McKiver et al v. Murphy-Brown, LLC

Filing 346

ORDER denying #323 Motion to Alter or Amend Judgment; denying #325 Motion for Judgment as a Matter of Law; denying #327 Motion for New Trial; denying #329 Motion to Alter Judgment; denying #343 Motion to Strike. Signed by Senior Judge W. Earl Britt on 12/17/2018. (Herrmann, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-180-BR
JOYCE MCKIVER, et al.,

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)
Plaintiffs,
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)
v.
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MURPHY-BROWN LLC d/b/a
)
SMITHFIELD HOG PRODUCTION
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DIVISION,
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)
Defendant.
)
____________________________________)

ORDER

This matter is before the court on defendant’s motions to alter or amend judgment, for
judgment as a matter of law, and for a new trial, (DE ## 323, 325, 327); plaintiffs’ motion to
alter or amend judgment, (DE # 329); and defendant’s motion to strike plaintiffs’ reply, (DE #
343).
On 31 August 2018, the court allowed defendant’s unopposed motion to direct entry of
final judgment on the jury verdict awarding ten of the twenty plaintiffs in this case compensatory
and punitive damages. (DE # 317.) The same day the Clerk entered judgment. (DE # 318.) On
28 September 2018, the parties filed their post-judgment motions. Briefing on those motions
concluded on 2 November 2018 with plaintiffs’ filing of a reply in support of their postjudgment motion, to which defendants responded with a motion to strike. Briefing on that
motion has recently concluded, thus making these related motions ripe.
I. DEFENDANT’S MOTION TO ALTER OR AMEND
Pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure, defendant
requests that the court vacate the 31 August 2018 judgment. “A Rule 59(e) motion may only be

granted in three situations: ‘(1) to accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to correct a clear error of law or prevent
manifest injustice.’ It is an extraordinary remedy that should be applied sparingly.” Mayfield v.
Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (citations
omitted). Because defendant filed its motion within 28 days of entry of the judgment, the court
considers it only under this standard, rather than under the Rule 60(b) standard. See Robinson v.
Wix Filtration Corp., 599 F.3d 403, 412 (4th Cir. 2010) (“We have squarely held, however, that
a motion filed under both Rule 59(e) and Rule 60(b) should be analyzed only under Rule 59(e) if
it was filed no later than [28] days after entry of the adverse judgment and seeks to correct that
judgment.” (citations omitted)). Defendant contends that new legal and factual developments
warrant vacating the judgment.
A. Right to Farm Act
Defendant argues that based on post-trial amendments to North Carolina’s Right to Farm
Act (“RFA”), the Act bars plaintiffs’ claims or, alternatively, prohibits plaintiffs’ recovery of
punitive damages. Specifically, defendant contends that the subject amendments clarify existing
law and therefore apply to pending cases. Plaintiffs counter that the amendments work a change
in law, applying only prospectively. The court agrees with plaintiffs.
In construing a statute with reference to an amendment it is presumed that the
legislature intended either (a) to change the substance of the original act, or (b) to
clarify the meaning of it. A clarifying amendment, unlike an altering amendment,
is one that does not change the substance of the law but instead gives further
insight into the way in which the legislature intended the law to apply from its
original enactment. As a result, in addition to applying to all cases brought after
their effective dates, such amendments apply to all cases pending before the
courts when the amendment is adopted, regardless of whether the underlying
claim arose before or after the effective date of the amendment.

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Ray v. N.C. Dep’t of Transp., 727 S.E.2d 675, 681 (N.C. 2012) (citations and internal quotation
marks omitted). In contrast, if the amendment is altering, its effective date controls. Id. at 682.
“To determine whether the amendment clarifies the prior law or alters it requires a careful
comparison of the original and amended statutes. If the statute initially fails expressly to address
a particular point but addresses it after the amendment, the amendment is more likely to be
clarifying than altering.” Id. (citations and internal quotation marks omitted). “Where, however,
the legislature alters an unambiguous statute, it is presumed that the legislature intended to
change the law.” Tucker Auto-Mation of N.C., LLC v. Russell Rutledge & Rutledge
Commercial, LLC, No. 1:15-CV-893, 2017 WL 2930926, at *8 (M.D.N.C. July 10, 2017) (citing
Childers v. Parker’s, Inc., 162 S.E.2d 481, 484 (N.C. 1968)).
The prior version of the RFA, which this court applied in ruling on the cross-motions for
summary judgment, provided in relevant part:
No agricultural or forestry operation or any of its appurtenances shall be or
become a nuisance, private or public, by any changed conditions in or about the
locality outside of the operation after the operation has been in operation for more
than one year, when such operation was not a nuisance at the time the operation
began.
N.C. Gen. Stat. § 106-701(a) (2013). The Act also contained a provision exempting from this
law nuisances resulting from negligent or improper operation of an agricultural or forestry
operation. Id. § 106-701(a2) (2013).
By virtue of “An Act to Make Various Changes to the Agricultural Laws,” effective 27
June 2018, the North Carolina General Assembly amended those provisions by, among other
things, removing the law’s applicability being contingent upon “changed conditions in or about
the locality outside of the operation” and by deleting the exemption for nuisances resulting from
negligent or improper operation. See 2018-113 N.C. Sess. Laws 7, 8 (codified at N.C. Gen. Stat.

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§ 106-701). That Act replaced those provisions with other requirements that must be satisfied
for a nuisance action to proceed against an agricultural or forestry operation, significantly, that
the affected property be within one-half mile of the subject operation and that any action be filed
within one year of the operation’s establishment or underdoing a fundamental change. N.C. Gen.
Stat. § 106-701(a) (2018). It also added a provision prohibiting the recovery of punitive
damages where the operation has not been subject to a criminal conviction or a governmental
agency civil enforcement action “within the three years prior to the first act on which the
nuisance action is based.” Id. § 106-702(a1) (2018).
A comparison of these versions reveals that the amendments changed the substance of the
RFA. The law, as originally enacted in 1979, specifically addressed the circumstances under
which an agricultural operation may be deemed a nuisance. See id. § 106-700 (1979) (“It is the
purpose of this Article to reduce the loss to the State of its agricultural resources by limiting the
circumstances under which agricultural operations may be deemed to be a nuisance.”). Those
circumstances remained through amendments to the statute in 1993, 2013, and 2017. In apparent
reaction to this court’s summary judgment ruling, see An Act to Make Various Changes to the
Agricultural Laws, 2018-113 N.C. Sess. Laws 1 (June 27, 2018) (“[R]ecently a federal trial court
incorrectly and narrowly interpreted the North Carolina Right to Farm Act in a way that
contradicts the intent of the General Assembly and effectively renders the Act toothless in
offering meaningful protection to long-established North Carolina farms and forestry
operations[.]”), the legislature substantively changed those circumstances. As a result,

this

amendment is altering, and the effective date controls. See Ward v. Dixie Nat’l Life Ins. Co.,
595 F.3d 164, 175 (4th Cir. 2010) (“[T]the mere fact that a legislature enacts a new law in order

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to correct or clarify a recent judicial decision does not warrant an inference that the legislature
intended the new law to apply to the case giving rise to it.” (citations omitted)).
The court reaches a similar conclusion regarding the punitive damages amendment to the
RFA. Although an earlier provision of the Act addressed the measure of compensatory damages
that may be awarded where the nuisance emanated from an agricultural or forestry operation,
N.C. Gen. Stat. § 106-702(a) (2017), the Act did not address punitive damages. Rather, North
Carolina’s punitive damages statute, which has been in effect since 1996 and “applies to every
claim for punitive damages,” id. § 1D-10 (1996), governs the determination of liability for
punitive damages, id. § 1D-15 (1996). The recent amendment to the RFA further narrows
liability for punitive damages in the case of an alleged nuisance emanating from an agricultural
or forestry operation. It did not clarify or fill in a gap in the law. The punitive damages
amendment is a substantive change, and the effective date controls its application.
Because plaintiffs brought this action prior to the effective date of the subject
amendments, those amendments do not provide a basis for vacating the judgment and entering
judgment in defendant’s favor.
B. Failure to Join a Necessary and Indispensable Party
Alternatively, defendant urges the court to dismiss this case for failure to join Kinlaw
Farm, LLC as a necessary and indispensable party in accordance with Federal Rule of Civil
Procedure 19. Defendant cites as “new evidence” its post-trial decision to cease conducting
business with the farm, resulting in its removal of its swine from the farm and in the farm’s
inability to receive the same payments as if the farm were operational. Plaintiffs argue that the
court should stand by its earlier ruling on the issue of whether the owners of the subject farms are
necessary and indispensable parties to this litigation.

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Prior to the deadline for filing dispositive motions, and when this case and others were
consolidated for coordinated, detailed discovery and pretrial proceedings, defendant filed a
motion for judgment on the pleadings based on the failure to join the landowners as necessary
and indispensable parties under Rule 19.
[D]efendant’s argument rest[ed] on the purported prejudice that the landowners
would suffer if a nuisance is found in these cases in their absence. According to
defendant, a finding of nuisance would (1) interfere with the landowners’
fundamental property rights, including their state-issued permits for lagoon use,
(2) subject the landowners to a significant risk of future liability, and (3) result in
the landowners being in breach of their contracts with defendant.
In re NC Swine Farm Nuisance Litig., No. 5:15-CV-13-BR (DE # 439, at 8). The court rejected
the notion that failure to join the landowners would impair or impede their ability to protect their
interests as well as defendant’s suggestion that it would suffer prejudice absent joinder of the
landowners. Id. at 8-11.
Defendant renews many of its earlier arguments. The primary factual differences are
now a verdict has been rendered against defendant and it has chosen to terminate business with
the landowner. Defendant stresses the harm that the verdict has caused to the landowner’s
interests. Yet, the verdict was against defendant only. The verdict did not mandate defendant’s
actions against the landowner. It is entirely within defendant’s control whether to invoke any of
its contractual rights against the landowner. The court recognized as much in its prior order. See
id. at 9 (“A finding of a nuisance does not necessarily mean the landowners can no longer raise
swine on their properties or make their relevant permits worthless. . . . Although the finding of a
nuisance may have some impact on the landowners’ operations, it is defendant who would
allegedly control the extent of that impact.”). As for the landowner’s risk of future liability for
nuisance and punitive damages, which the court also previously considered, see id. at 9-10, that
risk is virtually nonexistent given the current law discussed above.
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The court concludes that the “new evidence,” which is entirely of defendant’s making,
does not warrant dismissal of this case for failure to join the landowner as a party.
II. DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW
Based on Rule 50(b) of the Federal Rules of Civil Procedure, defendant renews its earlier
motions for judgment as a matter of law. In considering a Rule 50(b) motion, “the question is
whether a jury, viewing the evidence in the light most favorable to [the non-movant], could have
properly reached the conclusion reached by th[e] jury. If reasonable minds could differ about the
result in this case, [the court] must affirm the jury’s verdict.” Bryant v. Aiken Reg’l Med. Ctrs.
Inc., 333 F.3d 536, 543 (4th Cir. 2003) (citation and internal quotation marks omitted).
Defendant argues that it is entitled to judgment as a matter of law because plaintiffs failed
to present sufficient evidence to support punitive or “fear of future injury” damages; plaintiffs
failed to establish defendant’s vicarious liability for the nuisance; and, the statute of limitations
bars plaintiffs’ claims. Considering the evidence developed at trial in the light most favorable to
plaintiffs, a reasonable jury could have found in plaintiffs’ favor on liability and damages,
including punitive damages, and the court will not disturb the jury’s verdict.
III. DEFENDANT’S MOTION FOR A NEW TRIAL
Defendant moves for a new trial under Rule 59(a) of the Federal Rules of Civil
Procedure. “In considering a motion for a new trial, a trial judge may weigh the evidence and
consider the credibility of witnesses, and if he finds the verdict is against the clear weight of the
evidence, is based on false evidence or will result in a miscarriage of justice, he must set aside
the verdict, even if supported by substantial evidence, and grant a new trial.” King v. McMillan,
594 F.3d 301, 314 (4th Cir. 2010) (citation and internal quotation marks omitted). By way of its
motion, defendant asks the court to revisit its prior rulings on the cross-motions for summary

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judgment, defendant’s motion to bifurcate, various evidentiary issues, and proposed jury
instructions. The court does not believe it erred in those rulings and declines to order a new trial
on any ground asserted.
IV. PLAINTIFFS’ MOTION TO ALTER OR AMEND AND DEFENDANT’S MOTION
TO STRIKE
Plaintiffs also move to alter or amend the judgment under Rule 59(e). Specifically, they
request that the court set aside its reduction of the jury’s punitive damages awards on the ground
that North Carolina’s statutory punitive damages cap is unconstitutional as applied. Plaintiffs
acknowledge that their request amounts to one for reconsideration. The court stands by its
earlier decision reducing the punitive damages awards in this case. (DE # 277.)
Defendant moves to strike plaintiffs’ reply brief filed in support of their motion to alter or
amend the judgment. Defendant points to the court’s 6 June 2018 order in this case, (DE # 300),
and related cases regarding motion practice and other issues. The relevant portion of that order
provides, “No replies are permitted with respect to any motions without leave of court.” (Id. at
3.) Plaintiffs claim they understood that portion to apply to pre-trial motions only, not post-trial
motions. As an alternative to striking, plaintiffs offer to withdraw the reply and do not oppose
the court making clear that the prohibition against the filing of reply briefs applies to post-trial
motions. The court accepts this proposal, and defendant’s motion is therefore moot.
The court reminds the parties of the requirements of the 6 June 2018 order,
scheduling orders, and the Local Rules (all of which are applicable to this case and the
related cases), including filing deadlines, page limitations, and formatting requirements
such as font and margin sizes. Ignoring or manipulating these requirements is
unacceptable. The court reserves the right to summarily deny or refuse to consider any
document not filed in compliance with orders of this court or the Local Rules.
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V. CONCLUSION
For the foregoing reasons, defendant’s motions to alter or amend the judgment, for
judgment as a matter of law, for a new trial, and to strike are DENIED. Plaintiff’s motion to
alter or amend the judgment is DENIED.
This 17 December 2018.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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