United States District Court, E.D. North Carolina, Western Division
IN RE NC SWINE FARM NUISANCE LITIGATION THIS DOCUMENT RELATES TO: McKiver
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
EARL BRIT, SENIOR U.S. DISTRICT JUDGE.
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
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.
STANDARD OF REVIEW: MOTIONS FOR SUMMARY JUDGMENT
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.
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).
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).
STANDARD OF REVIEW: MOTIONS TO SEAL
parties and the Independent Growers have filed motions to
seal various documents filed in connection with certain
motions for partial summary judgment. 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.
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)).
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
“[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]
Silicon Knights, Inc. v. Epic Games, Inc., No.
5:07-CV-275-D, 2011 WL 901958, at *1 (E.D. N.C. Mar. 15,
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.
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.
these standards in mind, the court considers the partial
summary judgment and related motions.
SUFFICIENCY OF PLAINTIFFS' PROPERTY INTERESTS
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
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)).
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
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
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.”).
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.
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.
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.
Motion for Partial Summary Judgment
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.
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).
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.
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.
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.
Motion to Seal
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.”).)
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.
Motion for Partial Summary Judgment
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
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 ...