King v. Cole's Poultry, LLC et al

Filing 423

ORDER denying 257 Motion to Sever. Signed by District Judge Michael P. Mills on 12/13/2016. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JAMES E. KING, SR., et al.

PLAINTIFFS

v.

Civil Action No.: 1:14-cv-00088-MPM-DAS

COLE’S POULTRY, LLC, et al.

DEFENDANTS
ORDER

This cause comes before the Court on defendant Peco Foods, Inc.’s (“Peco”) Motion to
Sever [257]. Plaintiffs filed a response in opposition to the motion [353], to which Peco filed a
reply [391]. Having reviewed the parties’ submissions, along with relevant evidence and
authorities, the Court is prepared to rule.
I.

Relevant Factual and Procedural Background

Cole’s Poultry, LLC (“Cole’s”), Skeels Poultry, LLC (“Skeels”), and Peco are engaged in
broiler chicken operations, utilizing confined chicken facilities in Monroe County, Mississippi,
to raise chickens for meat production. Under their arrangement, Peco, an Alabama corporation,
supplies the chickens to Cole’s and Skeels, who actually operate the Monroe Country facilities.
While Cole’s and Skeels operate the facilities, Peco maintains an extensive amount of authority
over the chicken growing process and the day-to-day operations of the facilities.
This action commenced on July 20, 2011, when fifty-seven1 residents of Monroe County,
Mississippi (collectively “Plaintiffs”), filed their complaint against Cole’s, Skeels, and Peco.
Plaintiffs filed their suit in the Circuit Court of Monroe County, Mississippi, alleging that the
defendants’ confined chicken facilities located in close proximity to Plaintiffs’ homes and
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The Court notes that the parties have stated a different number of plaintiffs in multiple filings
with the Court. Multiple plaintiffs have been dismissed and/or substituted throughout the course
of the litigation. However, in the initial filing in the Circuit Court of Monroe County,
Mississippi, there were fifty-seven plaintiffs.
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properties interfere with their ability to use and enjoy their properties. Specifically, Plaintiffs
allege that “[t]he foul, noxious, and potentially dangerous odors emanating from these chicken
facilities, as well as millions of flies and other potentially harmful emissions have impaired
Plaintiffs’ ability to use and enjoy their properties and have caused substantial damage to their
quality of life.”
Cole’s and Skeels were eventually dismissed from the action, leaving Peco as the sole
defendant. On November 27, 2013, Peco removed the action to this Court based upon diversity
jurisdiction. In the third amended complaint, Plaintiffs assert against Peco causes of action for
temporary and continuing nuisance, negligence, and negligent entrustment. On November 29,
2016, the Court granted Peco’s omnibus motion for summary judgment as to the negligent
entrustment claim but denied their motion as to all other claims. Thus, Plaintiffs’ negligence and
nuisance claims remain pending.
Now before the Court is Peco’s motion to sever. In the motion, Peco argues Plaintiffs’
claims were fraudulently joined and thus should be severed and tried separately. Plaintiffs
responded in opposition, and Peco filed a reply. Upon due consideration of these submissions, in
addition to relevant case law and evidence, the Court finds that Peco’s motion should be denied.
II.

Conclusions of Law

To determine whether Plaintiffs’ claims were fraudulently misjoined, the Court looks to
the Mississippi Rules of Civil Procedure. Cooper v. AIG Claim Servs., Inc., 2009 WL 279101, at
*2 (N.D. Miss. Feb. 5, 2009) (“In a removed case, questions of ‘fraudulent misjoinder’ are
determined by the state’s joinder rules.”).2 The Mississippi Supreme Court has recognized that

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Historically, there was a split of authority within the Mississippi federal courts as to whether
the Federal Rules of Civil Procedure or Mississippi Rules of Civil Procedure should apply in
determining questions of fraudulent joinder. While this distinction will often not affect the result
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trial courts maintain “broad discretion in determining when and how claims are tried” under the
Mississippi Rules. First Investors Corp. v. Rayner, 738 So.2d 228, 238 (Miss. 1999). Rule 20 is
the particular rule at issue in resolving questions of fraudulent misjoinder. Tri-Miss. Servs. Inc.
v. Fairley, 2012 WL 5611058, at *3 (S.D. Miss. Nov. 15, 2012) (“To determine if a party has
been fraudulently misjoined, the court applies Rule 20 of the Mississippi Rules of Civil
Procedure.”).
In pertinent part, Rule 20 provides:
All persons may join in one action as plaintiffs if they assert any right to relief
jointly, severally, or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences, and if any
question of law or fact common to all these persons will arise in the action.
MISS. R. CIV. P. 20(a). Thus, in order for joinder to be proper under Rule 20, two criteria must
be satisfied: (1) that the plaintiffs “assert any right to relief jointly, severally, or in the
alternative” which “aris[e] out of the same transaction, occurrence, or series of transactions or
occurrences”; and (2) that “any question of law or fact common to all these persons will arise in
the action.” Id. (emphasis added). The comment to Rule 20 states in part:
The phrase “transaction or occurrence” requires that there be a distinct litigable
event linking the parties. Rule 20(a) simply establishes a procedure under which
several parties’ demands arising out of the same litigable event may be tried
together, thereby avoiding the unnecessary loss of time and money to the court
and the parties that the duplicate presentation of the evidence relating to facts
common to more than one demand for relief would entail.
MISS. R. CIV. P. 20 cmt.
The Court finds that both Rule 20(a) requirements are satisfied here. Regarding the first
prong, Plaintiffs have all asserted the same rights to relief based upon the odors, flies, and truck

because the rules are very similar, this Court held in Jackson v. Truly, 307 F.Supp.2d 818, 82324 (N.D. Miss. 2004), that “to the extent that applying Mississippi Rule 20 instead of Federal
Rule 20 will affect the outcome of a fraudulent misjoinder case, the Court will apply the
Mississippi rule.”
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traffic caused by the Monroe County chicken houses. Their claims are based upon the same
transaction, occurrence, or series of transactions or occurrences. The ongoing operations at the
Monroe County facilities create a distinct litigable event linking Plaintiffs’ claims. The second
prong requires the presence of any common question of law or fact. Here, there are common
questions of law, as Plaintiffs have all asserted identical causes of action. Thus, Plaintiffs will all
be required to prove the same elements in order to recover. There are also common questions of
fact, as Plaintiffs’ claims all revolve around the operations at the Monroe County facilities.
Therefore, both Rule 20(a) requirements are satisfied. Borrowing the language from the Rule 20
comment, joinder of Plaintiffs’ claims in this action “avoid[s] the unnecessary loss of time and
money to the court and the parties that [would be caused by] the duplicate presentation of the
evidence.”
In its motion, Peco asserts that there are multiple factual dissimilarities between each of
Plaintiffs’ claims, making severance appropriate. In support of this assertion, Peco emphasizes
the differences in the distance between each Plaintiffs’ property and the chicken facilities, the
distinctions between the frequency and intensity of the odors alleged by Plaintiffs, the variations
in Plaintiffs’ complaints as to the flies, the differences in their complaints about truck traffic, and
the varying possessory interests each Plaintiff retains in the affected properties. Highlighting
these factual dissimilarities, Peco states that severance is appropriate because “a joint trial of
these fifty-nine claims, or any combination of them, will unfairly prejudice Peco’s right to a fair
trial.” Simply put, the Court is unpersuaded. While the Court recognizes that each of the
plaintiffs have experienced slightly different damages due to the location of their property in
relation to the chicken houses, their claims nevertheless satisfy the Rule 20 requirements. Peco

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will have an opportunity at trial to expose the variances in Plaintiffs’ testimonies. Accordingly,
the Court finds that the claims should be tried together.
In support of its position, Peco largely relies on two cases. Because both cases are easily
distinguishable, the Court declines to apply them here. First, Peco asserts that McFarland v.
State Farm Fire & Cas. Co., 2006 WL 2577852 (S.D. Miss. Sept. 6, 2006), supports its position.
In McFarland, hundreds of plaintiffs joined in a lawsuit, “each asserting claims that arise out of
damage to property caused by Hurricane Katrina.” Id. at *1. While recognizing that the
hurricane was the common event that served as the basis of each claim, the court determined that
the plaintiffs’ claims should be severed. Id. In reaching that decision, the court emphasized that
each plaintiff’s claims were based on different insurance contracts and any claims for negligent
or fraudulent misrepresentations by insurance agents constituted separate transactions or
occurrences. Id.
This action is distinguishable from McFarland. Here, all Plaintiffs assert causes of action
for negligence and nuisance, which are based on the operations at the Monroe County chicken
houses. Unlike McFarland, Plaintiffs’ claims are not based on separate contracts or actions
specific to any one individual plaintiff. Rather, Plaintiffs’ claims are all based on the same
underlying facts— Peco’s operations at the Monroe County facilities. Thus, while most
plaintiffs in McFarland asserted similar causes of action, different proof was required to prove
their claims as many of the plaintiffs’ claims were based upon the conduct of different agents.
Here, however, Plaintiffs’ claims all rely upon the operations of the chicken houses. While some
Plaintiffs have had slightly different experiences, all of the claims will be based upon the
operations at the chicken houses. McFarland is distinguishable and inapplicable.

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Peco also relies on Baughman v. Lee County, Mississippi, 554 F.Supp.2d 652 (N.D. Miss.
2008), a case wherein this Court held that the twenty-seven plaintiffs’ claims should be severed.
In Baughman, the plaintiffs each brought a 42 U.S.C. § 1983 claim, alleging that he or she was
unnecessarily strip-searched at the Lee County Jail, in violation of his or her constitutional rights.
Id. at 653. Relying on McFarland, this Court severed the plaintiffs’ claims, stating that “[t]his
lawsuit does not arise from a single incident in which large numbers of inmates were stripsearched at the time same time. To the contrary, the complaint alleges a series of allegedly
unlawful strip searches which took place between 2005 and 2007, and each incident will require
individualized proof regarding the circumstances and nature of the strip search in question.” Id.
at 654. The Court further opined that “the similarity between the claims of the various plaintiffs
. . . is more illusory than real.” Id.
Contrary to Peco’s assertions, Plaintiffs’ claims in this action are distinguishable from
those of the Baughman plaintiffs. In Baughman, the plaintiffs asserted the same causes of action,
but each plaintiff’s claim was based on isolated incidents relevant only to that individual. Thus,
the plaintiffs alleged the same legal claim but alleged different facts giving rise to the claims. In
this case, Plaintiffs have all alleged claims for negligence and nuisance. Those claims are also
based on the same conduct—the Monroe County chicken house operations. Thus, Plaintiffs have
alleged the same legal claims and also rely largely on the same facts to prove those claims. The
Court finds this distinction crucial. Baughman is inapplicable.
As previously stated, “joinder is only proper if both (1) the different plaintiffs’ causes of
action arise out of the same transaction, occurrence, or series of transactions or occurrences; and
(2) some question of law or fact common to all the plaintiffs will arise in the action.” WyethAyerst Laboratories v. Caldwell, 905 So.2d 1205, 1207 (Miss. 2005). “Both of these prongs of

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Rule 20(a) must be met in order to deny a motion for severance.” Miss. Farm Bureau Fed’n v.
Roberts, 927 So.2d 739, 741 (Miss. 2006).
In this Court’s view, Peco’s motion should be denied, as Plaintiffs’ claims satisfy both
Rule 20(a) requirements. Plaintiffs’ assertions are based upon a common transaction or
occurrence—the chicken house operations. Moreover, Plaintiffs’ claims raise both common
questions of law, as they all assert identical claims. Plaintiffs’ claims also raise common
questions of fact since their claims all revolve around the operations at the Monroe County
chicken houses. Ultimately, Peco emphasizes the few factual differences in each individual
plaintiff’s testimony while paying little attention to the large amount of factual similarities. This
argument is not well-taken.
III.

Conclusion

Relying on the foregoing analysis, the Court finds that Peco’s motion is meritless.
Accordingly, it is hereby, ORDERED that Peco’s Motion to Sever [257] is DENIED.
SO ORDERED this the 13th day of December, 2016.

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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