Beck v. Stony Hollow Landfill, Inc.

Filing 25

ENTRY AND ORDER DENYING DEFENDANT STONY HOLLOW LANDFILL, INC.'S MOTION TO DISMISS 12 THE COMPLAINT AND MOTION TO STRIKE CLASS ALLEGATIONS 14 . Signed by Judge Thomas M. Rose on 5-1-2017. (de)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CARLY BECK, on behalf of herself and
all others similarly situated,

:
Case No. 3:16-cv-455
:
:
Judge Thomas M. Rose
Plaintiff,
:
:
v.
:
:
STONY HOLLOW LANDFILL, INC.,
:
:
Defendant.
:
______________________________________________________________________________
ENTRY AND ORDER DENYING DEFENDANT STONY HOLLOW LANDFILL,
INC.’S MOTION TO DISMISS (DOC. 12) THE COMPLAINT AND MOTION
TO STRIKE CLASS ALLEGATIONS (DOC. 14)
______________________________________________________________________________
This case is before the Court on the Motion to Dismiss (Doc. 12) the Complaint and
Motion to Strike (Doc. 14) the Complaint’s class allegations filed by Defendant Stony Hollow
Landfill, Inc. (“Stony Hollow”). Plaintiff Carly Beck (“Beck”) lives within three miles of a
municipal solid waste landfill operated by Stony Hollow. (Doc. 1 at ¶ 2-4, 26.) Beck alleges that
Stony Hollow has negligently managed the landfill’s gas emissions and, as a result, her use and
enjoyment of her home has suffered. Beck seeks to represent a class of all property owners within
a three-mile radius of Stony Hollow’s landfill, but she has not yet moved to certify a class. Stony
Hollow moves to dismiss the Complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
In the event that the Complaint survives the Motion to Dismiss, Stony Hollow also moves to strike
the Complaint’s class allegations on the grounds that Beck cannot meet the requirements for
certifying a class under Fed. R. Civ. P. 23(a) and (b).
For the reasons below, the Court DENIES both the Motion to Dismiss and Motion to
Strike.

I.

BACKGROUND1
Beck is a resident of Moraine, Ohio. (Doc. 1 at ¶ 2.) Stony Hollow is a Delaware

corporation with its principal place of business in Houston, Texas. (Id. at ¶ 3.) The Court has
jurisdiction over this action under the Class Action Fairness Act, 28 U.S.C. § 1332(d), and
pursuant to the Court’ s diversity jurisdiction under 28 U.S.C. § 1332(a).
Stony Hollow owns and controls a municipal solid waste landfill located on South
Gettysburg Road in Dayton, Ohio, within three miles of Beck’s residence. (Id. at ¶ 4, 26.)
Beck’s property “has been and continues to be physically invaded by noxious odors” coming from
Stony Hollow’s landfill. (Id. at ¶ 9-10.) Beck alleges that a “properly operated, maintained, and
managed landfill will collect, capture and destroy landfill gas from the landfill in order to prevent it
from escaping into the ambient air as fugitive emissions.” (Id. at ¶ 13.) According to Beck,
Stony Hollow’s landfill is not properly operated, maintained, and managed because it “has failed
to sufficiently collect, capture, and destroy landfill gas generated at its landfill to prevent fugitive
emissions and to otherwise prevent odors from the landfill from invading” Beck’s property. (Id.
at ¶ 14.) Beck also alleges that Stony Hollow “failed to properly construct, repair, maintain
and/or operate its landfill.” (Id. at ¶ 25.)
Stony Hollow’s landfill has been the subject of numerous complaints from nearby
residents to state and local authorities and over 160 households have contacted her counsel in this
case documenting the landfill’s odors. (Id. at ¶ 15-17.) The Regional Air Pollution Control
Agency (“RAPCA”) has cited Stony Hollow, on at least one occasion, for causing an odor
nuisance to its neighbors. (Id. at ¶ 18.) In 2016, RAPCA performed a 14-day surveillance of the
landfill and, on 12 of the 14 days, observed moderate to very strong landfill odors offsite. (Id. at ¶
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The following facts are taken from the Complaint, whose allegations the Court accepts as true when considering
Stony Hollow’s Motion to Dismiss.

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19.)
Beck claims that the noxious odors from Stony Hollow’s landfill interfere with the use and
enjoyment of her property and has reduced her property’s value. She seeks to represent a class of
all owners, occupants and renters of residential property residing within three miles of the
landfill’s property boundary. (Doc. 1 at ¶ 26.) Beck claims that Stony Hollow’s landfill has
caused damages in excess of $5,000,000. Beck asserts two causes of action against Stony Hollow
for (1) nuisance and (2) negligence and gross negligence.
II.

STONY HOLLOW’S MOTION TO DISMISS
A. Legal Standard under Fed. R. Civ. P. 12(b)(6)
When considering a motion to dismiss under Rule 12(b)(6), courts must construe the

complaint in the light most favorable to the plaintiff and accept as true all “well-pleaded
allegations” in the complaint. Republic Bank & Trust Co. v. Bear Stearns & Co., 683 F.3d 239,
246 (6th Cir. 2012). The court need not accept, however, “a legal conclusion couched as a factual
allegation.” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation marks
omitted). “[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal alterations omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570).
B. Beck’s Nuisance Claim
Stony Hollow argues that Beck’s nuisance claim should be dismissed because she fails to
allege: (1) the elements of a private nuisance; (2) the elements of a public nuisance; (3) the time
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range during which the nuisance existed and her damages were incurred; (4) that the landfill’s
odors have “substantially and unreasonably interfered with her use and enjoyment of her
property”; and (5) “why all owners, occupants, and renters who live within three miles of the
landfill’s property boundary are entitled to relief.” (Doc. 13 at 2.)
Ohio law defines a nuisance as the wrongful invasion of a legal right or interest. Taylor v.
Cincinnati, 143 Ohio St. 426, 432 (1944). “Wrongful invasion” includes both the use and
enjoyment of property or of personal rights and privileges. Id. There are different types of
nuisance claims under Ohio law: public or private, continuing or permanent, and qualified or
absolute. Kramer v. Angel’s Path, L.L.C., 2007-Ohio-7099, ¶¶ 15-23 (Ohio Ct. App. 6th Dist.
2007).
A public nuisance is “an unreasonable interference with a right common to the general
public.” Kramer, 2007-Ohio-7099, ¶ 15 (quoting Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d at 712). To prove a claim for public nuisance, a plaintiff must show both interference
with a public right and that she suffered an injury distinct from that suffered by the public at large.
Kramer, 2007-Ohio-7099, ¶ 16. “[T]he harm suffered by the plaintiff must be different in kind,
rather than different in degree, from that suffered by other members of the public exercising the
public right.” Id. A private nuisance is a “nontrespassory invasion of another’s interest in the
private use and enjoyment of land.” Brown, 87 Ohio App.3d at 712. To be actionable, a private
nuisance must be either “(a) intentional and unreasonable or (b) unintentional but caused by
negligent, reckless, or abnormally dangerous conduct.” Kramer, 2007-Ohio-7099, ¶ 17.
A nuisance may also be continuing or permanent. “A continuing nuisance arises when the
wrongdoer’s tortious conduct is ongoing, perpetually generating new violations.”

Kramer,

2007-Ohio-7099 at ¶ 18. In contrast, a permanent nuisance “occurs when the wrongdoer’s
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tortious act has been completed, but the plaintiff continues to experience injury in the absence of
any further activity by the defendant.” Id.
A qualified nuisance and an absolute nuisance also must be distinguished. “An absolute
nuisance, or nuisance per se, is based on intentional conduct or an abnormally dangerous condition
that cannot be maintained without injury to property, no matter what precautions are taken.”
Kramer, 2007-Ohio-7099 at ¶ 19 (citing, inter alia, State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d
1, 2002 Ohio-6716, 780 N.E.2d 988, ¶ 59). A party found guilty of committing an absolute
nuisance will be held strictly liable for its resulting damages. Id. In contrast, a qualified
nuisance “is defined as essentially a tort of negligent maintenance of a condition that creates an
unreasonable risk of harm.” Id. at ¶ 21. A qualified nuisance therefore arises from a failure to
exercise due care. Id.
Beck does not specify the type of nuisance claim that she wishes to pursue. Stony Hollow
claims that, due to this lack of specificity, the Complaint fails to provide fair notice of Beck’s
claims. To the contrary, as demonstrated by the memorandum in support of its motion to dismiss,
Stony Hollow is on notice of the claims against it. Construing the Complaint in the light most
favorable to Beck, it is reasonable to conclude that she asserts claims for both a public and private
nuisance. Her allegations also are consistent with the assertion of a continuing and qualified
nuisance. Beck alleges that Stony Hollow could operate its landfill in a manner that would not
create a nuisance, but that it has failed to exercise the due care required to do so.
Beck is not required, at this time, to choose the theory upon which she will seek relief.
She may assert a claim for both a private and public nuisance based on the same facts alleged in the
Complaint. Brown v. Cty. Comm’Rs, 622 N.E.2d 1153, 1160 (Ohio Ct. App. 4th Dist. 1993).

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1. Public Nuisance
Beck alleges facts supporting a claim for public nuisance. She alleges that the landfill
emits noxious, offensive odors that interfere with the use and enjoyment of her property and
reduce her property’s value. Assuming those facts to be true, Stony Hollow would be in violation
of a public right established under Ohio law. See Hager v. Waste Techs. Indus., 2002-Ohio-3466,
¶ 81 (Ohio Ct. App. June 27, 2002). As noted in Hager, Ohio Administrative Code 3745-15-07
provides:
The emission or escape into the open air from any source or sources whatsoever, of
smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, or any other substances
or combinations of substances, in such manner or in such amounts as to endanger
the health, safety or welfare of the public, or cause unreasonable injury or damage
to property, is hereby found and declared to be a public nuisance. It shall be
unlawful for any person to cause, permit or maintain any such public nuisance.
Ohio Admin. Code 3745-15-07(A). In Hager, the Ohio Court of Appeals stated that this statute
amounts to “a legislative declaration” that the conduct described—the same conduct complained
of in Beck’s Complaint here—is “an unreasonable interference with a public right.” Hager,
2002-Ohio-3466 at ¶ 81.
Beck also alleges an injury distinct from that suffered by the public at large. The general
public includes anyone who must suffer the consequences of being in the presence of the alleged
odors—people who live in the area like Beck, but also people who work in the area or travel
through the area. Beck’s alleged injury as a property owner is distinct from the alleged injury
suffered by the general public. Ohio courts have recognized that property owners are uniquely
situated to pursue a nuisance claim: “When the particular harm involved consists of interference
with the use and enjoyment of land, the landowner may recover either on the basis of the particular
harm to her resulting from the public nuisance or on the basis of private nuisance.” Brown, 622
N.E.2d at 1160.
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2. Private Nuisance
Beck also alleges facts supporting a claim for private nuisance. A private nuisance claim
is essentially a claim for negligence, the basic elements of which are duty, breach, and damages
resulting from the breach. Mussivand v. David, 45 Ohio St. 3d 314, 318, 544 N.E.2d 265, 270
(1989); see also 70 Ohio Jur. 3d Negligence § 3. As noted above, Stony Hollow has a duty not to
permit fumes to escape into the open air that endanger the health, safety or welfare of the public.
Stony Hollow also has a common-law duty of due care under Ohio law, which requires “that
degree of care which an ordinarily reasonable and prudent person exercises, or is accustomed to
exercising, under the same or similar circumstances.” Mussivand, 45 Ohio St. 3d at 318. Beck
alleges that Stony Hollow breached these duties to her, as evidenced by the landfill’s emission of
the noxious and offensive odors that fall onto her property.
Stony Hollow contends that Beck has alleged only the legal elements of a negligence
claim, and no actual facts to support such a claim. Stony Hollow specifically points to Beck’s
allegation that Stony Hollow “negligently and improperly constructed, maintained and/or operated
its landfill, allowing excessively fugitive emissions to escape.” (Doc. 13 at 8 (quoting Doc. 1 at ¶
46).) Beck admits that, at this stage of the litigation, she cannot allege additional information
such as “the collection capacity and efficiency of the landfill gas system, or the precise quantities
of landfill gas collected and emitted.” (Doc. 20 at 11.) Beck need not allege “detailed factual
allegations” to survive a motion to dismiss, however, so long as the factual allegations are “enough
to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (2007). Beck has
met this standard. If the gases emanating from the landfill are as odorous and offensive as Beck
alleges, then it is plausible—not merely speculative—that Stony Hollow has failed to manage the
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landfill in satisfaction of its duty under Ohio law.
Stony Hollow also argues that Beck fails to allege any “physical discomfort” that amounts
to actionable damages. (Doc. 13 at 12-14 (citing Ford et al. v. Chillicothe Paper, Inc. et al., No.
2:15-cv-2464 (S.D. Ohio Jan. 15, 2016) (attached as Doc. 13-1); Antonik v. Chamberlain, 81 Ohio
App. 465, 476 (Ohio Ct. App. 9th Dist. 1947); Banford v. Aldrich Chem. Co., 126 Ohio St. 3d 210,
213 (2010); Baker v. Chevron U.S.A. Inc., 533 F. App’x 509, 524 (6th Cir. 2013)). To recover on
a nuisance claim, a plaintiff must allege an injury that is “real, material, and substantial.”
Banford, 126 Ohio St. 3d at 213. The Supreme Court of Ohio has held that conditions that “affect
one’s sight, sound, smell, hearing, or touch” may cause a “physical discomfort” for which
damages are available. Banford, 932 N.E.2d at 318. “In cases in which courts have determined
that circumstances did not rise to the level of nuisance and refused to award damages for
annoyance and discomfort, the offending situation had no effect on the senses and thus no physical
component of annoyance and discomfort.” Id. at 319.
Here, Beck’s alleged damages are real, material, and substantial. She alleges that the
landfill’s odors are so offensive that they have woken her up in the middle of the night, forced her
to stay inside her home with the windows closed, and discouraged her from inviting guests to her
home out of embarrassment. (Doc. 1 at ¶ 43.) These allegations describe a powerful, negative
effect on Beck’s physical sense of smell. That is all that is required under Ohio law.
C. Beck’s Negligence and Gross Negligence Claim
Stony Hollow argues that Beck’s negligence claims should be dismissed for essentially the
same reasons that it argued for dismissal of her private nuisance claim. As a private nuisance
claim and a negligence claim share essentially the same elements, this argument also fails. Stony
Hollow again contends that Beck has not alleged “physical” damage sufficient to state a claim.
8

As discussed above, Beck alleges physical discomfort for which she can recover. Ohio law also
permits a homeowner to recover for interference with the use of her property, which Beck also
alleges. See Baker, 533 F. App’x at 524.
Stony Hollow argues that Beck’s gross negligence claim should be dismissed because she
does not allege that Stony Hollow engaged in “willful and wanton” misconduct. (Doc. 13 at 17.)
Under Ohio law, gross negligence is the “failure to exercise any or very slight care” or the “failure
to exercise even that care which a careless person would use.” Winkle v. Zettler Funeral Homes,
Inc., 182 Ohio App. 3d 195, 209 (Ohio Ct. App. 12th Dist. 2009). Beck alleges that there have
been numerous complaints about the odors emitted from Stony Hollow’s landfill to state and local
authorities and that Stony Hollow has acknowledged that its landfill emitted objectionable odors.
Yet, Stony Hollow’s landfill continues to emit objectionable odors.

Ultimately, whether or not

Stony Hollow’s conduct rises to the level of gross negligence is a jury question. At this stage,
however, Beck plausibly alleges that Stony Hollow has engaged in gross negligence.
III.

STONY HOLLOW’S MOTION TO STRIKE CLASS ALLEGATIONS
A. Legal Standard under Fed. R. Civ. P. 23
Federal Rule of Civil Procedure 23 states that, in an action brought on behalf of a putative

class of similarly situated individuals, the court should decide at “an early practicable time”
whether or not a class action should be certified. Fed. R. Civ. P. 23(c)(1)(A). Typically, the
plaintiff, who bears the burden of proof, moves the Court to certify a class under Rule 23.
Nonetheless, a defendant may move to strike class allegations in a complaint where they are so
deficient that discovery is not required to consider their merits. Pilgrim v. Universal Health
Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011); see also Colley v. Procter & Gamble Co., No.
1:16-CV-918, 2016 WL 5791658, at *2 (S.D. Ohio Oct. 4, 2016). Courts should exercise caution
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when evaluating class action allegations based solely on the pleadings, however, “because class
determination generally involves considerations that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action.” Geary v. Green Tree Servicing, LLC, No. 2:14cv522,
2015 WL 1286347 (S.D. Ohio Mar. 20, 2015). Therefore, “a district court should defer decision
on class certification issues and allow discovery ‘if the existing record is inadequate for resolving
the relevant issues.’” Bearden v. Honeywell Int’l, Inc., 720 F. Supp. 2d 932, 942 (M.D. Tenn.
2010) (quoting In re Am. Med. Sys., 75 F.3d 1069, 1086 (6th Cir.1996)).
To obtain class certification, a plaintiff must show that “(1) the class is so numerous that
joinder of all members is impracticable; (2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and adequately protect the interests of the class.”
Fed. R. Civ. P. 23(a). These four requirements “serve to limit class claims to those that are fairly
encompassed within the claims of the named plaintiffs because class representatives must share
the same interests and injury as the class members.” In re Whirlpool Corp. Front-Loading
Washer Prod. Liab. Litig., 722 F.3d 838, 850–51 (6th Cir. 2013) (citing Dukes, 131 S.Ct. at 2550).
In addition to satisfying Rule 23(a)’s requirements of numerosity, commonality, typicality,
and adequate representation, the proposed class must also meet at least one of the three
requirements listed in Rule 23(b). Id. (citing Dukes, 131 S.Ct. at 2548; Young, 693 F.3d at 537).
Here, Beck seeks class certification under Rule 23(b)(1) and (3). (Doc. 1 at ¶ 35-36.) Rule
23(b)(1) requires that the prosecution of separate actions by individual class members would
create a risk of “inconsistent or varying adjudications” or adjudications “that, as a practical matter,
would be dispositive of the interests of the other members not parties to the individual
adjudications or would substantially impair or impede their ability to protect their interests.” Fed.
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R. Civ. P. 23(b)(1)(A)-(B). Rule 23(b)(3) requires the Court to find “that the questions of law or
fact common to class members predominate over any questions affecting only individual
members” and that the class action is “superior to other available methods” to adjudicate the
controversy fairly and efficiently. Fed. R. Civ. P. 23(b)(3).
B. Analysis
Stony Hollow argues that Beck’s class allegations are deficient on their face for several
reasons. First, Stony Hollow argues that individual issues abound in mass tort cases, like this one,
in which damages to real property are at issue. Second, Stony Hollow argues that Beck’s
proposed class definition is impermissibly vague—principally because she has not alleged the
time period during which the alleged nuisance occurred. Third, Stony Hollow argues that Beck
cannot meet Rule 23(a)’s commonality requirement because there is no single issue capable of
resolution on a class-wide basis. Fourth, Stony Hollow argues that Beck cannot show that
common issues predominate over individual issues, as required to certify a class under Rule
23(b)(3). Fifth, Stony Hollow argues that Beck cannot show that a class action is a superior
method of adjudication. Sixth, and lastly, Stony Hollow argues that class certification under Rule
23(b)(1) would not be proper because Beck has not shown that there is any risk of inconsistent
judgments.
In response, Beck asserts that courts routinely certify class actions in mass tort cases
involving air pollution. (Doc. 19 at 6-7 (citing, inter alia, Stanley v. U.S. Steel Co., No. 04-74654,
2006 U.S. Dist. LEXIS 16582, 21 (E.D. Mich. Mar. 17, 2006); Batties et al v. Waste Management
of Pennsylvania, Inc., No. 14-7013 (E.D. Pa. May 11, 2016); Ponca Tribe of Indians v. Cont’l
Carbon Co., No. CIV-05-445-C, 2007 U.S. Dist. LEXIS 577, at *25 (W.D. Okla. Jan. 3, 2007)).
Beck further argues that her class definition is unambiguous and appropriate because it is “clearly
11

defined by reference to nothing but objective criteria.” (Doc. 19 at 9.) Beck’s main argument,
however, is that it would be premature to rule on whether or not class certification is appropriate
until she has been able to conduct discovery.
After reviewing the caselaw, Beck’s last argument is the most convincing.

Stony

Hollow’s objections to class certification have legal support, but it would be premature to rule
upon the viability of the proposed class without further factual development. One of the cases
cited by Stony Hollow, and then noted in Beck’s response, is Powell v. Tosh, No. 5:09-cv-121,
2013 WL 4418531 (W.D. Ky. Aug 2, 2013). In that case, the plaintiffs asserted nuisance and
negligence claims—among others—relating to odors emitted from the defendants’ hog farms.
The court initially certified a Rule 23 class that consisted of current and former residents within a
1.25-mile radius of one set of defendants’ hog barns.

The court later reversed its class

certification decision, however, after discovery revealed significant individual differences among
the class members’ claims. Id. at *5-8. In particular, the court cited the deposition testimony of
several unnamed class members that undercut the lead plaintiffs’ allegations regarding the severity
of the hog farms’ odors. The difference of opinion among class members was material because
Kentucky law defined a nuisance by both subjective and objective criteria. The court therefore
found that “a necessary component of the Plaintiff class’s nuisance claim” could not be answered
on a classwide basis. Id. at *6-7. In addition, the objective criteria required to prove a nuisance
could not be adjudicated on a classwide basis because they too were subject to individualized proof
as to each class member’s property.

Id. at *7-8.

As a result, Rule 23(a)’s commonality

requirement was not met and class certification was no longer proper.
Here, the case is still at the pleading stage. It may be that individualized issues ultimately
preclude the certification of Beck’s proposed class. The Court disagrees with Stony Hollow’s
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contention, however, that class certification would never be appropriate in this case, regardless of
the factual record that develops. Beck may be able to demonstrate that no individual issues exist,
that any individual issues do not preclude class certification, or propose an amended class
definition that meets Rule 23’s requirements. In any event, there simply is not a sufficient factual
record before the Court to conduct the rigorous analysis required by Rule 23 at this time. Stony
Hollow’s Motion to Strike is therefore denied.
IV.

CONCLUSION
For the reasons above, the Court DENIES the Motion to Dismiss (Doc. 12) and Motion to

Strike (Doc. 14).
DONE and ORDERED in Dayton, Ohio, this Monday, May 1, 2017.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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