Darney v. Dragon Products Co., LLC, 08-cv-47-P-S.

• Decision Date: 07 January 2009
• Docket Number: No. 08-cv-47-P-S.,08-cv-47-P-S.
• Citation: 592 F.Supp.2d 180
• Parties: Stephen and Kathy DARNEY, Personally and on behalf of K.D. and S.D., Plaintiffs, v. DRAGON PRODUCTS COMPANY, LLC, Defendant.
• Court: U.S. District Court — District of Maine

592 F.Supp.2d 180

Stephen and Kathy DARNEY, Personally and on behalf of K.D. and S.D., Plaintiffs, v. DRAGON PRODUCTS COMPANY, LLC, Defendant.

No. 08-cv-47-P-S.

United States District Court, D. Maine.

January 7, 2009.

Peggy L. McGehee, Perkins, Thompson, P.A., Portland, ME, for Plaintiffs.

Eric J. Wycoff, Peter W. Culley, Pierce, Atwood LLP, Portland, ME, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

GEORGE Z. SINGAL, District Judge.

Plaintiffs Stephen and Kathy Darney, personally and on behalf of their children K.D. and S.D. (collectively, "the Darneys"), assert claims for common-law trespass, statutory trespass, nuisance, negligence, and injunctive relief, arising out of the operation of a cement-manufacturing plant near their home. Before the Court is Defendant's Motion for Summary Judgment (Docket # 35), in which Defendant Dragon Products Company, LLC ("Dragon") asserts that Plaintiffs' claims are barred, in whole or in part, by the doctrines of claim preclusion or issue preclusion. As explained herein, the Court DENIES Defendant's Motion for Summary Judgment (Docket # 35).

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). "In this regard, `material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, `genuine' means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party." Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. See Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); see also Fed.R.Civ.P. 56(e). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal punctuation omitted).

II. FACTUAL BACKGROUND

Dragon operates a cement-manufacturing plant in Thomaston, Maine, where it has quarried limestone on-site since 1928. The Darneys purchased a nearby residence in March 2002. Thereafter, they allegedly began to suffer personal injury and property damage resulting from Dragon's operation of the plant.

On November 12, 2004, the Darneys filed a complaint against Dragon in Knox County Superior Court ("Darney I").¹ They asserted claims for common-law trespass, statutory trespass, nuisance, strict liability, negligence, and injunctive relief. (See Compl. (Docket # 38-3) ¶¶ 21-45.) The parties proceeded to litigate this suit in state court, conducting extensive discovery, designating expert witnesses, and filing pre-trial motions.

On November 17, 2005, Dragon filed a Motion for Partial Summary Judgment as to the Darney I claims for nuisance, strict liability, and negligence for personal injury. On October 26, 2007, after the Darneys filed and supplemented their opposition to Dragon's motion, and filed additional motions to continue consideration, the Knox County Superior Court granted Dragon summary judgment as to the aforementioned claims. The court placed what remained of the Darney I suit on its March 2008 trial list soon thereafter.

On January 30, 2008, the Darneys filed the instant action in Knox County Superior Court ("Darney II") and moved to consolidate the two lawsuits. In response, Dragon removed the Darney II suit to this Court on February 13, 2008. The Darneys initially moved to remand the Darney II suit to state court, but ultimately withdrew that motion after the state court signaled its unwillingness to consolidate. Thus, Darney II remained in this Court, while Darney I proceeded toward trial in Knox County Superior Court.

On May 27, 2008, the parties filed in Knox County Superior Court a joint stipulation of dismissal, with prejudice, of Darney I. Unfortunately, this stipulation makes no mention of the pending Darney II lawsuit. On June 18, 2008, Dragon moved to amend its Darney II answer to assert res judicata defenses; the Darneys consented provisionally, maintaining that these new affirmative defenses were meritless.

Dragon now moves for summary judgment, asserting that the parties' dismissal with prejudice of Darney I bars further litigation of Darney II in this Court, pursuant to the doctrine of claim preclusion. In response, Plaintiffs contend that the Darney II complaint alleges only new, post-November 12, 2004 claims that were not previously adjudicated and are not barred by the doctrine of claim preclusion. Alternatively, Dragon maintains that the state court's entry of partial summary judgment warrants dismissal of Plaintiffs' nuisance and personal injury claims, pursuant to the doctrine of issue preclusion.²

III. DISCUSSION

A. Claim Preclusion

The doctrine of claim preclusion prevents relitigation of claims or causes of action previously decided. State law determines the claim-preclusive effect in federal court of the parties' dismissal of Darney I. See Giragosian v. Ryan, 547 F.3d 59, 63 (1st Cir.2008). Pursuant to Maine law, claim preclusion bars a subsequent lawsuit if: (1) the same parties or their privies are involved in both actions; (2) a valid final judgment was entered in the prior action; and (3) the matters presented for decision in the second action were, or might have been, litigated in the first action. See Portland Water Dist. v. Town of Standish, 940 A.2d 1097, 1099-1100 (Me. 2008) (citation and internal punctuation omitted). The parties agree that the first two criteria are satisfied here.³ They disagree as to the third criterion: whether the causes of action in the two lawsuits are sufficiently identical.

Maine courts apply a transactional test to determine the identity of multiple causes of action. See Thibeault v. Brackett, 938 A.2d 27, 30 (Me.2007). Specifically, courts examine "the aggregate of connected operative facts that can be handled together conveniently for purposes of trial to determine if [the causes of action] were founded upon the same transaction, arose out of the same nucleus of operative facts, and sought redress for essentially the same basic wrong." Portland Water Dist., 940 A.2d at 1100 (citation and internal punctuation omitted). They also consider whether the operative facts "are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." Beegan v. Schmidt, 451 A.2d 642, 645 (Me.1982) (quoting Restatement (Second) of Judgments § 24(2)).

Of course, courts have long abided the "unremarkable principle" that "[c]laims arising subsequent to a prior action ... are not barred by res judicata regardless of whether they are premised on facts representing a continuance of the same `course of conduct.'" Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 383 (2d Cir.2003); see also Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955) (earlier judgment "cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case."). This principle has proven particularly apposite in cases involving continuing torts, where each successive injury generates an independent cause of action. See Restatement (Second) of Judgments § 26(1)(e) (res judicata does not apply "in a case involving a continuing or recurrent wrong, [and] the plaintiff is given an option to sue ... from time to time for the damages incurred to the date of suit"); Restatement (Second) of Torts § 161, cmt. b; Restatement (Second) of Torts § 930, cmt. a; Murray v. Bath Iron Works Corp., 867 F.Supp. 33, 48 (D.Me.1994) (recognizing availability of successive causes of action for continuing trespass and nuisance under Maine law). As the Supreme Court instructed long ago: "That both suits involved `essentially the same course of wrongful conduct' is not decisive. Such a course of conduct—for example, an abatable nuisance—may frequently give rise to more than a single cause of action." Lawlor, 349 U.S. at 327-28, 75 S.Ct. 865.⁴

The critical question, then, is whether Plaintiffs' Darney II claims arose subsequent to Darney I. Dragon adduces the following evidence in support of claim preclusion: (1) factual and legal overlap between the two lawsuits; (2) Plaintiffs' view of Darney I as encompassing post-November 2004 claims; and (3) Plaintiffs' characterization of their Darney II claims as "the same or substantially the same" as the Darney I claims. In response, Plaintiffs maintain that Darney II alleges only post-November 12, 2004 claims that were not previously adjudicated.

1. Similarity Between the Suits

Dragon asserts that Plaintiffs complained of the same continuing harms, and sought redress for the same injuries, in Darney I and Darney II....