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In re NC Swine Farm Nuisance Litigation

United States District Court, E.D. North Carolina, Western Division

November 8, 2017

Murphy-Brown LLC, No. 7:14-CV-180-BR McGowan
Murphy-Brown LLC, No. 7:14-CV-182-BR Anderson
Murphy-Brown LLC, No. 7:14-CV-183-BR Gillis
Murphy-Brown LLC, No. 7:14-CV-185-BR Artis
Murphy-Brown LLC, No. 7:14-CV-237-BR



         The twenty-six cases comprising this litigation concern swine farm operations in eastern North Carolina. In each case, plaintiffs, individuals who live in close proximity to specified farms, seek to recover monetary damages for nuisance and negligence. Defendant owns all the swine on the farms. To date, detailed discovery has been conducted in five “Discovery Pool Cases, ” which are captioned above.

         A number of motions are pending before the court. Defendant has filed several motions for partial summary judgment, an omnibus motion to sever and for separate trials, and a motion in limine. Plaintiffs have filed several cross-motions for partial summary judgment. The parties and non-parties Greenwood Livestock, LLC; Joey Carter Farms; Pagle Corporation; Bandit 3, LLC; Kinlaw Farms, LLC; J. Michael Hope; and Godwin Twins, LLC (collectively, the “Independent Growers”) have filed motions to seal and related motions. Facts, as necessary, are included in the discussion of these motions below.


         Summary judgment is appropriate “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.” Fed.R.Civ.P. 56(a). The court must ask “‘whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict . . . .'” Maryland Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Summary judgment should be granted only in those cases “in which it is perfectly clear that no genuine issue of material fact remains unresolved and inquiry into the facts is unnecessary to clarify the application of the law.” Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 214 (4th Cir. 1993). “[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.

         In considering a motion for summary judgment, the court is required to draw all reasonable inferences in favor of the non-moving party and to view the facts in the light most favorable to the non-moving party. Id. at 255. The moving party has the burden to show an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The party opposing summary judgment must then demonstrate that a triable issue of fact exists; he may not rest upon mere allegations or denials. Anderson, 477 U.S. at 248. When considering cross-motions for summary judgment, the court evaluates each motion separately on its own merits according to this standard. See Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). “At bottom, the district court must determine whether the party opposing the motion for summary judgment has presented genuinely disputed facts which remain to be tried. If not, the district court may resolve the legal questions between the parties as a matter of law and enter judgment accordingly.” Thompson Everett, Inc. v. Nat'l Cable Advert., L.P., 57 F.3d 1317, 1323 (4th Cir. 1995).

         In a diversity case such as this, the court applies the controlling state's substantive law, which here is North Carolina. See Private Mortg. Inv. Servs., Inc. v. Hotel & Club Assocs., Inc. 296 F.3d 308, 312 (4th Cir. 2002). If the state's highest court “has spoken neither directly nor indirectly on” the precise issue at hand, this court must “predict how that court would rule if presented with the issue, ” considering the state's intermediate appellate court's decisions unless “other persuasive data” suggests that the state's highest court would decide otherwise. Id. (internal quotation marks and citation omitted). The court “may also consider, inter alia: restatements of the law, treatises, and well considered dicta” in predicting how the state's highest court might rule. Id. (citation omitted).


         The parties and the Independent Growers have filed motions to seal various documents filed in connection with certain motions for partial summary judgment.[1] Prior to sealing documents, a district court must first give the public adequate notice and a reasonable opportunity to be heard. In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir. 1984). In this case, the motions to seal were filed publicly and have been pending for some time. Plaintiffs oppose some of the motions to seal. No member of the public has filed any opposition to the motions to seal.

         After providing public notice and an opportunity to respond to a motion to seal, the court must determine the source of the public's right to access the documents. Stone v. Univ. of Md., 855 F.2d 178, 180 (4th Cir. 1988). Public access to documents arises from two sources: the First Amendment and the common law. Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014). “For a right of access to a document to exist under either the First Amendment or the common law, the document must be a ‘judicial record.'” United States v. Appelbaum, 707 F.3d 283, 290 (4th Cir. 2013) (citation omitted). “Judicial records” include not only orders filed by the court but also documents filed with the court that “play a role in the adjudicative process . . . .” Id. However, “the mere filing of a document with the court does not render the document judicial.” In re Policy Mgmt. Sys. Corp., Nos. 94-2254, 94-2341, 1995 WL 541623, at *4 (4th Cir. Sept. 13, 1995) (citing United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)).

         Here, the First Amendment right to access is potentially implicated because the subject documents were filed in connection with summary judgment motions. See Doe, 749 F.3d at 267 (“We have squarely held that the First Amendment right of access attaches to materials filed in connection with a summary judgment motion.” (citation omitted)). In such a case,

“[w]hen the First Amendment provides a right of access, a district court may restrict access ‘only on the basis of a compelling governmental interest, and only if the denial is narrowly tailored to serve that interest.'” Virginia Dep't of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004). The burden of establishing the showing necessary to overcome a First Amendment right of access falls upon the party seeking to keep the information sealed. Id. Specific reasons must be presented to justify restricting access to the information. Id. (citing Press-Enterprise Co. v. Superior Court, 478 U.S.1, 15 (1986) (“The First Amendment right of access cannot be overcome by [a] conclusory assertion”)).

Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07-CV-275-D, 2011 WL 901958, at *1 (E.D. N.C. Mar. 15, 2011).

         To support their sealing request and overcome any First Amendment right of access, defendant and the Independent Growers rely primarily on the argument that the information sought to be sealed is commercially sensitive. In some cases, the First Amendment right of access may be overcome if the movant sufficiently “demonstrate[s] that the documents in question contain confidential and proprietary commercial information, including information relating to alleged trade secrets and other highly sensitive financial and business information belonging to the parties as well as third-parties, information which is of utmost importance to them but not generally available to the public or bearing importance to any public matters.” Id. at *2.

         Lastly, the court must consider less drastic alternatives to sealing, and if it decides to seal documents, it must “state the reasons for its decision to seal supported by specific findings, and the reasons for rejecting alternatives to sealing in order to provide an adequate record for review.” Knight Publ'g, 743 F.2d at 235; see also Stone, 855 F.2d at 181. Less drastic alternatives to sealing entire documents include filing redacted versions of the documents. See Silicon Knights, 2011 WL 901958, at *2.


         With these standards in mind, the court considers the partial summary judgment and related motions.


         One ground on which defendant moves for partial summary judgment is certain plaintiffs in the Discovery Pool Cases have insufficient property interests to maintain their nuisance claims. (DE # 315.) The identified plaintiffs are not property owners. Rather, they are adults related to the property owners and live on the subject properties either in the property owners' residences or in trailers. Because these “guests” do not pay prescribed rent nor have they entered into rental agreements, defendant argues, they are “licensees, tenants-at-will, mere occupants, or squatters” and cannot establish a prima facie claim for nuisance. (Mem., DE # 316, at 4.) In response, plaintiffs contend that so long as one lawfully possesses or occupies the subject property, one can recover for a nuisance.

The law of private nuisance rests on the concept embodied in the ancient legal maxim Sic utere tuo ut alienum non laedas, meaning, in essence, that every person should so use his own property as not to injure that of another. As a consequence, a private nuisance exists in a legal sense when one makes an improper use of his own property and in that way injures the land or some incorporeal right of one's neighbor.
Much confusion exists in respect to the legal basis of liability in the law of private nuisance because of the deplorable tendency of the courts to call everything a nuisance, and let it go at that. The confusion on this score vanishes in large part, however, when proper heed is paid to the sound propositions that private nuisance is a field of tort liability rather than a single type of tortious conduct; that the feature which gives unity to this field of tort liability is the interest invaded, namely, the interest in the use and enjoyment of land; that any substantial nontrespassory invasion of another's interest in the private use and enjoyment of land by any type of liability forming conduct is a private nuisance; that the invasion which subjects a person to liability for private nuisance may be either intentional or unintentional; that a person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case; and that a person is subject to liability for an unintentional invasion when his conduct is negligent, reckless or ultrahazardous.

Morgan v. High Penn Oil Co., 77 S.E.2d 682, 689 ( N.C. 1953) (citations omitted). “‘The essence of a private nuisance is an interference with the use and enjoyment of land. The ownership or rightful possession of land necessarily involves the right not only to the unimpaired condition of the property itself, but also to some reasonable comfort and convenience in its occupation.'” Kaplan v. Prolife Action League of Greensboro, 431 S.E.2d 828, 838 ( N.C. Ct. App. 1993) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 87, at 619 (5th ed. 1984)).

         Defendant accurately points out that certain cases do refer to the plaintiff's “property interest” in the context of nuisance. See Kent v. Humphries, 281 S.E.2d 43, 45 ( N.C. 1981) (framing one element in the nuisance inquiry as “[D]id plaintiff have sufficient property interest in the rented space to maintain a nuisance action?”); Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 553 S.E.2d 431, 437 ( N.C. Ct. App. 2001) (“Once plaintiff establishes that the invasion or intrusion is unreasonable, plaintiff must prove the invasion caused substantial injury to its property interest.” (citations omitted)). However, the court does not read these cases to mean that the plaintiff must hold fee simple title or another possessory interest (more than a tenancy at will) to recover in nuisance in every instance.

         For example, in Kent v. Humphries, the North Carolina Supreme Court was faced with the plaintiff-tenant claiming the defendants' (the landlord and his corporation) operation of a plastics plant constituted a nuisance, resulting in the constructive eviction of the beauty salon she operated in the defendants' shopping center. The defendants argued that the plaintiff occupied the premises under a void lease, and therefore, as a tenant at will, she could be evicted at any time and there was no violation of her limited property rights. 281 S.E.2d at 45. Relying on the Restatement (Second) of Property, Landlord and Tenant, overruling prior inconsistent authority, and opting for a fairer rule, the court held that the tenancy created was actually a month-to-month tenancy. Id. at 46. As such, the court found that the plaintiff had a sufficient property interest in the rented space to maintain a nuisance claim. Id. Kent is more about landlord-tenant law than it is about nuisance law. Because of the nature of what the plaintiff was claiming- constructive eviction-the parties' relationship was particularly relevant.

         Under the circumstances here, the real property relationship between the owners and individuals who reside on their properties has no bearing on defendant's liability for a nuisance. The rule defendant asks the court to impose would permit a wife who owns the affected property to recover, but her husband who resides with her could not recover unless his name is on the deed to the property or he has entered into a formal rental arrangement with his wife. There is no indication in North Carolina case law that its courts would so restrict nuisance claims. It is enough that a plaintiff lawfully occupies the affected property with a relative. See Restatement (Second) of Torts § 821E (Am. Law Inst. 1979) (“For a private nuisance there is liability only to those who have property rights and privileges in respect to the use and enjoyment of the land affected, including (a) possessors of the land . . . .”); id. § 821E cmt. d (“‘Possession' is not limited to occupancy under a claim of some other interest in the land, but occupancy is a sufficient interest in itself to permit recovery for invasions of the interest in the use and enjoyment of the land.”).

         Defendant additionally contends that two plaintiffs, Gertie Jacobs and Eddie Nicholson, Jr., have not even occupied any affected property. In support of this contention, defendant relies on the fact that Jacobs' voter registration and driver's license and Nicholson's voter registration, driver's license, and medical records reflect addresses different from the affected properties at which they claim to live. Defendant urges the court to disregard these plaintiffs' deposition testimony regarding the discrepancies on the ground that the testimony is “self-serving.” The court declines to do so.

         It is true that a court should not “find a genuine dispute of material fact based solely on [the non-movant's] self-serving testimony.” Harris v. Home Sales Co., 499 F. App'x 285, 294 (4th Cir. 2012) (emphasis added) (citing Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004)). However, here, both plaintiffs' testimony about where they live is corroborated by sworn testimony from other witnesses. Of course, at trial defendant is free to cross-examine plaintiffs and the other witnesses about the discrepancies, but the credibility determination will be left to the jury.

         In sum, plaintiffs have come forward with evidence that they lawfully occupy the affected properties. That interest is sufficient to support a claim for private nuisance. Accordingly, defendant's motion for partial summary judgment on this ground will be denied.


         A. Motion for Partial Summary Judgment

         In its answers in the Discovery Pool Cases, defendant raised an affirmative defense based on the application of North Carolina's right-to-farm law, N.C. Gen. Stat. § 106-701. Plaintiffs contend that they are entitled to summary judgment on this defense. (DE # 305.) Defendant argues that plaintiffs' motion should be denied because genuine issues of material fact exist regarding the elements of the defense and plaintiffs are not entitled to judgment as a matter of law.

         North Carolina's right-to-farm “law [] protects existing farming operations, ” Durham v. Britt, 451 S.E.2d 1, 3 ( N.C. Ct. App. 1994), “[w]hen other land uses extend into agricultural . . . areas . . . by limiting the circumstances under which an agricultural . . . operation may be deemed to be a nuisance, ” N.C. Gen. Stat. § 106-700. The relevant portion of the law provides,

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.

Id. § 106-701(a). However, nuisances resulting from negligent or improper operation are exempt from the application of this law. Id. § 106-701(a2).

         Plaintiffs have come forward with evidence that they or their relatives have lived on the affected properties prior to the subject swine farms beginning operations. Defendant responds with evidence that conditions in the areas around the swine farms have changed since the swine farms began operating. Specifically, defendant cites to evidence that the number of people living within the vicinity of the farms has increased. While changed conditions are certainly relevant, under the plain language of the statute, “an agricultural operation that was not a nuisance when it began cannot become a nuisance due to ‘changed conditions in or about the locality thereof . . . .'” Mayes v. Tabor, 334 S.E.2d 489, 491 ( N.C. Ct. App. 1985) (emphasis added) (quoting N.C. Gen. Stat. § 106-701). In other words, for the right-to-farm law to apply, it must be on account of changed conditions in the locality outside the agricultural operation that the agricultural operation has become a nuisance.

         In Mayes v. Tabor, the North Carolina Court of Appeals addressed this very issue. There, a private summer camp had been in operation 60 years, and the husband and wife plaintiffs had owned the camp for 19 years. Id. at 489-90. The defendants had owned adjacent property for 15 years and on which they raised hogs. Id. at 490. The plaintiffs alleged that the defendants' hog operation constituted a nuisance based on the stench from the hogs. Id. The defendants argued they were entitled to summary judgment based on the right-to-farm law. In rejecting this argument, the court recognized, “The [plaintiffs'] nuisance action is not based on ‘changed circumstances in or about the locality' as this phrase is intended by the statute. This is not a case in which the non-agricultural use extended into an agricultural area. [The camp] has been in existence for sixty years.” Id. at 491.

         Similarly, here, plaintiffs' use of their properties as residences did not extend into an agricultural area. Their land use had been in existence well before the operations of the subject farms began. The fact that some plaintiffs may have used their land for agricultural purposes in addition to a residence or that other agricultural uses have pre-existed in the locality does not alter the court's analysis. At bottom, plaintiffs' nuisance claims have nothing to do with changed conditions in the area, and therefore, as a matter of law, the right-to-farm law does not bar those claims. Accordingly, plaintiffs are entitled to summary judgment on this defense.[2]

         B. Motion to Seal

         Defendant filed a related motion to seal. (DE # 437.) Defendant requests that the court maintain under seal plaintiffs' Exhibit 6, (DE ## 427-29), which defendant characterizes as its Standard Operating Procedures (“SOPs”), and plaintiffs' unredacted reply statement of facts, (DE # 426), which briefly discusses portions of the SOPs. Plaintiffs do not oppose defendants' motion to seal. (See Resp., DE # 464, at 5 (“As a matter of judicial efficiency and to avoid creating unnecessary issues, Plaintiffs withdraw their objection to sealing of the [SOP] Manual, in the context of the present summary judgment motion, and in light of the prior Orders.”).)

         The SOPs are not relevant to the court's analysis, and the court has not considered plaintiffs' Exhibit 6 or the statements in its reply statement of facts regarding the SOPs. Therefore, there is no right of public access to Exhibit 6 or plaintiffs' unredacted document that discusses the exhibit. Accordingly, the court will allow defendant's motion to seal.


         A. Motion for Partial Summary Judgment

         Plaintiffs move for partial summary judgment on the majority of the affirmative defenses defendant raised in its answers in the Discovery Pool Cases. (DE # 321.) In subsequent briefing, defendant withdrew certain defenses in the Discovery Pool Cases only, and plaintiffs withdrew their motion as to other defenses. Based on those actions, plaintiffs' motion is moot as to the following defenses: no legally compensable injury (3), failure to initiate mediation (5), reasonable use of the swine farms (6-7), reasonable actions of defendant and others and compliance with relevant laws and standards (8-9), no duty of care owed (10), lack of proximate cause (11), failure to mitigate damages (14), res judicata/collateral estoppel (19), prior settlements/release and accord and satisfaction (20), availability of special medical damages (24), and unconstitutionality of punitive damages (26).[3]

         A number of the partial summary judgment motions and the motion to sever and for separate trials relate to some of the affirmative defenses defendant raised. Specifically, those motions relate to the defenses of insufficiency of property interests (15), misjoinder of claims (16), severance of claims (17), laches/estoppel/waiver (18), and future damages (23). The court has already resolved by prior order whether estoppel bars certain plaintiffs' claims. (6/2/17 Order, DE # 454.) The court has resolved the defense of insufficiency of property ...

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