U. S. Technology Corporation v. Ramsay et al
Filing
93
ORDER granting judgment as a matter of law in favor of defendants as to Mississippi statutory claims, denying judgment as a matter of law as to negligence per se claim. Plaintiff's claims for nuisance per se and fraud shall be tried before a jury. Jury instructions due on or before June 23, 2011. Signed by Honorable David C. Bramlette, III on 6/20/2011 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
U.S. TECHNOLOGY CORPORATION
VS.
PLAINTIFF/
COUNTER-DEFENDANT
CIVIL ACTION NO. 5:08-cv-218(DCB)(JMR)
PAT RAMSAY
and
DELTA LOGGING & COMPANY, INC.
DEFENDANT
DEFENDANT/
COUNTER-CLAIMANT
ORDER
This cause is before the Court pursuant to an Order filed May
13, 2011, requiring additional briefing on the issue of whether the
plaintiff’s claims under the Mississippi Solid Wastes Disposal Law,
the Mississippi Air and Water Pollution Control Law, and nuisance
per se fail as a matter of law on the basis that they do not create
a
private
cause
of
action.
Having
received
and
carefully
considered the additional briefing, the Court finds as follows:
The Mississippi Supreme Court has held that, assuming the
violation of a state statute, the mere fact that the statute was
violated “will not support a claim where no private cause of action
exists.”
Tunica County v. Gray, 13 So.3d 826, 829 (Miss. 2009).
“[T]he general rule for the existence of a private right
of action under a statute is that the party claiming the
right of action must establish a legislative intent,
express or implied, to impose liability for violations of
that statute.”
Doe v. State ex rel. Miss. Dep’t of
Corrections, 859 So.2d 350, 355 (Miss.2003). This Court
has declined to find a “private right of action for
violations of various statutes and regulations” in the
absence of legislative intent. Id. See also Moore ex
rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658
(Miss.2002); Allyn v. Wortman, 725 So.2d 94 (Miss.1998).
Id.
In Doe, the Mississippi Supreme Court, adopting the analysis
of a Wisconsin district court, instructed that in determining
whether a statute creates a private right of action,
“... a court must analyze the statute itself and any
relevant legislative history. The focal point is the
legislative body’s intent in enacting the statute.
Unless the legislative intent can be inferred from the
language of the statute, the statutory structure, or some
other source, the essential predicate for implication of
a private remedy simply does not exist.
In this case, nothing points in favor of implying a
private right of action ....
The [statute] itself
contains no statement of purpose or mention of the rights
of the general public ....
At the same time, the
Plaintiff has failed to point to any record of
legislative history which shows that the lawmakers
intended to benefit persons such as [the plaintiff].”
Doe,
859
So.2d
at
355
(quoting
Hodgson
v.
Miss.
Dep’t
of
Corrections, 963 F.Supp. 776, 791 (E.D. Wis. 1997)).
In ascertaining legislative intent, a court “may look not only
to the language used but also to [the statute’s] historical
background, its subject matter, and the purposes and objects to be
accomplished.”
Davis v. AG, 935 So.2d 856, 868 (Miss. 2006)
(quoting Bailey v. Al-Mefty, 807 So.2d 1203, 1206 (Miss. 2001)).
The court should also consider “the purpose and policy which the
legislature had in view of enacting the law,” and should “give
effect to the intent of the legislature.”
State ex rel. Hood v.
Madison County ex rel. Madison County Bd. of Supervisors, 873 So.2d
85, 88 (Miss. 2004)(citing Aikerson v. State, 274 So.2d 124, 127
2
(Miss. 1973)).
In Norman v. Prestage Farms, Inc., 2007 WL 1031371 (N.D. Miss.
March 30, 2007), the district court for the Northern District of
Mississippi affirmed a ruling by the bankruptcy court for the
Northern District that the Mississippi Air and Water Pollution
Control Law does not provide a private right of action or a private
remedy for parties adversely affected by violations of the statute.
The
bankruptcy
court
had
made
the
following
findings
conclusions:
The court has thoroughly reviewed the Mississippi Air
and Water Pollution Control Law in an attempt to discern
whether there is a legislative intent to create a private
right of action for its violation.
Section 49–17–29
provides that it is unlawful for any person to cause
pollution of the air or waters within the State of
Mississippi.
Section § 49–17–31 states that whenever
“the commission or an employee thereof” has reason to
believe that a violation has occurred, “the commission”
may cause a written complaint to be served upon the
alleged violator or violators.
As explained in §
49–17–7(1),
the
“commission”
is
the
Mississippi
Department of Environmental Quality. Section 49–17–43
indicates that any person, found by “the commission” to
be violating any of the provisions of the air and water
pollution law shall be subject to a civil penalty for
each violation.
With particular interest, the court examined §
49–17–35, entitled “Request for Hearing.” This section
provides, in part, as follows: “Any interested person
shall have the right to request the commission to call a
hearing for the purpose of taking action in respect to
any matter within the jurisdiction of the commission by
making a request therefor in writing.” (emphasis added)
It then states that upon the receipt of a request, “the
commission” may conduct any investigation that it deems
necessary, and, that within thirty days after the
conclusion of a hearing, “the commission” may take
whatever action it deems appropriate.
As such, this
3
and
section provides the mechanism for a person or entity,
affected by air or water pollution, to bring the matter
before “the commission” for redress. However, the remedy
available is that “the commission” may take whatever
action it deems appropriate, such as ordering remedial
procedures, in addition to the assessment of a civil
penalty pursuant to § 49–17–43. Nothing in § 49–17–35,
in particular, or in the Mississippi Air and Water
Pollution Control Law, in general, remotely suggests that
a private individual or entity is entitled to seek an
award for damages in a judicial forum for violations of
this law.
In the opinion of this court, the Mississippi Air and
Water Pollution Control Law is a regulatory scheme which
allows the State of Mississippi, not private individuals,
to oversee and abate air and water pollution. While it
does allow for private party participation, i.e., the
right to initiate a request with “the commission,” it
clearly does not provide a private right of action or a
private remedy for those persons adversely affected by
air or water pollution.
In re Moore (Norman v. Prestage Farms, Inc.), 310 B.R. 795, 800
(Bkrtcy. N.D. Miss. 2004).
This Court finds the opinions in In re Moore and Norman
persuasive and dispositive of the issue as to the Mississippi Air
and Water Pollution Control Law.
As for the Mississippi Solid
Wastes Disposal Law, it also contains no provision suggesting that
a private individual or entity is entitled to maintain a private
right of action.
See Aviall Services, Inc. v. Cooper Industries,
Inc., 312 F.3d 677, 691, n.28 (5th Cir. 2002)(“The Mississippi
statutes governing disposal of solid wastes, Miss. Code Ann. 17-171 et seq., do not appear to contain a provision for private cost
recovery.”)(reversed
and
remanded
on
other
grounds,
Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004);
4
Donald v. Amoco Production Co., 735 So.2d 161, 173 n.4 (Miss. 1999)
(“Nowhere in the statute [Solid Wastes Disposal Law of 1974, Miss.
Code Ann. §§ 17-17-1 to -503] is a private cause of action
expressly granted.”).
Section 17-17-29(4) of the Solid Wastes Disposal statute
provides:
“Any
person
creating,
or
responsible
for
creating,
through misadventure, happenstance, or otherwise, an immediate
necessity for remedial or clean-up action involving solid waste
shall be liable for the cost of such remedial or clean-up action
and the commission may recover the cost of same by a civil action
brought in the circuit court of the county in which venue may lie.”
Miss. Code Ann. § 17-17-29(4)(emphasis added). In Barrett Refining
Corp. v. Mississippi Commission on Environmental Quality, 751 So.2d
1104 (Miss. App. 1999), the Mississippi Court of Appeals noted that
both section 17-17-29(7) of the Solid Wastes Disposal Law, and
section 49-17-43(g) of the Mississippi Air and Water Pollution
Control Law “set forth factors to be considered by the Commission
before determining the amount of penalty to impose when the
[respective statutes are] violated.”
Id. at 1126 n.8 (emphasis
added).
See also Donald, 735 So.2d at 173 (Solid Wastes Disposal
Law
primarily
“is
enforced
by
the
Mississippi
Department
of
Environmental Quality”).
The Court is persuaded that neither the Mississippi Air and
Water Pollution Control Law nor the Solid Wastes Disposal Law
5
provides a private cause of action or a private remedy.
The
defendants are therefore entitled to judgment as a matter of law on
the plaintiff’s claims under these statutes.
As for the plaintiff’s nuisance per se claim, Mississippi law
recognizes a private right of action for negligence per se:
The principle that violation of a statute constitutes
negligence per se is so elementary that it does not
require citation of authority.
When a statute is
violated, the injured party is entitled to an instruction
that the party violating the statute is guilty of
negligence, and, if that negligence proximately caused or
contributed to the injury, then the injured party is
entitled to recover.
Munford, Inc. v. Peterson, 368 So.2d 213 (Miss. 1979). The concept
was expanded to encompass nuisance per se in Donald, in which the
Mississippi Supreme Court reversed the lower court’s dismissal of
the plaintiff’s nuisance per se claim, quoting the Utah Supreme
Court:
When the conditions giving rise to a nuisance are also a
violation of a statutory prohibition, those conditions
constitute a nuisance per se, and the issue of the
reasonableness of the defendant’s conduct and the
weighing of the relative interests of the plaintiff and
the defendant is precluded because the Legislature has,
in effect, already struck the balance in favor of the
innocent party.
Donald, 735 So.2d at 173 (quoting Branch v. Western Petroleum,
Inc., 657 P.2d 267, 276 (Utah 1982)).
The Mississippi Supreme
Court noted that Mississippi’s Solid Wastes Disposal Law provides:
The formation of unauthorized dumps is hereby declared
to be a public nuisance per se, menacing public health
and unlawful, and any person who forms an unauthorized
dump shall be punished as provided in section 17-17-29 of
6
this chapter.
Existing dumps shall be eliminated by
removal or on-site burial.
Miss. Code Ann. § 17-17-17 (quoted in Donald, 735 So.2d at 172).
The court also found that “[a]lthough the Oil Defendants are
probably not the ones who in fact physically formed the dump,
discovery could reveal that they knew of the illegal dump or
encouraged the Davis Brothers to illegally dump to such an extent
as to implicate Section 17-17-17.”
Donald, 735 So.2d at 173.
The
Court therefore finds that Mississippi law provides a private right
of action for nuisance per se, and the defendants are not entitled
to judgment as a matter of law on this claim.
Accordingly,
IT IS HEREBY ORDERED that defendants Pat Ramsay and Delta
Logging are entitled to judgment as a matter of law on the
plaintiff’s claims under the Mississippi Solid Wastes Disposal Law
and the Mississippi Air and Water Pollution Control Law, and said
claims are DISMISSED;
FURTHER ORDERED that the defendants are not entitled to
judgment as a matter of law on the plaintiff’s claim for nuisance
per se.
FURTHER ORDERED that the plaintiff’s claims for nuisance per
se and fraud shall be tried before a jury.
The parties shall
submit jury instructions on or before June 23, 2011.
SO ORDERED, this the 20th day of June, 2011.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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