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Ictech-Bendeck v. Progressive Waste Solutions of La, Inc.

United States District Court, E.D. Louisiana

August 29, 2019

PROGRESSIVE WASTE SOLUTIONS OF LA, INC., ET AL., Defendants Applies to All Cases

         SECTION: “E” (5)



         Before the Court is a Motion to Dismiss filed by Defendants Louisiana Regional Landfill Company, Waste Connections US, Inc., Waste Connections Bayou, Inc., Jefferson Parish, and Aptim Corp.[1] Plaintiffs Elias Jorge “George” Ictech-Bendeck, Savannah Thompson, Nicole M. Landry-Bourdreaux, Larry Bernard, Sr., and Mona Bernard, individually, and on behalf of similarly situated individuals, oppose the motion.[2]Defendants filed a reply.[3] For the following reasons, the motion is DENIED.


         This case concerns the operation of the Jefferson Parish Landfill (“the Landfill”) in Waggaman, Louisiana. According to Plaintiffs, around August 1, 2017, the Landfill began emitting noxious odors, which Plaintiffs allege consist primarily of methane and hydrogen sulfide gases, into surrounding neighborhoods.[4] Over the next year, Plaintiffs, who are Jefferson Parish residents and domiciliaries, [5] filed state-court class action suits against Defendants. Defendants are Jefferson Parish, which owns and contracts with others to operate the Landfill; Aptim Corporation, which manages the gas and leachate collection systems of the Landfill; and three entities that operate the Landfill: Louisiana Regional Landfill Company (formerly known as IESI LA Landfill Corporation); Waste Connections Bayou, Inc. (f/k/a Progressive Waste Solutions of LA, Inc.); and Waste Connections US, Inc.[6] Defendants removed these suits to federal court, [7] and the suits were consolidated.[8]After consolidation, Plaintiffs filed the Master Complaint now subject to this Motion to Dismiss.[9]

         In their complaint, Plaintiffs allege odors from the Landfill have unreasonably interfered with their use and enjoyment of immovable property in violation of Louisiana law.[10] Defendants filed the motion to dismiss that is now before the Court under Federal Rule of Civil Procedure 12(b)(6).


         Pursuant to Rule 12(b)(6), a district court may dismiss a complaint, or any part of it, for failure to state a claim upon which relief may be granted if the plaintiff has not set forth factual allegations in support of his or her claim that would entitle him to relief.[11]“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[12] “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.”[13] The court, however, does not accept as true legal conclusions or mere conclusory statements, and “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”[14] “[T]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements” or “naked assertion[s] devoid of further factual enhancement” are not sufficient.[15]

         In summary, “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[16] “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.”[17] “Dismissal is appropriate when the complaint ‘on its face show[s] a bar to relief.'”[18]


         Defendants argue the Court should dismiss Plaintiffs' case because Plaintiffs fail to state claims for nuisance, [19] negligence, [20] and premises liability, [21] and fail to sufficiently plead class allegations.[22] In the alternative, Defendants argue the Court should stay Plaintiffs' action under the doctrine of primary jurisdiction pending the resolution of certain administrative enforcement proceedings.[23]

         Although Plaintiffs' complaint mentions causes of action for negligence, gross negligence, and potential premises liability, at oral argument, Plaintiffs' counsel clarified the only cause of action brought by Plaintiffs, individually and on behalf of a class, is Plaintiffs' nuisance claim under articles 667-669.[24]

         Plaintiffs' complaint sets forth factual allegations strong “enough to raise a right to relief above the speculative level”[25] with respect to their nuisance claim. Accordingly, Plaintiffs' nuisance claim survives this motion to dismiss.

         I. Plaintiffs' Complaint States a Claim for Nuisance

         Under Louisiana law, nuisance claims are governed by Louisiana Civil Code articles 667-669.[26] These articles impose on property owners certain legal servitudes known as “obligations of vicinage.”[27] The Louisiana Supreme Court has observed articles 667-669 “embody a balancing of rights and obligations associated with the ownership of immovables. As a general rule, the landowner is free to exercise his rights of ownership in any manner he sees fit. . . . However, his extensive rights do not allow him to do “real damage” to his neighbor.[28]

         Louisiana Civil Code article 667 defines nuisance:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

         Excluding certain ultrahazardous activities (which are not alleged in this case), to bring a successful nuisance claim under this provision, a plaintiff must prove a defendant is: (1) a proprietor who (2) negligently (3) conducts ‘work' on his property (4) that causes damage to his neighbor.[29]

         In this case, Plaintiffs allege Defendants violate article 667 by creating “a nuisance through the emission of noxious odors into the air in and around the JP Landfill, which unreasonably interferes with Plaintiffs' use and enjoyment of their property.”[30] All parties agree Plaintiffs have alleged Defendants are “proprietors” who “conduct work on their property, ” the Landfill.[31] Similarly, Defendants do not put the negligence element at issue; under their nuisance theory, Plaintiffs sufficiently allege Defendants knew or should have known the Landfill's odors were causing harm.[32] The only disputed element is whether Plaintiffs alleged Defendants' work on the Landfill “caused damage to his neighbor.”

         In particular, Defendants argue Plaintiffs fail to plead this element, and as a result fail state a claim for nuisance under article 667, because Plaintiffs (1) do not allege an interest in real property that neighbors the Landfill, (2) do not claim the odors from the Landfill are unreasonable or excessive, and (3) do not assert the odors from the Landfill caused their harm.[33] Defendants arguments fail. Plaintiffs' complaint sufficiently alleges they have an interest in property neighboring the Landfill and suffer unreasonable interference with the use of that property because of the noxious odors emitted from the Landfill.

         A. Plaintiffs' complaint alleges an interest in immovable property neighboring the Landfill

         Liability under article 667 arises “when activity by one party holding a right to immovable property has caused damages to a party holding a right to neighboring property.”[34]

         1. Plaintiffs pleaded a sufficient property interest

         Under article 667, a plaintiff's interest in neighboring property can be an ownership interest, leasehold interest, third-party interest, or more generally the interest of “a person whose right derives from the owner.”[35] In this case, Plaintiffs allege they, along with prospective class members, are “resident[s] of and domiciled in” Jefferson Parish.[36] Moreover, the Complaint states “Defendants created a nuisance . . . which unreasonably interferes with Plaintiffs' use and enjoyment of their property.”[37] Taken together, these statements are sufficient “factual content t[o] allow[] the court to draw the reasonable inference”[38] that Plaintiffs “have some interest in an immovable.”[39]

         2. Plaintiffs allege their property neighbors Defendants' property

         “In its ordinary meaning, ‘neighbor' is a person who lives near another.”[40]Louisiana law defines “neighbor” on a case-by-case basis.[41] According to the Fifth Circuit, there must be “some propinquity” between the properties of the neighbor and the proprietor.[42] A mere “causal nexus” between the use of a property and harm to another is insufficient to make those properties “neighbors.”[43] What qualifies as “some propinquity, ” however, is fact specific and may change based on the harm alleged (for example, the radius of neighbors surrounding a loud manufacturing plant may be much smaller than the radius of neighbors surrounding a nuclear waste facility).[44]

         On the other hand, Louisiana courts have held “the word ‘neighbor' as used in Article 667 is indefinite and refers to any land owner whose property may be damaged irrespective of the distance his property may be from that of the proprietor whose work caused the damage.”[45] Federal courts have acknowledged this precedent.[46]

         In this case, Plaintiffs allege they, and any prospective class members, have a property interest within Jefferson Parish, specifically including, but not limited to, the neighborhoods of Waggaman, River Ridge, and Harahan.[47] Plaintiffs allege they are harmed by the noxious odors emanating from the Landfill.[48] Whether article 667 requires “some propinquity” between the neighbor and proprietor or merely a causal connection between the acts of a defendant property owner and the damages suffered by a plaintiff, Plaintiffs have sufficiently alleged they have an interest in property that neighbors the Landfill as their property is both in the same parish as the Landfill and is adversely affected by the odors the Landfill emits. Accordingly, Plaintiffs have alleged they are the Landfill's neighbors under Louisiana Civil Code article 667.

         B. Plaintiffs' complaint alleges the Landfill's odors are excessive and unreasonable

         To be liable under article 667, a proprietor's use of land must “deprive[] his neighbor of enjoyment or cause[] damage to him.”[49] Article 668 limits this recovery by providing a proprietor may permissibly cause “some inconvenience” to a neighbor, [50] and article 669 “requires tolerance of lesser inconveniences.”[51] In the context of an article 667 claim based on the proprietor's land giving off odors, the Louisiana Supreme Court has held that odors only constitute a nuisance if they are “excessive [and] unreasonable in degree, and of such character as to produce actual, physical discomfort and annoyance to a person of ordinary sensibilities.”[52] For example, in Taylor v. Denka Performance Elastomer LLC, another section of this Court suggested that a Plaintiff could properly allege an article 667 claim by pleading that an odor was “noxious” and, as a result, caused annoyance.[53]

         In this case, Plaintiffs allege the Landfill gives off a “noxious odor” that interferes with the enjoyment of their property.[54] “Noxious” is a powerful term that means “harmful to health” or “injurious.”[55] This is a sufficient factual allegation to create a reasonable inference that the odor produced by the Landfill is excessive and unreasonable.

         C. Plaintiffs allege the Landfill's noxious odors caused them harm

         Under article 667, the defendant-proprietor's use of land must “cause” damage to his neighbor's land. For causation to be found, the defendant's actions “need not be the sole cause, but it must be a cause in fact, and to be a cause in fact in legal contemplation, it must have a proximate relation to the harm which occurs.”[56]

         In this case, Plaintiffs allege the Landfill emits noxious odors onto neighboring properties.[57] This is a plain, clear statement that Defendants are causing the foul odors to be present on and to cause damage to Plaintiffs' neighboring property. Defendants present possible alternative sources of the odors, but that is a merits argument and is inappropriate in a motion to dismiss when the allegations in the complaint must be taken as true and when defendant's actions need not be the sole cause of the harm.[58]

         II. Plaintiffs Sufficiently Plead Class Allegations

         Federal Rule of Civil Procedure 23(a) sets forth the following four prerequisites to certifying any class: (1) the class must be “so numerous that joinder of all parties is impracticable, ” (2) there must be “questions of law or fact common to the class, ” (3) “the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class, ” and (4) “the representative parties [must] fairly and adequately protect the interests of the class.”[59] If those prerequisites are satisfied, a court may permit the action to be maintained as a class so long as the action falls within any one or more of the three categories established by Rule 23(b).[60]

         At the pleadings stage, a court has two avenues to eliminate class allegations. Under Rule 23(d)(1)(D), a court may strike class allegations if the pleadings fail to set forth the “minimum facts necessary to establish the existence of a class satisfying Rule 23's mandate.”[61] According to Rule 12(b)(6), if “it is facially apparent from the pleadings that there is no ascertainable class, a district court may dismiss the class allegation on the pleadings.”[62]

         Plaintiffs in this case have set forth facts necessary to allow “the court to draw the reasonable inference”[63] that a class satisfying Rule 23's mandate exists, and striking the allegations under Rule 23(d)(1)(D) is accordingly improper. Plaintiffs allege there are “thousands” of potential class members, which makes joinder impracticable and satisfies the numerosity requirement of Rule 23.[64] Plaintiffs list ten common questions of law and fact among the class representatives and potential class members.[65] Plaintiffs allege the harm they have suffered is similar to the harms of all potential class members, which means the claims and defenses of the representatives are typical of the class and the representatives have a sufficient stake in the outcome of the litigation to be fair and adequate representatives.[66] Similarly, Plaintiffs allege Rule 23(b) will be satisfied based on the predominance of common questions of law or fact, [67] such as those mentioned above that satisfy Rule 23(a).[68]

         Next, dismissal under Rule 12(b)(6) is inappropriate in this case because it is not “facially apparent from the pleadings that there is no ascertainable class.”[69] “It is elementary that the class sought to be represented must be adequately defined and clearly ascertainable.”[70] “The existence of an ascertainable class of persons to be represented by the proposed class representative is an implied prerequisite of Federal Rule of Civil Procedure 23.”[71] The class must be susceptible of a precise definition, and “[t]he definition must make it administratively feasible for the court to determine, based on objective and practical criteria, whether a person is or is not a member of the class.[72] “[T]he definition is inadequate if the merits must be examined to determine class membership.”[73]

         In the “mass tort” context, class actions often are not permissible “because of the likelihood that significant questions, not only of damages but of liability and defenses to liability, would be present, affecting the individuals in different ways.”[74] Although the requirements to obtain class certification in a mass tort case are demanding, [75] motions to dismiss for failure to plead some ascertainable class should not be routinely granted.[76] “If the viability of a class depends on factual matters that must be developed through discovery, the motion [to dismiss] should be denied pending the full-blown certification process.”[77] Plaintiffs are not required in pleadings to prove a class is “currently and readily ascertainable based on objective criteria, ” but “need only demonstrate-at some stage of the proceeding-that the class is adequately defined and clearly ascertainable.”[78] Further, courts are “encouraged” to allow discovery on class certification matters.[79]

         At this early stage in this case, Plaintiffs sufficiently allege the potential for an adequately ascertainable class. Determining class membership will not necessarily require finding individual liability. Once discovery is underway, it is entirely possible, based on the current allegations, that objective, non-individualized criteria (such as distance from the Landfill or results of air quality testing) will define the class.[80]Accordingly, as encouraged by the Fifth Circuit, the Court will permit discovery on Plaintiffs' class allegations. It is premature to dismiss the class allegations at this early stage in the proceedings based on a substantive argument that the class ...

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