Barnette v. Grizzly Processing, LLC

• Decision Date: 22 August 2011
• Docket Number: Civil No. 10–77–ART.
• Citation: 809 F.Supp.2d 636
• Parties: Susan BARNETTE, et al., Plaintiffs, v. GRIZZLY PROCESSING, LLC, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

809 F.Supp.2d 636

Susan BARNETTE, et al., Plaintiffs,

v.GRIZZLY PROCESSING, LLC, et al., Defendants.

Civil No. 10–77–ART.

United States District Court,E.D. Kentucky,Southern Division, Pikeville.

Aug. 22, 2011.

Ned Pillersdorf, Pillersdorf, Derossett & Lane, Prestonsburg, KY, for Plaintiffs.

Clyde Bishop Johnson, Jr., Stephen C. Cawood, Cawood & Johnson, PLLC, Pineville, KY, D. B. Kazee, Kazee Law Office, Prestonsburg, KY, Brian M. Johnson, Bruce E. Cryder, Joseph A. Tarantelli, Matthew A. Stinnett, Greenebaum, Doll & McDonald, PLLC, Lexington, KY, Michael J. Schmitt, Porter, Schmitt, Banks & Baldwin, Paintsville, KY, for Defendants.

MEMORANDUM OPINION & ORDER

AMUL R. THAPAR, District Judge.

Imagine walking outside every morning and finding a layer of black, soot-like dust on your home, car, and yard. You wipe it away, but it returns. Your children return from outside with black streaks on their clothes. You can no longer use your swimming pool because of the dust. Close to your home is a coal processing plant. You realize that your dust problems began around the time the Plant began operating and believe the two to be connected. The Plaintiffs in this action allege they face this situation daily. They claim that coal dust from the Defendants' coal processing plant has interfered with their lives and damaged their properties. The Defendants now move for summary judgment against the Plaintiffs on a number of grounds. For the following reasons, those claims are granted in part and denied in part.

I. BACKGROUND

The Plaintiffs in this action all have one thing in common: they live near a coal screening plant in Banner, Kentucky (the “Banner Plant”). The Defendant, Grizzly Processing, Inc., operated the plant from April 2007 to April 2008. R. 17 at 7. Thereafter, the Defendant Frasure Creek Mining, LLC, assumed operations and continues to do so. Starting in 2006, the Plaintiffs claim that coal dust and noise from the Plant began to interfere with their ability to use and enjoy their residences. Id. Black, soot-like stains appeared on buildings and roofs, R. 147–4 at 3, R. 102–2 at 71, flowers in gardens failed to grow, id. at 17, and children could not play outside as they once did, all because of the coal dust, R. 103–2 at 7. One Plaintiff testified that, after mowing his lawn, he resembled an underground miner because of the coal dust in the air. Id. Another explained how she uses a pressure washer to clean the black dust off of her home. R. 114–2 at 29–30. Their accounts, while all unique, explain how the dust has impacted their homes and lives.

The Plaintiffs originally filed suit against Frasure Creek and Grizzly on May 21, 2010, in Floyd Circuit Court. R. 1–2. The Plaintiffs alleged claims sounding in trespass, nuisance, and assault and battery. Frasure Creek and Grizzly then removed the action to federal court on June 15, 2010. R. 1.

This suit is not the first one filed against Frasure Creek and Grizzly by residents living near the Banner Plant. In 2007, another set of plaintiffs sued both Defendants. Crisp v. Grizzly Processing, LLC, & Frasure Creek Mining, LLC, Floyd Circuit Court, Division I, Civil Action No. 07–CI–1384 (“ Crisp”). The Crisp plaintiffs eventually settled with the Defendants on August 19, 2010. R. 63–6.

The Barnette Plaintiffs' claims are now before the Court.

II. DISCUSSION

A. Service of Process. Among the procedural problems that have plagued this action since its filing, improper service has been the most salient. Federal Rule of Civil Procedure 4(m) gives a plaintiff 120 days to accomplish service following the filing of the complaint. If a defendant is not served within 120 days, Rule 4(m) requires that the Court dismiss the action without prejudice or order that service be made within a specified time. Fed.R.Civ.P. 4(m). The Plaintiffs in this matter filed their complaint on May 21, 2010. They finally served the Defendants on June 27, 2011—over a year later. R. 142; R. 143. The Plaintiffs knew of this deficiency: both Frasure Creek and Grizzly listed the failure to effect proper service as an affirmative defense in their answers to the Plaintiffs' amended complaint. R. 20 at 6; R. 40 at 5. Even so, dismissal is not warranted as the Defendants claim.

First and foremost, dismissal is inappropriate because service has finally occurred. Had the Defendants raised this issue in a motion to dismiss soon after removing the action to federal court, dismissal would have been appropriate. Cf. Morris & Co. v. Skandinavia Ins. Co., 279 U.S. 405, 409, 49 S.Ct. 360, 73 L.Ed. 762 (1929) (explaining that a defendant does not waive objections to service of process by removing an action from state to federal court); Gen. Inv. Co. v. Lake Shore & M.S. Ry. Co., 250 F. 160, 165 (6th Cir.1918). Yet they never filed such a motion.

Second, the parties have devoted significant time and resources to this matter, and dismissing the action without prejudice at this time would serve no purpose, especially in light of the Plaintiffs' decision to finally effect service. And, neither party would be prejudiced by permitting this action to continue—in fact, just the opposite is true. As a result, the Defendants' motions to dismiss are denied.

B. Failure to Disclose Expert Report. Frasure Creek and Grizzly also have filed a motion to exclude the testimony of one of the Plaintiffs' experts, Jack Spadaro. R. 121. Spadaro previously held the position of Superintendent of the National Mine Health and Safety Academy. According to the Scheduling Order entered on August 23, 2010, the Plaintiffs had until April 15, 2011, to disclose their experts and expert reports under Rule 26(a)(2). R. 13. While the Plaintiffs listed Spadaro as a possible expert witness in their initial disclosures, they failed to ever provide the required expert report. The Plaintiffs did, however, file three other expert reports from real estate appraisers on April 15, indicating their awareness of the deadline and requirements for such disclosures.

Under Rule 37(c), a party who fails to provide information or identify a witness as required by Rule 26(a) is prohibited from using that witness at trial “unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The Plaintiffs claim that their failure to disclose the report was harmless because the Defendants already had all of the information they needed about Spadaro. The Plaintiffs previously retained Spadaro as an expert in the Crisp litigation. As part of his participation in that suit, he inspected the Banner Plant on October 27, 2009, and shared his opinions in a report prepared by the Crisp plaintiffs for Frasure Creek and Grizzly. R. 146–1 at 2. The two Defendants then deposed Spadaro on November 4, 2009. R. 146–3. After that case settled, the Barnette Plaintiffs filed this action, once again identifying Spadaro in their initial disclosures. However, neither Grizzly nor Frasure Creek deposed Spadaro during the course of this litigation. And to date, the Plaintiffs have not filed an expert report that strictly complies with Rule 26(a)(2).

According to the advisory committee's notes to Rule 37(c), the failure to comply with discovery will be considered “harmless” when it involves “an honest mistake on the part of a party coupled with sufficient knowledge on the part of the other party.” See Sommer v. Davis, 317 F.3d 686, 692 (6th Cir.2003). Although the Plaintiffs' excuse for failing to comply with the federal rules on expert disclosures borders on negligence as opposed to an honest mistake, see Hall v. Furest, No. 02–70625, 2006 WL 2375677, at *3 (E.D.Mich. Aug. 16, 2006), evidence suggests that the Defendants nevertheless knew of Spadaro and the contents of any testimony he would give. The Plaintiffs' initial disclosures stated that Spadaro's testimony would be similar to that disclosed in Crisp, and nothing indicates that the Plaintiffs sought to surprise Frasure Creek or Grizzly at trial. Also, the Plaintiffs mention that their attorney received a “verbal inquiry” from the Defendants about Spadaro one month before the disclosure deadline. R. 146–1 at 5.

The exclusion of expert testimony is a harsh sanction. Still, “[d]istrict courts have broad discretion to exclude untimely disclosures of expert-witness testimony.” Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir.2000). But this sanction is not warranted here. Nothing about the Plaintiffs' failure suggests an attempt to “hide the ball” to gain a tactical advantage. Further, the Defendants appear to have had sufficient knowledge of Spadaro and his expected testimony. Thus, the Plaintiffs' failure was harmless. The Court denies the Defendants' motion, but will restrict Spadaro's testimony to only that information contained in the report attached to the Plaintiffs' response at R. 146–2. Also, the Defendants shall have thirty days from the date of this Order to depose Spadaro. The Plaintiffs shall ensure his availability.

C. Motion for Summary Judgment Against All Plaintiffs. Frasure Creek and Grizzly have filed motions for summary judgment against the Plaintiffs collectively and against individual Plaintiffs. R. 123; R. 124. The collective motion for summary judgment is based on the following: (1) the Plaintiffs' inability to establish causation for trespass and nuisance, (2) the Plaintiffs' failure to provide evidence of both cost to repair and diminution in market value for damage to their property, (3) the absence of evidence supporting Plaintiffs' nuisance claims based on noise disturbances, (4) the admissions of certain Plaintiffs that they have not suffered personal injuries, (5) in the cases where Plaintiffs have alleged personal injuries, their failure to produce expert reports or evidence supporting their claims, and (6) the failure to produce evidence of lost rental income. Id.

1. Causation. The Plaintiffs maintain that Frasure Creek and Grizzly should be held liable for trespass and nuisance....