Johnson v. 3M Company
| Decision Date | 21 December 2022 |
| Docket Number | 21-13663 |
| Citation | 55 F.4th 1304 |
| Parties | Jarrod JOHNSON, Individually, and on Behalf of a Class of persons similarly situated, Plaintiff-Appellee, v. 3M COMPANY, et al., Defendants, Water, Light, and Sinking Fund Commission of City of Dalton, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Hirlye R. Lutz, III, F. Jerome Tapley, Brett Cooper Thompson, Nina Towle Herring, Adam Wade Pittman, Robert Watson, Cory Watson, PC, Birmingham, AL, Gary A. Davis, James S. Whitlock, Davis & Whitlock, PC, Asheville, NC, Ryals Drayton Stone, The Stone Law Group - Trial Lawyers, LLC, Rome, GA, William Sims Stone, Stone Law Group, Atlanta, GA, for Plaintiff-Appellee.
Lindsey B. Mann, Brooks M. Smith, E. Fitzgerald Veira, Troutman Pepper Hamilton Sanders, LLP, Atlanta, GA, for Defendant-Appellant.
Before Luck, Brasher, and Ed Carnes, Circuit Judges.
Dalton, Georgia, which has been called the "carpet capital of the world," boasts on its website that the city is "unrivaled in its production of carpet."1 Since more than ninety percent of the world's carpet comes from manufacturers in and around Dalton, it would be hard to argue with that. But the title and boast say nothing about any pollution resulting from all of that carpet production. The allegations in this lawsuit do.
Plaintiff Jarrod Johnson alleges that toxic chemicals used during the carpet manufacturing process have been allowed to seep into the rivers that supply drinking water to communities near Dalton, including Rome, Georgia and the rest of Floyd County. On behalf of himself and a proposed class of water subscribers and ratepayers, he sued Dalton Utilities, a municipal corporation that operates Dalton's wastewater treatment system, for violating the Clean Water Act and for creating a public nuisance. His lawsuit claims that Dalton Utilities has caused the City of Rome's domestic water supply to be contaminated with dangerously high levels of toxic chemicals. As the case comes to us, the question is whether Dalton Utilities is entitled to municipal immunity from Johnson's nuisance abatement (injunctive relief) claim. The answer is that it is not.
The facts, as alleged in the third amended complaint (the operative one) and which we assume to be true for present purposes, see McGroarty v. Swearingen , 977 F.3d 1302, 1306 (11th Cir. 2020), are these.
More than ninety percent of the world's carpet comes from manufacturers in and around Dalton. During the manufacturing process the facilities use man-made chemicals called per- and polyfluoroalkyl substances (PFAS) that repel oil and water and, when applied to carpets, make them resistant to stains. But the chemical properties that make PFAS ideal for carpet manufacturing also make them toxic and everlasting (hence the nickname "forever chemicals"). When released into the environment PFAS do not break down, and they tend to collect and spread in water. They have been linked to many adverse health effects, including developmental defects in fetuses, cancer
, immunotoxicity, thyroid disease, ulcerative colitis, and high cholesterol.
After the carpet manufacturing facilities use PFAS, they discharge industrial wastewater containing dangerously high levels of the chemicals directly into Dalton's wastewater treatment system. That system is owned and operated by Dalton's Board of Water, Light and Sinking Fund Commissioners, which does business as Dalton Utilities. Dalton Utilities collects and treats the wastewater, then pumps it to a 9,800-acre Riverbend Wastewater Land Application System where it is sprayed across the surface of the land. Instead of degrading during treatment, the PFAS accumulate in the Land Application System and flow into the neighboring Conasauga River and its tributaries. After that, they travel downstream to the Oostanaula River, the primary source of Rome, Georgia's drinking water, exposing its residents to "dangerously high levels" of the chemicals.
In 2016 the City of Rome implemented an emergency filtration process to remove some PFAS from its water supply. To cover the cost of this emergency filtration system and to pay for a new, permanent one, the City imposed a surcharge on the price of water for all ratepayers. The City estimates that the rate will increase by at least 2.5% each year for the foreseeable future.
Johnson, a Rome resident, filed this action in the Superior Court of Floyd County in 2019 on behalf of himself and a proposed class of water subscribers and ratepayers who are harmed by the contamination of their drinking water and the payment of surcharges. He named as defendants various chemical suppliers and carpet manufacturers and alleged state law claims for tortious conduct, public nuisance, and nuisance abatement. The case was later removed to the Northern District of Georgia under the Class Action Fairness Act, 28 U.S.C. § 1332(d).
Johnson brought Dalton Utilities into the case with his first amended complaint, which alleged a Clean Water Act claim against it. That first amended complaint also alleged a Clean Water Act claim against the Dalton/Whitfield Regional Solid Waste Authority and reorganized the state law tort claims, adding a negligence per se claim against the carpet manufacturers and chemical suppliers. Then Johnson amended his complaint a second time to correct misnomers and clarify which chemical supplier defendants are subject to his negligence per se claim. That was followed by a third amended complaint, which added some defendants, substituted others, and updated the Clean Water Act allegations. He also asserted in it public nuisance and nuisance abatement claims against Dalton Utilities. His third amended complaint generally alleges that the contamination of Rome's drinking water endangers his health, damages his property, interferes with his use and enjoyment of his property, and increases the price of his water. It seeks compensatory and punitive damages and injunctive relief.
Dalton Utilities moved to dismiss the third amended complaint for failure to state a claim. Relevant to this appeal, the motion asserted that Dalton Utilities is entitled to municipal immunity2 from Johnson's nuisance abatement claim. Relying on the Georgia Supreme Court's Sustainable Coast decision, the motion contended that municipalities are immune from a nuisance claim unless the claim seeks monetary relief for the taking or damaging of private property. See Ga. Dep't of Nat. Res. v. Ctr. for a Sustainable Coast, Inc. , 294 Ga. 593, 755 S.E.2d 184 (2014). Dalton Utilities asserted that Johnson's nuisance claim sought only injunctive relief for personal injury, and as a result municipal immunity applied to that claim against Dalton Utilities.
After a hearing, the district court denied Dalton Utilities' motion to dismiss Johnson's nuisance abatement claim on municipal immunity grounds. Relying on Gatto v. City of Statesboro , 312 Ga. 164, 860 S.E.2d 713 (2021), the court found that "as it stands now, [Georgia] law allows for a nuisance claim against a municipality for injury to property (or the use and enjoyment thereof) or personal injury." And the court expressed its view that Johnson had adequately alleged a nuisance claim against Dalton Utilities both for injury to property and for personal injury. This is Dalton Utilities' interlocutory appeal of the district court's order.
While this appeal was pending, Johnson filed with Dalton Utilities' consent a fourth amended complaint in the district court. This latest amended complaint makes two changes to the claims against Dalton Utilities: it adds another Clean Water Act claim, and it withdraws the public nuisance claim that sought damages. But it leaves the nuisance abatement claim seeking injunctive relief intact, and that's the only claim at issue in this appeal.
Johnson has moved to dismiss this appeal, contending that we lack jurisdiction because the district court's order denying Dalton Utilities' motion to dismiss the nuisance abatement claim is not a final order. An order denying a motion to dismiss is not a final decision, and we lack jurisdiction to review it "unless it is otherwise made appealable by statute or jurisprudential exception." Parker v. Am. Traffic Sols., Inc. , 835 F.3d 1363, 1367 (11th Cir. 2016) (quotation marks omitted); see also 28 U.S.C. § 1291 (). The only exception that could conceivably apply here is the collateral order doctrine. "That doctrine permits the immediate appeal of an interlocutory order if it (1) conclusively determines an important issue that is both (2) completely separate from the merits of the case and (3) effectively unreviewable on appeal from a final judgment." Parker , 835 F.3d at 1367.
Under the collateral order doctrine, an order denying state sovereign immunity "is immediately appealable if state law defines the immunity at issue to provide immunity from suit rather than just a defense to liability." Id. Under Georgia law state sovereign immunity is immunity from suit, and an order denying state sovereign immunity is immediately appealable. Griesel v. Hamlin , 963 F.2d 338, 341 (11th Cir. 1992).
We have not decided whether the denial of a motion to dismiss based on Georgia municipal immunity, as distinguished from Georgia state immunity, is immediately appealable. Dalton Utilities says that there is no meaningful difference for interlocutory appeal purposes because, like Georgia state sovereign immunity, Georgia municipal immunity is immunity from suit. We agree. See Primas v. City of Milledgeville , 296 Ga. 584, 769 S.E.2d 326, 328 (2015) () (emphasis added); Koehler v. Massell , 229 Ga. 359, 191 S.E.2d 830, 833 (1972) (...
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