Thornburgh v. Ford Motor Co.
| Decision Date | 31 March 2021 |
| Docket Number | Case No. 4:19-cv-01025-HFS |
| Parties | Otto E. Thornburgh, on behalf of himself and all others similarly situated, Plaintiff, v. Ford Motor Co., Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Otto E. Thornburg has filed a putative class action against Ford Motor Company ("Ford"), alleging that Ford, through its operation of the Ford Kansas City Assembly Plant ("Plant") releases odors that "invade Plaintiff's property, causing property damage through negligence, gross negligence, and nuisance." (Compl. ¶ 1.) Plaintiff seeks damages in excess of $5,000,000.00 on behalf of himself and the putative class which is defined as including "[a]ll owner/occupants and renters of residential property residing within two (2) miles of the Plant's property boundary." (Compl. ¶¶ 8, 65, 68.) Ford has filed a motion to dismiss both counts pursuant to Federal Rule 12(b)(6). (Doc. 14).
Defendant seeks dismissal of plaintiff's complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. When considering a 12(b)(6) motion, the court assumes the factual allegations are true and construes them in favor of the plaintiff. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007).
Rule 8(a)(2) provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." In Twombly, the Supreme Court clarified that Rule 8(a)(2) requires complaint to contain more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. Id. at 555. Specifically, to survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted as true, to state a claim for relief that is "plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 667-78 (2009). The court must accept as true only the factual allegations, not conclusions. Id.
Ford does not contest the facts as alleged by plaintiff at this stage of the proceedings. Instead, Ford argues that there is no cause of action for nuisance or negligence as a matter of law. Because there is no pending contest as to the alleged facts, facts will be discussed as necessary to resolving the motion.
A federal court sitting in diversity applies the substantive law of the state in which the court sits. Urban Hotel Dev. Co. v. President Dec. Co., L.C., 535 F.2d 874, 877 (8th Cir. 2008). The parties agree that Missouri law controls. To theextent defendant relies on "foreign law," including trial court unreported decisions, the defense is speculative regarding Missouri law.
1. Failure to Allege Type of Nuisance.
Defendant first argues that Plaintiff's Nuisance claim should be dismissed for failure to specify whether the nuisance is public or private and for failure to characterize the alleged nuisance as either permanent or temporary.
In Missouri, a public nuisance is any unreasonable interference with common community rights such as the public health, safety, peace, morals, or convenience. City of Lee's Summit v. Browning, 722 S.W.2d 114, 115 ( Mo. Ct. App. 1986). In contrast, a private nuisance rests on tort liability and involves a "nontrespassory invasion of another's interest in the private use and enjoyment of land". Smith v. Republic Svs. Inc., 2017 WL 4038143, at *2 (E.D.Mo.) (citations omitted.). Both types of nuisance claims require plaintiff to show a causal link between the defendants and the alleged nuisance. Id. (citing City of St. Louis v. Varahi, Inc., 39 S.W.3d 531 (Mo. App. 2014)).
Defendant has not cited authority requiring plaintiff to specifically allege whether he is asserting a public or private nuisance. Nor does this distinction seem required by Missouri law as the Missouri Supreme Court has explicitly held that public and private nuisances are not "mutually exclusive approaches to an alleged nuisance factual situation." State ex rel. Dresser Industries, Inc. v.Ruddy, 592 S.W.2d 789, 792 (Mo. 1980). "While distinguishable, common-law 'public' and 'private' nuisance law often are overlapping and interrelated." Id. "[T]he only distinguishing characteristic between a public nuisance and a private nuisance is whether damages arise from an offender's unreasonable interference with either a public community right or a private property right." Baker v. Martin Marietta Materials, Inc., 745 F.3d 919, 927-928 (8th Cir. 2014) ().
Permitting both types of nuisance to proceed as a general nuisance claim is also consistent with "mixed" nuisance theories as stated in the Restatement 2d. of Torts, § 821C, Ill. 2(e):
"[w]hen the nuisance, in addition to interfering with the public right, also interferes with the use and enjoyment of the plaintiff's land, it is a private nuisance as well as a public one. In this case the harm suffered by the plaintiff is of a different kind and he can maintain an action not only on the basis of the private nuisance itself, but also, if he chooses to do so, on the basis of the particular harm from the public nuisance.
Plaintiff alleges that Defendant's conduct unreasonably interfered with the breathable, unpolluted air in the community as well as plaintiff's private property interests at the same time. As a result, the facts allege a claim for private and public nuisance. See also Severa v. Solvay Specialty Polymers USA, LLC, 2021 WL 912850, at *10 (D.N.J. Mar. 10, 2021) (); Beck v. Stony Hollow Landfill, Inc., 2017 WL 1551216, at * 3 (D. Ohio May 1, 2017) ().
In Missouri, a nuisance can be temporary or permanent. Cook v. Desoto Fuels, Inc., 169 SW.3d 94, 106 (Mo.App. E.D. 2005). A nuisance is temporary if it is abatable; it is permanent if abatement is impactable or impossible to abate. Id.
Ford argues that plaintiff's nuisance claim should be dismissed because plaintiff does not identify whether the alleged nuisance is temporary or permanent. Although the distinction between temporary and permanent nuisance may have consequences as to the statute of limitations and measure of damages, the distinction is not necessarily required to a nuisance claim.1 See McGuire v. Kenoma, LLC, 375 S.W.3d 157, 164 (Mo. App. W.D. 2012) (). See also Cook, 169 S.W.3d at 107 (statute of limitations). "And where the nature of the cause of action is doubtful as between a temporary or permanent nuisance, courts should treat it as temporary." Cook, 169 S.W.3d at 107.
In Missouri, a public nuisance is defined as "an offense against the public order and economy of the state" that "violates the public right's to life, health and the use of property, while at the same time annoys, injures, endangers rendersinsecure, interferes with, or obstructs the rights or property of the whole community, or neighborhood, or of any considerable number of persons." City of Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606, 616 (Mo.App. W.D. 2009). There are two essential elements when a private person attempts to bring a public nuisance action under Missouri law: (1) there must be an "unreasonable interference with common community rights, such as the public health, safety, peace, morals or convenience," Vonder Haar ex rel. Mehochko v. Six Flags, 261 S.W.3d 680, 687 (Mo. Ct. App. 2008); and (2) there must be "a special injury to [plaintiff] that differs in kind, and not just degree, from the injury to the general public." 44 Plaza, Inc. v. Gray-Pac Land Co., 845 S.W.2d 576, 580 (Mo.App.E.D. 1992).The Missouri Supreme Court has stated that a public nuisance becomes a private tort when an individual shows a particular damage of a kind not shared with the rest of the public . . . the private tort accrues to recompense damage particular to the person and not shared with the general public. City of St. Louis v. Benjamin Moore Co., 226 S.W.3d 110, 116 (Mo. 2007).
Ford argues that to the extent plaintiff alleges a public nuisance, the public nuisance claim should be dismissed because: (a) plaintiff fails to plead any special injury recognized by Missouri courts; (b) plaintiff's alleged special injury necessarily cannot be special because a large part of the community suffers from it as well; (c) recent decisions dismissed public nuisance claims very similar to what is asserted here for failing to adequately allege a "special injury;" and (d)plaintiff has not adequately alleged that a common community right has been interfered with. (Doc. 15, p.4).
Ford argues that Plaintiff offers a quintessential bare-bones allegation of a special injury: "Plaintiff suffered and continues to suffer special harm relating to the use and enjoyment of their land and property, and decreased property values—damages of a different kind that are additional to those suffered by the public at-large." . Specifically, Ford argues that plaintiff's allegation of special injury is insufficient because the Complaint provides no factual support for it, and because under long-established Missouri law, plaintiff's claims of diminished property value and loss of use and enjoyment are not a special injury under Missouri law,...
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