Aana v. Pioneer Hi-Bred Int'l, Inc.

• Decision Date: 09 August 2013
• Docket Number: Civil No. 12–00231 LEK–BMK.
• Citation: 965 F.Supp.2d 1157
• Court: U.S. District Court — District of Hawaii
• Parties: Jim AANA, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. PIONEER HI–BRED INTERNATIONAL, INC., a DuPont Business and Iowa Corporation, Gay & Robinson, Inc., a Hawaii corporation; Robinson Family Partners, A general partnership registered in Hawaii; and Doe Defendants 1–10, Defendants.

965 F.Supp.2d 1157

Jim AANA, et al., on behalf of themselves and all others similarly situated, Plaintiffs,

v.PIONEER HI–BRED INTERNATIONAL, INC., a DuPont Business and Iowa Corporation, Gay & Robinson, Inc., a Hawaii corporation; Robinson Family Partners, A general partnership registered in Hawaii; and Doe Defendants 1–10, Defendants.

Civil No. 12–00231 LEK–BMK.

United States District Court, D. Hawai‘i.

Aug. 9, 2013.

Patrick Kyle Smith, Lynch, Hopper, Salzano & Smith, Kailua, HI, Gerard A. Jervis, Law Offices of Gerard A. Jervis, Kailua, HI, for Plaintiffs.

Adam D. Friedenberg, Billie D. Hausburg, Clement L. Glynn, James M. Hanlon, Jr., Lauren E. Wood, Glynn and Finley,LLP, Walnut Creek, CA, Michael Purpura, Michael J. Scanlon, Carlsmith Ball LLP Honolulu, Honolulu, HI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS GAY & ROBINSON, INC. AND ROBINSON FAMILY PARTNERS' MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT UNDER FED. R. CIV. P. 12(B)(6); AND GRANTING IN PART AND DENYING IN PART DEFENDANTS GAY & ROBINSON, INC., ROBINSON FAMILY PARTNERS, AND PIONEER HI–BRED INTERNATIONAL, INC.'S MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT

LESLIE E. KOBAYASHI, District Judge.

On February 20, 2013, Defendants Gay & Robinson, Inc. and Robinson Family Partners (“the Robinson Defendants”) filed their Motion to Dismiss Plaintiffs' Second Amended Complaint Under Fed.R.Civ.P. 12(b)(6) (“the Robinson Motion”). [Dkt. no. 140.] On the same date, the Robinson Defendants and Pioneer Hi–Bred International, Inc.¹ (“Pioneer”) filed a Motion to Dismiss Plaintiffs' Second Amended Complaint (“Defendants' Motion”). [Dkt. no. 141.] Plaintiffs Jim Aana, et al., on behalf of themselves and all others similarly situated (collectively, “Plaintiffs”), filed their memorandum in opposition to the Robinson Motion on May 24, 2013, and the Robinson Defendants filed their reply (“Robinson Reply”) on June 10, 2013. [Dkt. nos. 193, 201.] Plaintiffs also filed their memorandum in opposition to Defendants' Motion on May 27, 2013, and Defendants filed their reply (“Defendants' Reply”) on June 10, 2013. [Dkt. nos. 194, 202.] These matters came on for hearing on June 24, 2013. Appearing on behalf of Defendants were Michael J. Scanlon, Esq., Michael M. Purpura, Esq., and Adam D. Friedenberg, Esq. Appearing on behalf of Plaintiffs were P. Kyle Smith, Esq., and Gerard R. Jervis, Esq. After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, the Robinson Motion and Defendants' Motion are HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.

BACKGROUND

Plaintiffs filed their original Complaint on December 13, 2011 in the state court. On May 4, 2012, Defendants filed their Notice of Removal of Mass Action pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, as well as under the Class Action Fairness Act, 28 U.S.C. § 1453 (“CAFA”). [Dkt. no. 1; id., Exh. A (Complaint).] Plaintiffs filed a Motion to Remand on May 25, 2012, [dkt. no. 9,] which the district judge denied on August 16, 2012, 2012 WL 3542500 [dkt. no. 30].² Plaintiffs filed a Renewed Motion for Remand on February 7, 2013. [Dkt. no. 129.] On April 26, 2013, 2013 WL 1817264, this Court denied that motion, ruling that there is diversity jurisdiction over the instant case pursuant to CAFA. [Dkt. no. 173.]

On February 6, 2013, Plaintiffs filed their Second Amended Complaint (Property Related Claims) (“Second Amended Complaint”). [Dkt. no. 128.] According to the Second Amended Complaint, in approximately August of 1998, the Robinson Family Partners leased fields to the east of Waimea, Kauai, to Gay & Robinson, Inc., which in turn leased it to Pioneer. [Second Amended Complaint at ¶ 10.] “Pioneer uses the fields ... to conduct open air testing of genetically modified (“GMO”) crops as part of Pioneer's Waimea Research Center.” [ Id. at ¶ 12 (footnote omitted).] The Court will refer to the fields as “the GMO Test Fields.” Plaintiffs allege that poor soil conservation practice have led to the migration of pollutants, such as dust and pesticides, that blow into the Waimea community, damaging Waimea residents' homes and creating a health hazard. [ Id. at ¶¶ 15–17, 30–33.] Plaintiffs allege that Defendants have breached their common law duties, as well as their duties under state laws and local ordinances such as the Hawaii Air Pollution Control Act, Haw.Rev.Stat. Chapter 342B, Haw.Rev.Stat. § 149A–31, and Kauai Ordinance 808 (“Ordinance 808”). [ Id. at ¶¶ 27–28.] Plaintiffs also allege that the Robinson Defendants, through their historic use of pesticides on their other properties, have an understanding of the harmful effects of pesticide and dust migration. Despite having this knowledge, the Robinson Defendants failed to:

a) investigate Pioneer's conservation and farming practices; b) investigate the degree of danger to Waimea residents and the environment posed by Pioneer's pesticides; c) require Pioneer to implement measures to prevent the discharge of pollutants like dust and pesticides from Defendants' GMO Test Fields; and d) ... implement any measures itself to prevent the migration of pollutants from the GMO Test Fields into the Waimea community and environment.

[ Id. at ¶ 39.]

Plaintiffs allege that, in June 2000, the Waimea residents gave Pioneer a Petition For Cleaner Air (the “Waimea Petition”), which contained complaints about the impact of fugitive dust and chemicals from the GMO Test Fields. [ Id. at ¶ 42; id., Exh. 5 (Waimea Petition).] On October 31, 2000, Pioneer responded to the Waimea Petition by letter, affirming its commitment to protecting the environment and the Waimea community (“October 2000 Response Letter”). [Second Amended Complaint, Exh. 6 (October 2000 Response Letter).] Pioneer also represented that it was taking various steps such as, “decreasing vehicular traffic on farm roads, installing irrigation along the western edge of the GMO Test Fields to encourage the growth of a vegetation shield, [and] reducing vehicle speeds on the station to 10 mph....” [Second Amended Complaint at ¶¶ 45–46.] Despite these representations, Plaintiffs allege that they saw no changes and continued to feel the effects from the pollutants.

Plaintiffs allege that Pioneer's disregard of the impact to Waimea violated Ordinance 808, [ id. at ¶ 50,] which requires the implementation of “ ‘Best Management Practices' or ‘BMPs' [which] means activities, practices, facilities, and/or procedures that will to the maximum extent practicable prevent the discharge of pollutants, including sediment and other contaminants, from a construction site.” [ Id. at ¶ 56 (footnote and some quotation marks omitted).] Plaintiffs allege that, “[i]n 2002, Pioneer requested an Agricultural Exemption under Ordinance 808 for working the GMO Test Fields, which [would] exempt[ ] Pioneer's grubbing of its GMO Test Fields from oversight by the Kauai County Engineer and the necessity to obtain a permit under Ordinance 808.” [ Id. at ¶ 62 (footnote omitted).] As part of its application, Pioneer submitted a conservation plan (“2002 Conservation Plan”). Plaintiffs allegethat Pioneer did not implement the elements of the plan, and dust and pesticides from Pioneer's operations continued to harm the Waimea residents, [ Id. at ¶¶ 64–67; id., Exh. 9 (2002 Conservation Plan).]

Plaintiffs also allege that, as part of Pioneer's response to complaints from the Waimea community in 2010, Pioneer issued a letter dated December 2011, which represented that it had been following reasonable agricultural practices (“December 2011 Letter”). Plaintiffs allege that these representations were false. [Second Amended Complaint at ¶ 179; id., Exh. 12 (December 2011 Letter).]

Plaintiffs allege that the Waimea residents only recently discovered that Defendants failed to implement the 2002 Conservation Plan. Plaintiffs state that they learned of this through the March 3, 2011 Notice of Grubbing Violation—Sedimentation & Erosion Control Ordinance 808 TMK: (4) 1–7–005:004 issued to Defendants by the County of Kauai Department of Public Works (“Notice of Violation”). [Second Amended Complaint at ¶ 71; id., Exh. 10 (Notice of Violation).] The Notice of Violation stated that Defendants were in violation of Ordinance 808 because they failed to maintain the GMO Test Fields in a condition that would prevent damage by sedimentation to area waters and the property of others. [Second Amended Complaint at ¶ 72.] Plaintiffs allege that, after the Notice of Violation,

Waimea Residents now know that not only did Pioneer and the Robinson Entities fail to implement the minimal conservation measures—much less best management practices—from 2002 to 2010 required within the 2002 Conservation Plan, but that the Robinson Entities also leased approximately 1000 additional acres to Pioneer in 2010 that Pioneer began immediately grubbing without a permit, conservation plan, or Ag exemption.

[ Id. at ¶ 78 (emphases in original).]

Plaintiffs' Second Amended Complaint alleges the following claims: (1) negligence against all Defendants for failure to use due care (Count I); (2) negligence against all Defendants for failure to investigate and warn (Count II); (3) negligence per se against all Defendants (Count III); (4) strict liability against Pioneer (Count IV); (5) trespass against all Defendants (Count V); (6) nuisance against all Defendants (Count VI); (7) negligent and intentional misrepresentation against all Defendants (Count VII); and (8) landlord liability for the acts of a tenant against the Robinson Defendants (Count VIII).

Plaintiffs seek the following relief jointly and severally against Defendants: general, special, and consequential damages; diminution in value to Waimea residents' real property; costs and reasonable expenses to cure and mitigate conditions; preliminary and permanent injunctive relief requiring Defendants to investigate and implement measures...