Mckiver v. Murphy-Brown LLC (In re NC Swine Farm Nuisance Litig.), Master Case No. 5:15-CV-00013-BR

• Decision Date: 08 November 2017
• Docket Number: Master Case No. 5:15-CV-00013-BR
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: IN RE: NC SWINE FARM NUISANCE LITIGATION THIS DOCUMENT RELATES TO: McKiver v. Murphy-Brown LLC, No. 7:14-CV-180-BR McGowan v. Murphy-Brown LLC, No. 7:14-CV-182-BR Anderson v. Murphy-Brown LLC, No. 7:14-CV-183-BR Gillis v. Murphy-Brown LLC, No. 7:14-CV-185-BR Artis v. Murphy-Brown LLC, No. 7:14-CV-237-BR

IN RE: NC SWINE FARM NUISANCE LITIGATION

THIS DOCUMENT RELATES TO:
McKiver v. Murphy-Brown LLC, No. 7:14-CV-180-BR
McGowan v. Murphy-Brown LLC, No. 7:14-CV-182-BR
Anderson v. Murphy-Brown LLC, No. 7:14-CV-183-BR
Gillis v. Murphy-Brown LLC, No. 7:14-CV-185-BR
Artis v. Murphy-Brown LLC, No. 7:14-CV-237-BR

Master Case No. 5:15-CV-00013-BR

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

November 8, 2017

ORDER

The 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 above.

A 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.

I. STANDARD OF REVIEW: MOTIONS FOR SUMMARY JUDGMENT

Summary 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.

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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.

In 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).

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In a 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).

II. STANDARD OF REVIEW: MOTIONS TO SEAL

The parties and the Independent Growers have filed motions to seal various documents filed in connection with certain motions for partial summary judgment.¹ 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.

After 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,

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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)).

Here, 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 a case,

"[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] conclusory assertion")).

Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07-CV-275-D, 2011 WL 901958, at *1 (E.D.N.C. Mar. 15, 2011).

To 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

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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.

Lastly, 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.

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With these standards in mind, the court considers the partial summary judgment and related motions.

III. SUFFICIENCY OF PLAINTIFFS' PROPERTY INTERESTS

One 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

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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 neighbor.
Much confusion exists in respect to

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