 1058, 1061 (9th
Cir. 2005)).
B.

Rule 12(g) and Requests for Reconsideration
Plaintiffs argue that the Supplier Defendants’ motion is prohibited under the raise-

or-waive provisions of Rule 12. The argument implicates the interrelated terms of Rule
12(b), (c), (g), and (h).
Rule 12(b) requires a party to raise all defenses in a responsive pleading, but it also
permits the assertion of seven enumerated defenses by motion before filing a responsive
pleading. Fed. R. Civ. P. 12(b)(1)–(7). A party asserting a Rule 12 motion “must not make
another motion under [Rule 12] raising a defense or objection” that it could have raised in
the earlier motion, “[e]xcept as provided in Rule 12(h)(2) or (3),” Fed. R. Civ. P. 12(g)(2),
and “[a] party waives any defense listed in Rule 12(b)(2)–(5)” by omitting it from a motion
as described in Rule 12(g)(2), or by failing to raise it by motion or include it in a responsive
pleading, Fed. R. Civ. P. 12(h)(1). Pursuant to Rule 12(h)(2), a party is permitted to raise
the defenses of “[f]ailure to state a claim upon which relief can be granted, to join a person
required by Rule 19(b), or to state a legal defense to a claim” in one of three ways: (1) “in
any pleading allowed or ordered under Rule 7(a);” (2) “by a motion under Rule 12(c),” or
(3) “at trial.” Fed. R. Civ. P. 12(h)(2). A Rule 12(c) motion allows a party to request

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judgment on the pleadings “after the pleadings are closed . . . but early enough not to delay
trial . . . .” Fed. R. Civ. P. 12(c). As one court explained:
The consequence of omitting a defense from an earlier motion under Rule 12
depends on [the] type of defense omitted. A defendant who omits a defense
under Rules 12(b)(2)–(5)—lack of personal jurisdiction, improper venue,
insufficient process, and insufficient service of process—entirely waives that
defense. A defendant who omits a defense under Rule 12(b)(6)—failure to
state a claim upon which relief can be granted—does not waive that defense.
Rule 12(g)(2) provides that a defendant who fails to assert a failure-to-statea-claim defense in a pre-answer Rule 12 motion cannot assert that defense in
a later pre-answer motion under Rule 12(b)(6), but the defense may be
asserted in other ways.
In re Apple iPhone Antitrust Litigation, 846 F.3d 313, 317–18 (9th Cir. 2017) (citations
omitted).
Plaintiffs’ argument fails for at least two reasons. First, the raise-or-waive rule of
Rule 12(g) and (h) does not apply here because it contains an exception for a post-answer
Rule 12(c) motion raising the failure to state a claim defense (which is reviewed under the
same standard as a pre-answer Rule 12(b)(6) motion).

The Supplier Defendants’

previously filed an answer, then later filed this motion pursuant to Rule 12(c), which
motion raises the alleged failure to state a claim defense, and the Court discerns no reason
that consideration of the motion would be expected to delay trial.2 In addition, the raise2

The Court also notes that other courts have permitted the discretionary consideration of successive preanswer Rule 12(b)(6) motions based on the availability of post-answer Rule 12(c) motions, even though the
successive motion did not technically fit within the Rule 12(h)(2) and (c) exception. See Jones v.
Montachusetts Reg'l Transit Auth., No. 22-1569, 2023 WL 9233970, at *2 (1st Cir. Nov. 30, 2023) (“[T]he
district court did not err in entertaining the [successive] motion to dismiss” because the label of the
subsequent motion “made no practical difference because the same standard of review applies to Rule
12(b)(6) and Rule 12(c) motions . . . .”); Fernau v. Enchante Beauty Prod., Inc., 847 F. App’x 612, 620
(11th Cir. 2021) (“[A] district court’s decision to consider a successive Rule 12(b)(6) motion to dismiss is
usually harmless, even if it technically violates Rule 12(g)(2). So long as the district court accepts all of
the allegations in the complaint as true, the result is the same as if the defendant had filed an answer
admitting these allegations and then filed a Rule 12(c) motion for judgment on the pleadings, which Rule

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or-waive rule contained in subsections (g) and (h) does not apply here because the
Defendants collectively did not omit the special injury issue from their pre-answer motions.
Rather, the Supplier Defendants now raise the same legal issue the other defendants
litigated before the Supplier Defendants were joined in the case.
The fact that some of the defendants previously raised the same issues and
arguments, however, presents a different concern.

Because the Court previously

considered and rejected the defendants’ request to dismiss the public nuisance claim based
on the special injury requirement, (First Dismissal Motion at 21, ECF No. 81), the Supplier
Defendants’ motion is in essence an untimely motion to reconsider the prior order. As one
court explained:
Defendants’ motion for judgment on the pleadings addresses matters
previously raised in their motion to dismiss, and decided—either explicitly
or by necessary implication—in the Court’s resolution of that motion. The
Court views this motion as an untimely request for reconsideration rather
than an independent motion for judgment on the pleadings that raises new
issues. While the Court is not barred from reexamining the issues raised in
the instant motion, see Fed. R. Civ. P. 54(b), the Court sees no reason to do
so. Judicial economy would be undermined by allowing parties an unlimited
right to revisit issues raised in Rule 12(b)(6) motions via Rule 12(c) motions.
Rule 12(g) and Rule 12(h)(2) allow a party to raise a failure to state a claim
in a Rule 12(c) motion without having waived the argument by failing to file
a motion prior to answering the complaint. They do not provide an unfettered
grant to seek reconsideration of arguments already raised and lost in a
previous Rule 12(b)(6) motion.
In re Toyota Motor Corp. Securities Litigation, No. CV 10-922 DSF AJWX, 2012 WL
3764903, at *1 (C.D. Cal. Feb. 21, 2012).

12(h)(2)(B) expressly permits”) (internal quotation marks omitted) (quoting Leyse v. Bank of Am. Nat.
Ass’n, 804 F.3d 316, 321–22 (3d Cir. 2015) and citing Albers v. Bd. Of Cty. Comm’rs of Jefferson Cty., 771
F.3d 697, 703–04 (10th Cir. 2014)).

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Given that the granting of a motion for reconsideration is an extraordinary remedy
which should be used sparingly “[u]nless the court has misapprehended some material fact
or point of law, such a motion is normally not a promising vehicle for revisiting a party’s
case and rearguing theories previously advanced and rejected.” Palmer v. Champion
Mortgage, 465 F.3d 24, 30 (1st Cir. 2006). Ordinarily, “[t]o succeed on a motion for
reconsideration, the moving party generally must show (1) an intervening change in the
controlling law; (2) the need to correct a clear error of law; or (3) newly discovered
evidence not available to the court when the order was issued.” SEC v. Commonwealth
Equity Services, LLC, No. 1:19-CV-11655-IT, 2024 WL 758171, at *1 (D. Mass. Feb. 23,
2024).
The only new argument the Supplier Defendants raise is a recent decision of the
Maine Business and Consumer Court dismissing a public nuisance claim based on the
special injury requirement: Saunders v. Sappi North America, Inc., No. BCD-CIV-202300033, 2024 WL 1908964 (Me. B.C.D. Jan. 2, 2024). Because state trial court decisions
represent at most persuasive authority rather than controlling authority, reconsideration is
not warranted based on the mere fact that there may be some tension between the Court’s
prior order and a more recent decision of a state trial court. See Sheffer v. US Airways,
Inc., No. 3:15-CV-00204-RCJ, 2015 WL 4276239, at *3 (D. Nev. July 14, 2015) (finding
there was no manifest error because “there is no controlling authority and only very sparse,
ambivalent persuasive authority available on the question. . . Nor does a state trial court’s
ruling qualify as an intervening change in law . . . .”). Furthermore, after considering the
Supplier Defendants’ arguments anew, and after reviewing the Saunders decision, see infra
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Part C, the Court concludes the prior decision denying the request to dismiss the public
nuisance claim was not based on an error of law warranting reconsideration.
C.

The Public Nuisance Claim
1.

The Special Injury Element

A public nuisance is an “unreasonable interference with a right common to the
general public.” Restatement (Second) of Torts § 821B. Public officials can pursue legal
action to abate a public nuisance, but other persons only have a cause of action if the person
has “suffered harm of a kind different from that suffered by other members of the public
exercising the right common to the general public that was the subject of interference.”
Restatement (Second) of Torts § 821C; see also Brown v. Watson, 47 Me. 161, 162 (1859)
(there is no individual cause of action unless a person “has suffered therefrom some special
and peculiar damages other and greater than those sustained by the public generally.”).
The special damages need not be of great magnitude so long as they result from “injuries”
or “pecuniary loss” to the plaintiff’s “person or property.” Charlton v. Town of Oxford,
2001 ME 104, ¶¶ 27, 31, 774 A.2d 366, 375–76 (“For an injury to a particular person, as
by a common nuisance, no matter how inconsiderable the injury, he may maintain an
action.”) (quoting Brown, 47 Me. at 164); see also Smedberg v. Moxie Dam Co., 148 Me.
302, 307, 92 A.2d 606, 608 (1952) (“There must be an infringement of the plaintiff’s
private rights to permit recovery . . . .”).
The effect of the special injury element is that the factual circumstances generating
a public nuisance claim actionable by a nonstate actor are often “identical” or “are
analogous” to the circumstances generating a cause of action for a private nuisance.
8

Simmons, Zillman, and Furbish, Maine Tort Law § 14.03.3 The typical utility in a nonstate
actor’s public nuisance action is that the relevant interest and interference need not relate
to the plaintiff’s land and can therefore provide a remedy when one or both parties use the
resource but someone else (or no one else) is the owner. See, e.g., Burgess v. M/V Tamano,
370 F. Supp. 247, 250 (D. Me. 1973) (“Since the fishermen and clam diggers have no
individual property rights with respect to the waters and marine life allegedly harmed by
the oil spill, their right to recover in the present action depends upon whether they may
maintain private actions for damages based upon the alleged tortious invasion of public
rights which are held by the State of Maine in trust for the common benefit of all the
people.”).

3

The elements of a common law private nuisance claim are:
(1) The defendant acted with the intent of interfering with the use and enjoyment of the
land by those entitled to that use;
(2) There was some interference with the use and enjoyment of the land of the kind
intended, although the amount and extent of that interference may not have been
anticipated or intended;
(3) The interference that resulted and the physical harm, if any, from that interference
proved to be substantial. The substantial interference requirement is to satisfy the need for
a showing that the land is reduced in value because of the defendant’s conduct;
(4) The interference that came about under such circumstances was of such a nature,
duration or amount as to constitute unreasonable interference with the use and enjoyment
of the land.

West v. Jewett & Noonan Transportation, Inc., 2018 ME 98, ¶ 14, 189 A.3d 277, 281–82 (quotation marks
and modification omitted). The intent element “mean[s] only that ‘the defendant has created or continued
the condition causing the interference with full knowledge that the harm to the plaintiff’s interests are
occurring or are substantially certain to follow.” Johnston v. Maine Energy Recovery Co. Partnership,
2010 ME 52, ¶ 15, 997 A.2d 741, 745 (quoting Charlton, 2001 ME 104 ¶ 37 n.11). A plaintiff can prove
substantial interference in several ways, such as (1) an invasion that “affects the physical condition” of the
property or involves “more than ‘mere physical discomfort or mental annoyance,’” West, 2018 ME 98 ¶¶
15–16, 189 A.3d at 282, (2) overall market value depreciation, (3) a reduced magnitude of appreciation, or
(4) repair costs. Darney v. Dragon Prod. Co., LLC, 771 F. Supp. 2d 91, 109 (D. Me. 2011), amended in
part, No. 2:08-CV-47-GZS, 2011 WL 2007300 (D. Me. May 23, 2011).

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The reasons usually given for the [special injury] rule are that it is essential
to relieve the defendant of the multiplicity of actions that might follow if
everyone were free to sue for the common wrong; and that any harm or
interference shared by the public at large will normally be, if not entirely
theoretical or potential, at least minor, petty and trivial so far as the individual
is concerned.
Restatement (Second) of Torts § 821C cmt. a. (1979).
2.

The Classic Fact Pattern: Obstructing a Public Way

As the result of line drawing challenges and tension between competing principles
governing nonstate actors’ public nuisance actions,4 courts often analogize to a few classic
factual scenarios. See (First Dismissal Order at 19 (“A highway obstruction is a classic
example that illustrates the point.”); Demmons v. ND OTM LLC, No. 1:22-CV-00305-NT,
2023 WL 5936671, at *7 (D. Me. Sept. 12, 2023) (“Just what constitutes ‘special and
peculiar’ damages, has proven to be slipperier than an eel in an oil spill . . . . Here, I must
apply Maine law, and a brief trip through Maine’s public nuisance case law provides the

4

See, e.g., Restatement (Third) of Torts: Liab. for Econ. Harm § 8 (2020) (“What injuries are ‘special,’ or
‘distinct in kind,’ is unavoidably a matter of judgment rather than rule.”); Burgess, 370 F. Supp. at 250
(“Concededly, the line between damages different in kind and those different only in degree from those
suffered by the public at large has been difficult to draw.”). As the Law Court once summarized:
It is held that the particular injury is one not merely greater in degree but different in kind.
But it has also been held that a private action is not to be defeated by the fact that others
suffer a similar particular injury.
The mere fact that a person is delayed or compelled to take a circuitous route by an
obstruction in the highway does not necessarily constitute special damages. But where an
individual suffers expensive delay or substantial pecuniary loss in traveling or transporting
goods, it may be a particular damage for which he has a right of action.
The reason for the rule which denies an action to an individual for a common nuisance is
that it would cause such a multiplicity of suits as to be itself an intolerable nuisance. But
with equal justice it was said [that] “[i]f [people] will multiply injuries, actions must be
multiplied too, for every [person] that is injured ought to have [] recompense.”
Smart v. Aroostook Lumber Co., 103 Me. 37, 68 A. 527, 532–33 (1907) (citations omitted).

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guiding principles required to analyze this case.”); Barnes v. Hathorn, 54 Me. 124, 126–
27 (1866) (for public nuisance claims “it is useful to examine the whole range of
authorities, to extract, if possible, the true principles applicable to the subject.”).
The obstruction of a public way—such as a highway or navigable water—is a public
nuisance because it interferes with the “equal right [of] each citizen to their reasonable
use.” Smart v. Aroostook Lumber Co., 103 Me. 37, 68 A. 527, 531 (1907). A plaintiff who
does not allege that he or she “attempted to use the passage” and was compelled to make a
burdensome detour or “had been put to [a significant] expense” has not suffered an injury
different than the general public, Tuell v. Inhabitants of Marion, 110 Me. 460, 86 A. 980,
981 (1913); see also Holmes v. Corthell, 80 Me. 31, 12 A. 730, 731 (1888), but a plaintiff
who attempted to use the obstructed way and actually suffered a significant delay or
expense, Brown, 47 Me. at 163,5 or who was reliant on the obstructed portion of the way
for “egress and ingress to her premises,” can establish a special injury not equivalent to
that of the general public, Cobe v. Banton, 106 Me. 418, 76 A. 907, 909 (1910); see also
Yates v. Tiffiny, 126 Me. 128, 136 A. 668, 669 (1927). As the Law Court observed:
The mere fact that a person is delayed or compelled to take a circuitous route
by an obstruction in the highway does not necessarily constitute special
damages . . . [b]ut where an individual suffers expensive delay or substantial
5

Many jurisdictions consider mere delay or inconvenience to be too similar to the kind of harm suffered by
the broader public, see Restatement (Second) of Torts § 821C cmt. i. (1979) (“The delay or inconvenience
suffered by a particular plaintiff, even though it may be greater in degree, is not particular harm of a different
kind and will not support an action for the public nuisance.”), but Maine law evidently represents a more
permissive approach. There does not appear to be any authority casting doubt on the rule from Brown v.
Watson. On the contrary, the case has been cited regularly in recent decades in state courts. See, e.g.,
Charlton, 2001 ME 104 ¶ 27 (“For an injury to a particular person, as by a common nuisance, no matter
how inconsiderable the injury, he may maintain an action.”) (quoting Brown, 47 Me. At 164); Drake v. City
of Portland and 142 Presumpscot, LLC, No. AP-04-035, 2005 WL 6750122 (Me. Super. Ct. May 27, 2005)
(“The leading Maine decision on the meaning of special damage is Brown v. Watson.”).

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pecuniary loss in traveling or transporting goods, it may be a particular
damage for which [the person] has a right of action.
Smart, 68 A. at 533 (finding special damages because the “obstruction of the river not only
obstructs [the plaintiff’s] right in common with others to pass up and down the river, but
cuts off his right of access to his private property.”).
3.

Typical Categories of Special Injuries

“An interference with the enjoyment and value of a person’s private property rights
is a special injury” for purposes of a nonstate actor’s public nuisance action. 58 Am. Jur.
2d Nuisances § 190. In addition to an obstruction to a public way that blocks access to
private land, courts have found special injuries when a harmful substance spilled into a
public water and from there onto certain plaintiffs’ land, Burgess, 370 F. Supp. at 249
(“[T]he Court holds that the motions to dismiss the claims of . . . the Old Orchard Beach
businessmen . . . who owned shore property physically injured by the spill” must be
denied), and when mine tailings contaminated a river rendering the water unfit for
continued irrigation of a lower riparian user’s farmland, Arizona Copper Co. v. Gillespie,
230 U.S. 46, 52, 57(1913). On the other hand, a mere “aesthetic injury” to a landowner
from another user’s exercise of the same public right is insufficient. Charlton, 2001 ME
104 ¶ 33 (discussing Whitmore v. Brown, 102 Me. 47, 57, 65 A. 516, 520 (1906)).6

6

The case of Smedberg v. Moxie Dam Co., 148 Me. 302, 92 A.2d 606 (1952), might be instructive. In a
public nuisance suit against a dam operator which had allegedly harmed the fishing in the lake by repeatedly
causing the water level to fluctuate from extreme low to extreme high, the Law Court found no special
injury to nearby camp owners who frequently used the lake and rented property to people attracted to the
lake but who did not own shore property. Id. at 309–10 (“Loss in value from damage to the fishing is not
peculiar to the plaintiff. The private camps in the region doubtless are worth less for the same reason. The
guide, the storekeeper, and all business men whose livelihood depends in any part upon the lure of fishing,
suffer no less than the plaintiff. The injury to each is identical in kind.”). The Smedberg Court did not

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It is also well established that “[w]hen the public nuisance causes personal injury to
the plaintiff . . . the harm is normally different in kind from that suffered by other members
of the public and the tort action may be maintained.” Restatement (Second) of Torts
§ 821C cmt. d. (1979); see also Smart, 68 A. at 533 (“[A]pplication of the [special injury]
principle is obvious . . .where an individual suffers physical injury [or] injury to his horse
or carriage.”); Larson v. New England Tel. & Tel. Co., 141 Me. 326, 329, 342 44 A.2d 1,
3, 8–9 (1945) (special damages element was satisfied when the defendant temporarily
repaired an excavation with gravel, creating a depression in a roadway after a time, and
when the plaintiff’s “car struck the depression caused by the displaced gravel, the car
skidded and overturned.”).
In contrast, courts are less likely to find a special harm based only on fear, subjective
concerns, or a diffuse risk of harm that does not actually result (or is not reasonably certain
to result) in significant physical injury to the individual. See Palmer v. Amazon.com, Inc.,
51 F.4th 491, 513 (2d Cir. 2022) (somewhat increased “generalized risk of contracting
COVID-19” was insufficient); Guttmann v. Nissin Foods (U.S.A.) Co., Inc., No. C 1500567 WHA, 2015 WL 4309427, at *6 (N.D. Cal. July 15, 2015) (“There is no allegation
that [Plaintiff] suffered a specific personal injury” as opposed to a mere “increased risk of
harm allegedly suffered by all consumers” of food products containing trans fats); San
Francisco Herring Ass’n v. Pac. Gas & Elec. Co., No. 14-CV-04393-WHO, 2019 WL

imply, however, that the same analysis would necessarily govern if one of the plaintiffs had owned property
on the shore of the lake. Id. at 305 (declining to address “what rights, if any, in fishing or a public landing
may belong to owners of shore property on our great ponds” because “[t]he plaintiff’s hotel and camps are
not on the shore.”).

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11073502, at *4 (N.D. Cal. July 26, 2019) (finding no special injury from allegation that
plaintiff was “suffering from heightened anxiety and stress stemming from his fear that he
is at increased risk of health problems after living for so long in the vicinity of the alleged
contamination.”); Sullivan v. Chief Just. for Admin. & Mgmt. of Trial Ct., 448 Mass. 15,
34, 858 N.E.2d 699, 715 (2006) (finding no special injury based on allegation that
employees of courthouse who alleged “they have been unduly exposed to asbestos fibers
over a long period of time, putting them at higher risk for mesothelioma,” but who did not
suffer from mesothelioma).7
“Pecuniary loss to the plaintiff resulting from the public nuisance is normally a
different kind of harm from that suffered by the general public.” Restatement (Second) of
Torts § 821C cmt. h. (1979); Charlton, 2001 ME 104 at ¶ 31 (finding no special injury in
part because there was nothing “to establish that they have suffered any pecuniary loss.”).
Scenarios in which Maine courts have found pecuniary or economic loss include when
someone must incur additional expenses to avoid an obstruction to a public way, see Tuell
v. Inhabitants of Marion, 110 Me. 460, 86 A. 980, 982 (1913), or when a business loses

7

The decision in Foley v. H.F. Farnham Co., 135 Me. 29, 188 A. 708 (1936) might also be instructive.
When analyzing a public nuisance claim brought by two pedestrians who were walking on a street, stopped
to rest at a business entryway, and a large sign above the door fell and injured them, the Law Court
acknowledged that “[t]he maintenance on private property of a dangerous menace to public travel” would
constitute a public nuisance, and the Law Court hypothesized that “had plaintiffs been walking, or standing
near the edge of the street” at the time the sign fell, “the falling sign might have done them damage” and
presumably satisfied the special injury requirement to generate a public nuisance claim. Id. at 710. The
Law Court evidently did not find a special injury based on the unrealized risk of physical harm the two
plaintiffs experienced when they were “traveler[s] on a public way,” and the physical injuries they
eventually did suffer were not enough because the injuries did not occur until several minutes after the
plaintiffs had left the public way to become trespassers on private property. Id. at 711; see also Restatement
(Second) of Torts § 368 cmt. e.–h. (1965).

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significant profits because an obstruction to the public way prevented the business from
operating for a prolonged period, see Dudley v. Kennedy, 63 Me. 465, 467 (1874), or when
an “established business” is based on the “commercial use” of the exercise of the public
right impaired by the nuisance. Restatement (Second) of Torts § 821C cmt. h.; see also
Burgess, 370 F. Supp. at 250 (“[A] man engaged in commercial fishing or clamming, and
dependent thereon for his livelihood” suffered special injury from an oil spill); Wyman v.
United States Surgical Corp., No. 1:18-CV-00095-JAW, 2020 WL 1932338, at *50 (D.
Me. Apr. 21, 2020) (a lobster and crab fisherman could recover based on public nuisance
from mercury pollution of a river if he could establish with evidence “beyond the
speculative” that the resulting fishing closures caused business economic losses).
In contrast, it is not enough to show only secondary or attenuated harms to a business
further removed from the public right, such as by reduced demand for service industries
when fewer people are attracted to use the public resource. See Burgess, 370 F. Supp. at
251 (other “businessmen do not assert any interference with their direct exercise of a public
right. They complain only of loss of customers indirectly resulting from alleged pollution
of the coastal waters and beaches in which they do not have a property interest. Although
in some instances their damage may be greater in degree, the injury of which they
complain, which is derivative from that of the public at large, is common to all businesses
and residents of the Old Orchard Beach area.”); Smedberg, 148 Me. At 309–10 (“Loss in
value” for a business supporting people drawn to a lake to fish “is not peculiar to the
plaintiff. The private camps in the region doubtless are worth less for the same reason. The
guide, the storekeeper, and all business men whose livelihood depends in any part upon the
15

lure of fishing, suffer no less than the plaintiff.”); Demmons, 2023 WL 5936671 at *10
(“Smedburg and Burgess teach that pecuniary loss is sufficient if it flows directly from the
violation of the public right, but it will not suffice if it is suffered derivatively or
indirectly.”).
4.

Other Pollution Cases

When nonstate actors have brought public nuisance claims based on chemical
pollution, courts have applied with different results the three categories of common special
injuries discussed above (harm to property, personal injuries, and pecuniary harm). The
reasoning of courts in some analogous cases persuades the Court that Plaintiffs have
plausibly alleged the requisite special injury.
In Anderson v. W.R. Grace & Co., 628 F. Supp. 1219 (D. Mass. 1986), individuals
who had contracted leukemia and other illnesses and family members of those individuals
brought public nuisance claims based on the contamination of two public municipal
groundwater wells with chemicals, including trichloroethylene and tetrachloroethylene. Id.
at 1222. Because “[t]he right to be free of contamination to the municipal water supply is
clearly a right common to the general public,” interference with that right was a public
nuisance, and the plaintiffs established a special injury because “injuries to a person’s
health are by their nature ‘special and peculiar’ and cannot properly be said to be common
or public,” and because the plaintiffs plausibly “suffered a variety of illnesses as a result of
exposure to the contaminated water.” Id. at 1233.
Because the defendants had already ceased releasing the pollution and the public
groundwater wells had closed before the lawsuit, a claim for expenses for abating the
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ongoing nuisance and an injunction for those plaintiffs still living in the municipality were
inappropriate remedies because they “would not mitigate” the personal injuries and
because “the existing groundwater contamination in [the municipality] and under their
property” did not represent an “actual detrimental effect on plaintiffs’ use or enjoyment of
their land.” Id. In other words, the plaintiffs “ha[d] not claimed any loss of property
value,” and the “abstract claim of a threat and invasion by the contaminated groundwater
is not the required harm to their use and enjoyment of their property.” Id. The Anderson
court noted that the plaintiffs “claim no contact” with the existing groundwater under the
town that might still be contaminated, and the plaintiffs had “cited no case in which the
mere introduction of foreign material into the ground” constituted a special injury. Id.
In Guidi v. Jordan, No. CIV.A. CV-01-198, 2003 WL 21384624 (Me. Super. Ct.
May 14, 2003), after the number of abandoned vehicles on neighboring land significantly
increased, landowners sued for public nuisance against the neighbor who operated an
automobile graveyard. Id. at *1. Both parcels had frontage on a river and used the same
sand and gravel groundwater aquifer. Id. The plaintiffs had ceased using their well water,
tests of the plaintiffs’ soil and well water found glycol from antifreeze and petroleum
products like Methyl tert-butyl ether (MTBE) and diesel range organics (DROs), and in the
opinion of a real estate broker, the value of the plaintiffs’ property was negatively impacted
by $21,500. Id. The court concluded that the facts established nonspeculative peculiar
damages. Id. at 2–3 (the plaintiffs had made sufficient showing that the public nuisance
“injured the plaintiffs differently than it has the community at large”); see also Lewis v.
Gen. Elec. Co., 37 F. Supp. 2d 55, 61 (D. Mass. 1999) (reduced land value or inability to
17

sell land due to contamination from polychlorinated biphenyls (PCBs) constituted special
injury).
Other courts have concluded that a special injury has occurred when a plaintiff
reasonably incurs substantial economic costs responding to or mitigating their exposure to
the spread of pollution in a public resource. See Ryan v. Greif, Inc., No. 22-CV-40089MRG, 2023 WL 8828220, at *15 (D. Mass. Dec. 21, 2023) (individuals who either: (1)
owned land within the relevant area which was supplied by a well contaminated with
PFAS; or (2) owned land that received compost contaminated with PFAS; “are property
owners who have sustained the ‘special harm’ of needing to decontaminate their properties
from PFAS.”); Johnson v. 3M, 563 F. Supp. 3d 1253 (N.D. Ga. 2021) (finding special harm
from having to “pay the added costs of attempting to remove PFAS contamination” from
the water supply); City of Portland v. Boeing Co., 179 F. Supp. 2d 1190, 1193, 1200 (D.
Or. 2001) (when the plaintiff learned that nearby groundwater had been contaminated with
TCE, to prevent the spread into the plaintiff’s wells, the plaintiff had to reduce utilization
of well field and participate in a joint monitoring program).
5.

The First Dismissal Order, Saunders and Hanlin

In June 2022, in the prior order addressing the original defendants’ motion to
dismiss, the Court denied the motion as to the public nuisance claim because Plaintiffs
alleged special injury involving the “need to decontaminate their properties and water”
based on the presence of hazardous levels of PFAS. (First Dismissal Order at 20–21 (citing
Johnson, 2021WL 4745421 at * 62–63)). For the reasons discussed herein, this Court finds
no error in that conclusion. When attempting to show an injury that is different from that
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of the public at large, it is likely insufficient to allege only aesthetic concerns,8 the shared
desire for a clean environment,9 or a diffuse risk of harm from the ubiquitous exposure
through air, water, or food to some concentration of a concerning chemical.10 For example,
Plaintiffs’ alleged “worry and anxiety over their current and future health,” (Fourth
Amended Complaint ¶ 91), without more, would be difficult to characterize as a harm that
is different in kind from the injuries of the public at large from the widespread use of PFAS.
Plaintiffs, however, allege much more than that. Plaintiffs allege invasion of their private
property interests in the form of significantly contaminated dust or soil and polluted
groundwater wells on their land; diminished property values; and economic losses from
the choice of either remediating their soil and wells or face the loss of the use their land
and groundwater for agricultural purposes. The fourth amended complaint, therefore, not
only satisfies the special injury requirement based on one form of special injury but
arguably satisfies multiple categories of special injuries recognized under Maine law.
Contrary to the Supplier Defendants’ contention, the Maine state trial court decision
in Saunders does not dictate a different conclusion. In Saunders, the court dismissed the

8

See Charlton, 2001 ME 104, ¶¶ 32–34.

9

See Anderson, 628 F. Supp. at 1233.

10

For instance, in Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88 (4th Cir. 2011), the court granted
summary judgment in favor of the defendant on PFAS pollution claims where the plaintiff claimed that
“[m]easurable quantities of PFOA have been detected” in the municipal water supply and that “PFOA also
has accumulated in the plaintiffs’ blood and has been detected in the homes of other customers.” Id. at 92.
In that case, the plaintiffs could not assert property interference because the case did not involve privately
owned wells, and the plaintiffs did not assert substantial pecuniary losses due to necessary remediation
efforts. The case is akin to those discussed above that involve only a broad and unrealized risk of personal
injury, as opposed to a concrete injury or disease or some other special injury.

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public nuisance claims which were contained in a complaint against PFAS suppliers and
which complaint included many allegations similar to Plaintiffs’ operative complaint in
this case. Saunders, 2024 WL 1908964, at *8. The court reasoned that “[c]ertainly, [the
p]laintiffs allege that they endured harm to a greater degree than that suffered by the general
public, for example by neighboring landowners who have no well installed on their
property or whose property is topographically ill-suited for collection of water” but “[the
p]laintiffs’ alleged injuries are not ‘different in kind’ than those suffered by the public at
large.” Id.
The Saunders court included two bases for its conclusions: (1) it cited Hanlin Grp.,
Inc. v. Int’l Minerals & Chemicals Corp., 759 F. Supp. 925, 935-36 (D. Me. Sept. 7, 1990),
for the proposition that “harm suffered from exposure, loss in property value, or loss of the
ability to use and enjoy one’s property that resulted from mercury discharged into a
waterway were neither special nor peculiar relative to any injury to the general public;”
and (2) it noted that “[e]ven if Plaintiffs need to engage in remediation, as they allege,
remediation goes to degree, not special injury,” meaning that “[a]llowing the claim of
public nuisance to turn on remediation would convert every claim of public nuisance into
a private nuisance.” Id. (internal citations omitted). This Court is not persuaded that the
Saunders reasoning and result should govern here. In the Court’s view, such an approach
would require on a broad reading of the Hanlin decision and would be inconsistent with

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the principles distilled from the Law Court’s decisions and other persuasive authority
discussed above.11
In Hanlin, the court considered “whether either response costs or loss of enjoyment
and use of land alleges a distinct harm suffered in the exercise of a public right” and
concluded that the allegations in that case did not satisfy the special injury requirement.
Hanlin, 759 F. Supp. at 936. The court also noted that “the special injury requirement
would be rendered meaningless if every plaintiff could merely allege injury to the use and
enjoyment of its property when such an allegation does not distinguish between injuries
distinct from those suffered by the public generally and losses which are derivative of the
loss suffered by the public at large.” Id. at 937 n.15. Notably, the court’s observations
were made in the context of a specific set of facts: a landowner’s lawsuit for public nuisance
against the previous owner of the land the plaintiff had purchased, and although the
predecessor had also polluted a public resource, the plaintiff’s property was not exposed to
chemicals via the public resource, but rather was contaminated by chemicals originating
on the very same property. See id. at 935 (applying nuisance law to a claim “between
vendor and vendee” following the purchase of certain factories).
One of the cases upon which the court in Hanlin relied was Philadelphia Elec. Co.
v. Hercules, Inc., 762 F.2d 303 (3d Cir. 1985), where the Third Circuit reasoned as follows:

11

Under the reading of Hanlin urged by the Supplier Defendants, a plaintiff would likely be unable to
establish a special injury in any pollution case, yet courts in this district have recognized such claims both
before and after Hanlin. See Burgess, 370 F. Supp. at 249 (denying motion to dismiss public nuisance
claims of business owners who owned shore property contaminated by oil discharged into waterway);
Demmons, 2023 WL 5936671 at *10 (finding special injury from release of pollution into air when it
impacted private rights as landowners and diminished property value).

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The public right that was interfered with was the right to “pure water”. [The
plaintiff] does not allege that it used the waters of the Delaware River itself,
or that it was directly harmed in any way by the pollution of those waters. If
[the plaintiff]—as a riparian landowner—had suffered damage to its land or
its operations as a result of the pollution of the Delaware, it would possibly
have a claim for public nuisance. But the condition of the Chester site was
not the result of the pollution, it was the cause of it.
Id. at 316 (citations omitted).
Because Hanlin involved the question of the plaintiff’s ability to assert a nuisance
claim against the prior owner of the plaintiff’s property, the analysis is not directly
applicable in this case where the alleged harms flow directly through the public resources.
Hanlin, therefore, does not alter the persuasiveness of the analyses in the cases discussed
in preceding sections of this order. To the extent that dicta in the First Dismissal Order
arguably endorsed a broad reading of Hanlin, more recently, acknowledging the
circumstances presented in Hanlin, the author of the First Dismissal Order declined to
adopt the interpretation of Hanlin that the Supplier Defendants encourage this Court to
adopt:
[In Higgins v. Huhtamaki,] [a]s I laid out the law, I cited Hanlin for the
proposition that “losses in property value or the right to use and enjoy one’s
property” are not special injuries. I should not have spoken so broadly.
Although the court in Hanlin found that the plaintiff’s claim of diminution
of property value and impairment of the right to use its property did not meet
the special injury requirement, that conclusion was based on the fact that
Hanlin did not allege that it was injured while exercising the public right.
(citations omitted).
Demmons, 2023 WL 5936671 at *10 (finding special injury from impacted private rights
and diminished property values because the “path from the Defendant’s emissions to the

22

Plaintiff’s harm is direct and not derivative” and because the harms occurred “while
exercising the public right”).12
In sum, (1) this Court discerns no basis to reconsider the Court’s prior ruling on the
request to dismiss Plaintiffs’ public nuisance claim and (2) even if this Court were to
reconsider the decision and assess the relevant issues, the Court would deny the Supplier
Defendants’ motion for judgment on the pleadings.
CONCLUSION
Based on the foregoing analysis, the Court grants Plaintiffs’ motion for leave to
amend and denies the Supplier Defendants’ motion for judgment on the pleadings.
Plaintiffs shall file their amended complaint within seven days of the date of this order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 30th day of August, 2024.

12

The relevant statements in the prior order that seemingly relied on a broad reading of Hanlin were:
Examples of harm that are not special injuries are harms suffered from exposure to
mercury, or losses in property value or the right to use and enjoy one’s property.
...
Most of the damages that the Plaintiffs have suffered are not atypical. Their contaminated
water and the harms that have directly flowed from that (e.g., the health consequences and
effects on farming) are common to the general public and differ only in terms of degree.
Although the Plaintiffs emphasize the uneven contamination of the well water, that is not
a special harm. All area wells are at risk, and the fact that some wells are contaminated
more than others (including some that are not contaminated at all) is not a difference in the
kind of harm suffered but only in the degree of harm suffered.

(First Dismissal Order at 19–20). This Court does not consider the statements to support Plaintiff’s request
for dismissal because they were arguably dicta given that the Court denied the motion and did not dismiss
any aspect of the claim, and because the Court subsequently adopted a reading of Hanlin that is consistent
with the principles discussed in the preceding sections of this order.

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