City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al
MEMORANDUM OPINION AND ORDER denying 238 MOTION by Cardinal Health, Inc., McKesson Corporation, AmerisourceBergen Drug Corporation for Summary Judgment: Standing. Signed by Senior Judge David A. Faber on 3/31/2021. (cc: counsel of record who have registered to receive an electronic NEF) (mkw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
Civil Action No. 3:17-01362
CORPORATION, et al.,
Civil Action No. 3:17-01665
CABELL COUNTY COMMISSION,
CORPORATION, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ motion for summary
judgment on the ground that plaintiffs lack standing.
For the reasons that follow, the motion is DENIED.
Plaintiffs, a West Virginia city and a West Virginia
county, proceed in this case on a single cause of action against
defendants, three prescription drug distribution companies.
That cause of action is public nuisance.
Defendants say that
the court should grant summary judgment because plaintiffs lack
standing under West Virginia law to sue for the public nuisance
Defendants say that for over one hundred
years, courtroom doors have been shut to West Virginia
municipalities that seek abatement of public nuisances, except
for public nuisances that are (1) nuisances per se or (2)
nuisances as defined pursuant to formal ordinances.
Plaintiffs say that defendants are mistaken about
West Virginia law and that, even if defendants were correct,
plaintiffs would still have standing. 1
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides:
A party may move for summary judgment, identifying
each claim or defense—or the part of each claim or
defense—on which summary judgment is sought. The
court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a
matter of law.
The moving party has the burden of establishing that there is no
genuine issue as to any material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
This burden can be met by
showing that the nonmoving party has failed to prove an
essential element of the nonmoving party’s case for which the
nonmoving party will bear the burden of proof at trial.
Standing under Article III of the United States Constitution is
not at issue in this motion.
This is so because “a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.”
Id. at 323.
Once there is a proper challenge to the sufficiency of the
nonmoving party’s evidence on an essential element, the burden
shifts to the nonmoving party to produce sufficient evidence for
a jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff. The judge’s
inquiry, therefore, unavoidably asks whether
reasonable jurors could find, by a preponderance of
the evidence, that the plaintiff is entitled to a
verdict . . . .
Id. at 252.
“If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.”
All reasonable inferences are to be drawn in the
nonmoving party’s favor.
See id. at 255.
Defendants cast the analysis as straightforward:
Virginia municipality has no standing to sue to abate an alleged
nuisance unless it is (1) a nuisance per se or (2) a nuisance
per ordinance. 2
Because neither exists here, defendants say,
The court will refer to a nuisance created by conduct that
violates an ordinance with the shorthand “nuisance per
plaintiffs have no standing.
On the nuisance per se analysis,
defendants frame the relevant activity broadly:
pharmaceutical drugs in general.
From this bird’s-eye view,
there cannot be a nuisance per se because plaintiffs cannot show
that the drug distribution business is always a nuisance, as
they must to show nuisance per se.
On the nuisance per
ordinance analysis, defendants contend that because plaintiffs
passed mere resolutions, not formal ordinances, there is no
nuisance per ordinance here. 3
Plaintiffs contest defendants’ framing of both the rule and
of the relevant activity.
The rule that plaintiffs put forward
is that municipalities have standing to sue to abate common law
public nuisances; they just do not have the power to make up
nuisance law out of whole cloth and then summarily enforce it
(as the municipalities in cases that defendants rely on sought
Plaintiffs also frame the conduct at issue more
narrowly, focusing on defendants’ alleged violations of the law
in connection with their drug distribution businesses.
Plaintiffs say that they are trying to abate a public nuisance
arising from defendants’ failure to follow applicable drug
Defendants also contend that even if plaintiffs had passed such
ordinances, they would function as ex post facto laws or bills
of attainder (if they purported to apply retroactively) and
would very likely be preempted by federal law.
distribution laws, not shutter defendants’ entire drug
Applicable West Virginia Law
Limitations on Municipalities’ Nuisance Abatement
The standing rule that defendants set forth comes primarily
from Parker v. City of Fairmont, 79 S.E. 660 (W. Va. 1913).
Parker syllabus states,
Under the provision of the charter of the city of
Fairmont, same as Code 1906, ch. 47, sec. 28, that
“the council shall have power to abate or cause to be
abated anything which, in the opinion of a majority of
the whole council, shall be a nuisance,” the council
may abate only that as a nuisance which is recognized
as such per se, or branded as such by lawful statute
Id. at 660.
In that case, the City of Fairmont’s charter
authorized it “to abate or cause to be abated anything which, in
the opinion of a majority of the whole [city] council, shall be
Id. at 661.
Further, a Fairmont ordinance
provided that, upon a majority vote, the city council could
order the abatement of “any out–house, privy, hog–pen, stable or
If the owner did not comply with the
abatement order, the mayor could “direct the proper officer of
the city” to abate the nuisance by force.
The city ordered that a dye works be torn down.
Notably, the city did not involve the courts before seeking to
tear down this private property.
The lack of due
process and judicial oversight was a particular problem because
the charter provision essentially allowed the opinion of the
city council to determine what nuisance law was.
See id. at
As the Supreme Court of Appeals of West Virginia
observed, the power that the Fairmont city council claimed was
essentially to “make the law and enforce it at the same time in
Id. at 662.
The court did not confront a
situation where a municipality was using the judicial process to
seek relief against what the law already held to be a nuisance.
Instead, the court confronted a situation where a
municipality was making up its own law and then applying that
law to “arbitrarily singl[e] out a lawful business of one
individual and mak[e] the law applicable to him alone.”
This system was untenable because it made everyone in the city
subject not to law but to “the uncontrolled will of temporary
Because the nuisance determination was
based solely on the opinion of the city council, in this
instance the city was functioning as a government of men, not
It was trying to use its “police power of abatement” to
create law and call something a nuisance “which by no law [was]
Cf. Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J.,
dissenting) (“It is the proud boast of our democracy that we
have ‘a government of laws and not of men.’”).
known to be such.”
See id. at 661.
Parker thus holds that a
city may not act as a legislative, executive, and judicial
branch all in one to suddenly decide that private property is a
nuisance and tear it down by force.
Donohoe v. Fredlock, 79 S.E. 736 (W. Va. 1913), upon which
defendants also rely, likewise presented a situation where a
city attempted to tear down private property without court
involvement on the purported power of its just-made-up law (the
“law” of the opinion of the city council).
There, the city
council of the City of Elkins decided a certain fence was a
nuisance, gave the owner “a few hours” to remove it, and, when
that time expired, directed the police to remove it and bill the
property owner for the cost of doing so.
Id. at 736.
Parker, the court disapproved of these “summary proceedings.”
Id. at 736-38.
The city did not claim that the fence was a
nuisance under a statute or the common law, but, as in Parker,
only under the law of “because I said so.”
Nuisance Per Se
“A nuisance per se has been generally defined as an act,
occupation, or structure which is a nuisance at all times and
under any circumstances, regardless of location or
Duff v. Morgantown Energy Assocs., 421 S.E.2d
253, 257 n.8 (W. Va. 1992); Harless v. Workman, 114 S.E.2d 548,
548 (W. Va. 1960).
“[A] lawful business or a business
authorized to be conducted by the government cannot constitute a
nuisance per se.”
Burch v. Nedpower Mount Storm, LLC, 647
S.E.2d 879, 892 (W. Va. 2007).
There are varying degrees of
strictness with which the term “nuisance per se” may be used.
See Frye v. McCrory Stores Corp., 107 S.E.2d 378, 382 (W. Va.
1959) (quoting 66 C.J.S. Nuisances § 9 as follows:
and proper use of property or conduct of business does not
ordinarily create an actionable nuisance, and is never a
‘nuisance per se’ in the strict sense of that term.”).
act involving culpable and unlawful conduct causing
unintentional harm” constitutes an “absolute nuisance,” which is
generally synonymous with a nuisance per se.
See 66 C.J.S.
Nuisances § 3.
In Harless, the “operation by the defendant of a coal
loading tipple and a coal crusher” was not a nuisance per se.
114 S.E.2d at 549, 556.
The court stated,
Such business enterprise was not unlawful in itself,
it did not constitute a nuisance per se, and the
resultant injuries of which plaintiffs complain were
not inflicted unlawfully, wilfully or wantonly. The
business was not concerned with a substance or product
inherently dangerous or deleterious to the health of
Id. at 556.
In State ex rel. Ammerman v. City of Philippi, the court
noted that a tire recapping business is not a nuisance per se:
“No doubt some noises and some odors obnoxious to some
individuals result therefrom.
This is not sufficient, however,
to constitute a business a nuisance per se.”
713–16 (W. Va. 1951).
65 S.E.2d 713,
The city there had an ordinance making
the ability to “erect or operate” any of several enumerated
businesses “or shop of a like kind” subject to the approval of
the city council on a case-by-case basis in the city council’s
Id. at 714-15.
The lack of meaningful standards
bounding the city council’s discretion allowed for the exercise
of power unmoored from any actual law:
Sole discretion is attempted to be vested in the city
council, which it may exercise in the interest of a
favored applicant or against the interest of an
unfavored one. The value of the property of one
citizen could be diminished or destroyed to the
advantage of another property owner. Power granted a
municipality to regulate is not power to destroy.
Such power does not accord with due process of law.
Id. at 715 (emphasis added).
The court there looked to Donohoe as a similar case of a
municipality claiming the power to abate as a nuisance anything
it deemed to be one in its sole discretion and noted that, as in
Donohoe, there was no statute or ordinance to support the
See id. at 716.
relevant conduct at issue was the tire capping business as a
whole because the city council’s denial of the permit prohibited
the construction of the building for the business.
See id. at
At issue in Duff was an alleged prospective nuisance
involving a Morgantown power plant that “was constructed to
produce steam for West Virginia University and electricity for
Monongahela Power Company.”
Id. at 255.
There was a plan in
place “to transport coal, gob, limestone and ash by truck into
and out of the power plant facility.”
injunction against that plan.
Plaintiffs sought an
The court noted that “the
heart of th[at] case” was “the prospective or anticipatory
nature of the alleged nuisance.”
Id. at 257.
alleged nuisance was anticipatory in nature, plaintiffs had to
prove that the execution of the trucking plan would be a
nuisance “beyond all ground of fair questioning.”
Syl. Pt. 3, Chambers v. Cramer, 38 S.E. 691 (W. Va. 1901)).
holding that plaintiffs had not met their burden, the court
noted, “Clearly, trucking is not a nuisance per se.”
Similarly, Burch involved prospective relief.
sought “to permanently enjoin [the defendants] from constructing
and operating [a] wind power facility.”
Burch, 647 S.E.2d at
After noting that “a lawful business or a business
authorized to be conducted by the government cannot constitute a
nuisance per se,” the court concluded that the “wind power
facility cannot be considered a nuisance per se.”
Id. at 892-
It was the operation of a wind facility as a whole that was
alleged to be a nuisance, and the remedy sought was to stop the
business before it even started.
Because the business as a
whole was lawful and government-authorized, it could not be a
nuisance per se.
More Than Two Paths to Municipal Standing
Having carefully reviewed the West Virginia case law upon
which defendants rely, the court disagrees with the rule that
Specifically, the court disagrees that
West Virginia municipalities lack standing to sue to abate a
public nuisance unless it is (1) a nuisance per se or (2) a
nuisance per ordinance.
West Virginia law leaves courtroom
doors open to municipalities to seek relief in a manner
consistent with due process for that which constitutes a public
nuisance under law.
What West Virginia law forbids is summary
municipal abatement of a purported nuisance that is not such
under any law or is only a private nuisance. 5
Parker is the anchor for the case law upon which defendants
In contrast with this case, the municipality in Parker
sought to abate a nuisance summarily and on the exclusive
strength of its own declaration that something constituted a
nuisance (in other words, on the strength no actual law).
The dye works and the fence in Parker and Donohoe,
respectively, would seem to be private nuisances, if nuisances
the extent that plaintiffs here rely on applicable nuisance law
other than their own declaration that defendants’ conduct
constitutes a nuisance (such as the common law), Parker does not
This case does not present the same concerns animating the
The municipalities here are not attempting to
1. “make the law and enforce it at the same time in
individual cases,” Parker, 79 S.E. at 662;
2. bypass the courts and deny defendants due process;
3. “arbitrarily singl[e] out a lawful business . . .
and mak[e] the law applicable to [it] alone,” id.;
4. subject defendants to “the uncontrolled will of
temporary local authorities,” id.
Extending Parker to the facts here stretches Parker too far.
The Supreme Court of Appeals of West Virginia has apparently not
had occasion to address a challenge to municipal standing like
this one, which challenges not the right of municipalities to
act peremptorily on their councilmembers’ opinions of what a
nuisance is and order its abatement, but rather, the right of
municipalities to seek judicial redress to abate something
alleged to be a common law public nuisance.
The Parker court
acknowledged that the City of Fairmont had the power to “abate
what the law holds to be a nuisance.”
See id. at 661-62.
is what plaintiffs seek to do here.
Even if Parker meant only
nuisances per se, such a limitation should not be read to apply
beyond cases like Parker. 6
Parker had less to do with a municipality’s power to seek
judicial redress for a violation of existing law than it had to
do with a municipality’s power to make up nuisance law and then
immediately issue an abatement order, bypassing the courts.
localities truly do not have standing to sue to abate nuisances
unless they are nuisances per se (under defendants’ definition 7)
or nuisances pursuant to an ordinance, it would seem that
localities could not sue to abate the following without an
1. a ranch where cattle are allowed to roam across
public roads 99% of the time;
2. a hotel with a bed bug infestation 99% of the time;
3. a driving range with a faulty net that allows golf
balls to escape and hit pedestrians 99% of the time.
For similar reasons, this case contrasts sharply with Donohoe.
Defendants suggest that in order to be a nuisance per se, acts
not only must be unlawful, but specifically declared a nuisance
under the law. The court’s opinion is that illegal actions can
be nuisances per se without such a specific declaration, but for
purposes of the following examples, adopts defendants’ nuisance
per se rule.
None of these would qualify as nuisances per se under
defendants’ definition because they are generally lawful
businesses and do not constitute a nuisance at all times (1% of
the time, they are not a nuisance).
So, even if these
conditions constitute a public nuisance under West Virginia law,
municipalities cannot sue to abate them under defendants’
municipal standing rule unless there is a statute or ordinance
specifically declaring them to be a nuisance.
Illegal Acts As Public Nuisance Per Se
Even if defendants are correct that municipalities have no
standing to sue in the absence of a nuisance per se or a
nuisance per ordinance, plaintiffs still have standing because
their claims arise from alleged illegal conduct that, if proved,
may constitute a nuisance per se. 8
The court finds plaintiffs’
framing the relevant conduct for the nuisance per se analysis
more persuasive than defendants’ framing.
Thus, the relevant
conduct is the alleged violations of law in connection with
defendants’ distribution of pharmaceutical drugs, not the lawful
business of pharmaceutical drug distribution in general.
The cases suggest that the scope of the activity sought to
be abated defines the relevant conduct.
In Burch, the main case
As to nuisance per ordinance, defendants are correct (and
plaintiffs appear to concede) that plaintiffs did not pass an
ordinance of general applicability to serve as the law grounding
their nuisance claim.
upon which defendants rely to conclude that the lawfulness of a
business precludes its ability to create a nuisance per se, the
“remedy sought” was “an injunction against the construction and
operation of [a] wind power facility.”
647 S.E.2d at 892.
was the facility itself that the court determined not to be a
nuisance per se.
Id. at 893 (“[A]ppellees’ wind power facility
cannot be considered a nuisance per se.”).
The court in Burch
had occasion to discuss nuisances per se only by reference to
the remedy sought, which was to stop the entire wind turbine
project before it even started.
Because the remedy here is much more limited, Burch is not
Unlike the plaintiffs in Burch, plaintiffs here do
not seek to stop defendants’ distribution operations in their
The action here is much more targeted.
remedy for a subset of defendants’ operations:
It seeks a
Plaintiffs frame the nuisance per se as
defendants’ alleged violations of law in connection with
prescription drug distribution.
They seek abatement of those
violations; they do not attack the very existence of defendants,
as the plaintiffs in Burch did. 9
Similarly, in Parker, the city sought to close the dye works
entirely. In Ammerman, the city denied a permit for the
construction of the business (so it could not even begin to
operate). In Harless, although it appears that plaintiffs
sought damages, not an injunction shutting down defendant’s coal
crushing operation, the operation as a whole was the alleged
Moreover, the implications of defendants’ reading of West
Virginia municipal standing law are concerning.
are right, and a company’s engaging in a generally legal line of
business “conclusively establishes that their business activity
cannot constitute a per se nuisance,” (ECF No. 358, at 4), then
it would seem that none of the following can be a nuisance per
1. a dental office that allows unlicensed staff to
perform root canals when the dentist is on vacation;
2. a local restaurant’s habitual service of alcohol to
minors without checking identification; or
3. a local lawn maintenance company that applies
illegal pesticides throughout the city.
Because the overall businesses of practicing dentistry, running
a restaurant, and operating a lawn maintenance company are
lawful, illegal acts that further those businesses would be
shielded from the law of public nuisance regardless of the
threat to public health.
nuisance, and a jury found that the defendant had “exercised due
care and observed reasonable precautions to minimize the problem
of coal dust necessarily incident to the operation of his lawful
business enterprise.” 114 S.E.2d at 556. By contrast, here
plaintiffs allege specific illegal conduct and seek to abate the
results of that conduct. In Duff, trucking—not operation of a
power plant—was the relevant activity for the nuisance per se
analysis, but that was because only that aspect of the business
was at issue.
In the absence of West Virginia case law that is on point,
the court finds instructive the case of Courtland Company v.
Union Carbide Corporation, No. 2:19-CV-00894, 2020 WL 5047131,
at *12 (S.D.W. Va. Aug. 26, 2020).
There, plaintiffs alleged a
public nuisance per se against Union Carbide for the maintenance
of a rail yard and landfill as open dumps.
Id. at *6.
lawfulness of Union Carbide’s general line of business was not
But the court there held that the plaintiff stated
a claim for public nuisance per se because it alleged illegal
actions in relation to certain of Union Carbide’s business
Courtland alleges, in its complaint, that UCC has
operated the Filmont Landfill and the UCC Railyard as
“open dumps,” by collecting, processing, and disposing
of both solid waste and hazardous waste without the
required permit and without complying with applicable
waste disposal standards, which makes both properties
public nuisances per se under federal and state laws.
Id. at *12.
The West Virginia statute prohibiting open dumps does not
expressly declare that an open dump is a nuisance; it simply
declares the maintenance of one illegal.
See W. Va. Code Ann.
The same is true of the federal statutes.
U.S.C. §§ 6944-6945.
The court did not find such a specific
Instead, the allegations of illegal
conduct that “operate[d] to hurt or inconvenience an indefinite
number of persons” sufficiently stated a cause of action for
public nuisance per se.
Courtland, 2020 WL 5047131, at *9.
general lawfulness of Union Carbide’s business did not preclude
it from committing a nuisance per se.
Although the alleged illegal conduct here is not as obvious
as the maintenance of an open dump, the same principles apply
and lead the court to find that the alleged illegal acts in
relation to defendants’ prescription drug distribution, if
proved, may constitute a nuisance per se.
For the reasons expressed above, defendants’ motion for
summary judgment (ECF No. 238) is DENIED.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to those counsel of record who have registered
to receive an electronic NEF.
IT IS SO ORDERED this 31st day of March, 2021.
David A. Faber
Senior United States District Judge
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