Buchanan et al v. Simplot Feeders LLC et al, No. 4:2019cv05209 - Document 138 (E.D. Wash. 2022)
Court Description: ORDER granting Defendant Tyson Fresh Meat, Inc.'s 82 Motion for Partial Summary Judgment; denying as moot Defendant Tyson Fresh Meat, Inc.'s 90 Motion to Exclude Plaintiffs' Expert Dr. Heather R. Jordan; and denying as moot Defendant Tyson Fresh Meat, Inc.'s 92 Motion to Exclude Plaintiffs' Expert Dr. Jeffrey K. Tomberlin. Signed by Judge Thomas O. Rice. (BF, Paralegal)
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Buchanan et al v. Simplot Feeders LLC et al Case 4:19-cv-05209-TOR Doc. 138 ECF No. 138 filed 11/09/22 PageID.3918 Page 1 of 12 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 RANDY BUCHANAN and DONNA BUCHANAN, individuals, 8 Plaintiffs, 9 v. NO. 4:19-CV-5209-TOR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 12 SIMPLOT FEEDERS, LLC, an Idaho limited liability company; and TYSON FRESH MEATS, INC., a Delaware corporation, 13 Defendants. 11 14 BEFORE THE COURT are Defendant Tyson Fresh Meat, Inc.’s (“Tyson”) 15 Motion for Partial Summary Judgment (ECF No. 82), Motion to Exclude 16 Plaintiffs’ Expert Dr. Heather R. Jordan (ECF No. 90), and Motion to Exclude 17 Plaintiffs’ Expert Dr. Jeffrey K. Tomberlin (ECF No. 92). These matters were 18 submitted for consideration without oral argument. The Court has reviewed the 19 record and files herein and is fully informed. For the reasons discussed below, 20 Tyson’s Motion for Partial Summary Judgment (ECF No. 82) is granted, Motion ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 4:19-cv-05209-TOR ECF No. 138 filed 11/09/22 PageID.3919 Page 2 of 12 1 to Exclude Plaintiffs’ Expert Dr. Heather R. Jordan (ECF No. 90) is denied as 2 moot, and Motion to Exclude Plaintiffs’ Expert Dr. Jeffrey K. Tomberlin (ECF 3 No. 92) is denied as moot. 4 5 BACKGROUND This case concerns a concentrated animal farm’s alleged effect on 6 neighboring land. Plaintiffs’ Complaint raises the following causes of action: (1) 7 common law and per se negligence, (2) common law and per se nuisance, (3) and 8 trespass. ECF No. 1 at 14–16, ¶¶ 56–66. On September 19, 2022, Tyson filed the 9 present Motion for Partial Summary Judgment. ECF No. 82. Plaintiffs’ response 10 was due on October 10, 2022. LCivR 7(c)(2)(B). Plaintiffs did not file a response, 11 timely or otherwise. As a result, the Court considers the following facts 12 undisputed. Fed. R. Civ. P. 56(e)(2). 13 Since 1961, the Buchanans have owned and resided on over 300 acres of 14 land in Washington, where they also operate a commercial farm. ECF No. 83 at 2, 15 ¶ 1. The Buchanans’ utilize tractors, trucks, helicopters, drones, propane cannons, 16 shotguns, wind machines, and combines in connection with their commercial farm, 17 all of which create noise. Id. at 10, ¶¶ 35–36. The Buchanans’ property also hosts 18 decaying organic material, where flies can breed. Id., ¶ 37. The Buchanans’ 19 property is bordered by U.S. Route 12 to the west and by a Union Pacific railroad 20 to the east, both of which produce noise. Id. at 4, 11 ¶¶ 11–12, 41–42. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 4:19-cv-05209-TOR ECF No. 138 filed 11/09/22 PageID.3920 Page 3 of 12 1 Tyson owns and operates a beef processing and packing facility located one 2 mile away from the Buchanans’ residence, which has been in operation for over 50 3 years. Id. at 2–3, ¶¶ 2, 6. Tyson’s facility is on land zoned for Industrial 4 Agricultural Mixed and is within the Attalia Industrial Urban Growth Area 5 bordering the Buchanans’ property to the south and east. Id. at 3–4, ¶¶ 7, 8, 10. 6 From August 14, 2016 to present, Tyson obtained and complied with all 7 permits relating to noise and flies for its operations. Id. at 5, ¶¶ 15–16. In this 8 time, there have been no enforcement actions against Tyson relating to noise or 9 flies nor any regulatory findings related to excessive, unreasonable, or 10 objectionable noise or flies. Id., ¶ 17. 11 Tyson has implemented industry best practices to minimize any noise 12 arounds its operations. Id. at 6, ¶ 18. First, to minimize noise emissions, Tyson’s 13 facility houses noise-generating equipment indoors. Id., ¶ 19. Second, Tyson 14 maintains a regular maintenance schedule for all operating equipment to confirm 15 facility equipment was continuously functioning properly and not generating 16 excess noise. Id. Third, Tyson regularly monitors noise levels in compliance with 17 OSHA and other applicable noise-related regulatory requirements. Id. Fourth, 18 while all noise has been kept to a reasonable minimum, any noise is within Walla 19 Walla County’s applicable sound level limits. Id., ¶¶ 20–21. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 4:19-cv-05209-TOR 1 ECF No. 138 filed 11/09/22 PageID.3921 Page 4 of 12 Tyson has also implemented industry best practices to minimize flies around 2 its operations. Id. at 6–7, ¶¶ 22, 26. First, as part of its integrated pest 3 management program, Tyson contracts with a company who services about 68 fly 4 traps per week at the facility. Id., ¶ 23. Second, Tyson ensures animal holding 5 pens are cleaned each day and any waste material is removed at least three times a 6 week. Id. at 7, ¶ 24. Third, Tyson complies with USDA requirements and 7 inspections relating to pests, including flies. Id., ¶ 25. 8 Tyson’s beef processing and packing facility supplies millions of pounds of 9 meat each week to people throughout the West Coast, Alaska, and Canada. Id. at 10 8, ¶ 27. Tyson is the second largest employer in Walla Walla County, employing 11 between 1,350 and 1,515 people with an average annual payroll exceeding $50 12 million and paying $490,000 in annual property taxes and millions of additional 13 dollars in sales taxes and utility payments each year. Id., ¶¶ 28–29. Other 14 businesses in Walla Walla County depend on Tyson’s facility. Id., ¶ 30. In the last 15 three years, Tyson has donated over $800,000 pounds of meat to food banks 16 throughout the State of Washington, provided over $100,000 in corporate grants, 17 sponsored several scholarships for students, and supported and participated in 18 numerous community services events. Id., ¶ 31. 19 20 As to the noise, there are other industrial and commercial operations in the area, such as other commercial farms, a pulp and paper mill and compost facility, a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 4:19-cv-05209-TOR ECF No. 138 filed 11/09/22 PageID.3922 Page 5 of 12 1 truck washing operation, a train services operation, a wine distribution facility, a 2 cold storage facility, and a convenience store and gas station. Id. at 4–5, ¶ 14. 3 These commercial farms and industrial businesses generate noise and/or flies. Id. 4 at 11, ¶ 42–44. The noise from Tyson’s facility is difficult to distinguish from the 5 noise emitted from a third-party cold storage facility. Id. at 12, ¶ 46. 6 As to the flies, the Buchanans admitted they have no evidence any fly 7 originating on Tyson’s property entered their property. Id. at 12, ¶ 47. The 8 Buchanans’ entomologist stated material on their property could serve as “mass 9 production sites” for flies, that some level of flies is expected, and that there is “no 10 evidence” that Tyson’s facility is “the source of the flies.” Id. at 10, 12, ¶¶ 38, 40, 11 49. Tyson’s entomologist expert reported that Tyson’s facility is not a source of 12 any significant fly population on the Buchanans’ property. Id. at 12, ¶¶ 48. 13 DISCUSSION 14 I. 15 The Court may grant summary judgment in favor of a moving party who Summary Judgment Standard 16 demonstrates “that there is no genuine dispute as to any material fact and that the 17 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling 18 on a motion for summary judgment, the court must only consider admissible 19 evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The 20 party moving for summary judgment bears the initial burden of showing the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 4:19-cv-05209-TOR ECF No. 138 filed 11/09/22 PageID.3923 Page 6 of 12 1 absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 2 317, 323 (1986). The burden then shifts to the non-moving party to identify 3 specific facts showing there is a genuine issue of material fact. See Anderson v. 4 Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla 5 of evidence in support of the plaintiff’s position will be insufficient; there must be 6 evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. 7 For purposes of summary judgment, a fact is “material” if it might affect the 8 outcome of the suit under the governing law. Id. at 248. Further, a dispute is 9 “genuine” only where the evidence is such that a reasonable jury could find in 10 favor of the non-moving party. Id. The Court views the facts, and all rational 11 inferences therefrom, in the light most favorable to the non-moving party. Scott v. 12 Harris, 550 U.S. 372, 378 (2007). Summary judgment will thus be granted 13 “against a party who fails to make a showing sufficient to establish the existence of 14 an element essential to that party’s case, and on which that party will bear the 15 burden of proof at trial.” Celotex, 477 U.S. at 322. 16 II. 17 Tyson moves for summary on Plaintiffs’ negligence claims. ECF No. 82 at 18 11. The Court previously dismissed Plaintiffs’ negligence per se claim. ECF No. 19 21 at 5. Therefore, the Court will address the remaining negligence claim. Negligence Claims 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 4:19-cv-05209-TOR 1 ECF No. 138 filed 11/09/22 PageID.3924 Page 7 of 12 To establish a negligence claim, a plaintiff must demonstrate a duty, breach 2 of that duty, causation, and damages. Hurley v. Port Blakely Tree Farms L.P., 182 3 Wash. App. 753, 773 (2014). While duty is a question of law, breach and 4 causation are generally questions of fact. Walter Farm. Grain Growers, Inc. v. 5 Foremost Pump & Well Servs., LLC, 21 Wash. App. 2d 451, 459 (2022). 6 “Duty is the duty to exercise ordinary care, or, alternatively phrased, the 7 duty to exercise such care as a reasonable person would exercise under the same or 8 similar circumstances.” Mathis v. Ammons, 84 Wash. App. 411, 416 (1996). 9 “Breach is the failure to exercise ordinary care, or, alternatively phrased, the failure 10 to exercise such care as a reasonable person would exercise under the same or 11 similar circumstances.” Id. 12 Plaintiffs failed to identify any evidence establishing duty or the applicable 13 standard of care, let alone breach, causation, or damages. ECF Nos. 1, 82 at 12. 14 The Court previously recognized that while the Complaint did not provide “a 15 detailed delineation of the statutes or regulations at issue”, Plaintiff sufficiently 16 pled the standard of care may be set by the Department of Ecology, WAC 173- 17 400-040 which sets maximum emissions standards. ECF No. 21 at 6 (citing ECF 18 No. 1 at 6, ¶ 23). However, there are no facts here regarding Tyson’s emissions 19 before the Court. Moreover, Plaintiffs have identified no law or industry standards 20 that sets a standard of care regarding excessive flies or noise. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 4:19-cv-05209-TOR 1 ECF No. 138 filed 11/09/22 PageID.3925 Page 8 of 12 To the contrary, Tyson asserts it has obtained and complied with all permits 2 relating to the production of noise and flies. Id. at 5, ¶¶ 15–16. Tyson 3 implemented industry best practices to minimize any noise arounds its operations. 4 Id. at 6, ¶ 18. Tyson’s noise-generating equipment is indoors, Tyson maintains a 5 regular maintenance schedule ensuring there is no excess noise, Tyson regularly 6 monitors noise levels in compliance with OSHA and other regulatory 7 requirements, and any noise is within Walla Walla County’s applicable sound 8 limits. Id., ¶¶ 19–21. Tyson also implemented industry best practices to minimize 9 flies around its operations. Id. at 6–7, ¶¶ 22, 26. Tyson has a pest management 10 program that services approximately 68 fly traps per week, Tyson cleans animal 11 holding pens each week and removes waste material at least three times a week, 12 and Tyson complies with USDA requirements and inspection relating to pests, 13 including flies. Id. at 6, ¶¶ 23–25. 14 There are also no facts establishing causation for either noise or flies. The 15 noise from Tyson’s facility, if any, is difficult to distinguish from the noise emitted 16 from a third-party cold storage facility. Id. at 12, ¶ 46. The Buchanans also 17 admitted they have no evidence any fly originating on Tyson’s property entered 18 their property. Id. at 12, ¶ 47. Indeed, the Buchanans’ own entomologist stated 19 that there is “no evidence” that Tyson’s facility is “the source of the flies.” Id., ¶ 20 49. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 4:19-cv-05209-TOR 1 ECF No. 138 filed 11/09/22 PageID.3926 Page 9 of 12 There is no evidence Tyson breached any standard of care and no evidence 2 that Tyson’s conduct caused damage under these undisputed facts. Therefore, 3 summary judgment on Plaintiffs’ negligence claims asserted against Tyson is 4 appropriate. 5 III. 6 Tyson moves for summary judgment on Plaintiffs’ nuisance claims. ECF 7 Nuisance Claims No. 82 at 18. 8 In Washington, nuisance includes “whatever is injurious to health or 9 indecent or offensive to the senses, or an obstruction to the free use of property, so 10 as to essentially interfere with the comfortable enjoyment of the life and property.” 11 RCW 7.48.010. More specifically, nuisance is “unlawfully doing an act, or 12 omitting to perform a duty, which act or omission either annoys, injures, or 13 endangers the comfort, repose health or safety of others, offends decency, or 14 unlawfully interferes with, obstructs or tends to obstruct, … or in any way renders 15 other persons insecure in life, or in the use of property.” RCW 7.48.120. 16 Interference with a person’s property occurs where an act or omission “causes a 17 reasonable fear of using property.” Lakey v. Puget Sound Energy, Inc., 176 Wash. 18 2d 909, 923 (2013). In turn, reasonableness is considered in light of the social 19 utility of the activity, including “the character of the neighborhood where the 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 4:19-cv-05209-TOR ECF No. 138 filed 11/09/22 PageID.3927 Page 10 of 12 1 activity occurs and the degree of community dependence on the particular 2 activity.” Id. at 923–24 (internal citations and quotation marks omitted). 3 Additionally, a plaintiff can establish a nuisance per se claim by showing a 4 violation of law or by showing “an act, thing, omission, or use of property which 5 of itself is a nuisance, and hence is not permissible or excusable under any 6 circumstance.” Moore v. Steve’s Outboard Serv., 182 Wash. 2d 151, 155 (2014) 7 (internal citations omitted). 8 Plaintiffs failed to identify any violation of law as the basis for the nuisance 9 claims. Moreover, there are no facts to suggest Tyson’s operations unreasonably 10 interfere with Plaintiffs’ use and enjoyment of their property or that any incidental 11 noise or flies are not permissible under any circumstance. As stated supra, it is 12 undisputed Tyson follows all regulations concerning noise and pests. Even if 13 Plaintiffs are affected by noise or flies, Tyson asserts the conditions already exist 14 due to Plaintiffs’ own commercial activities and/or surrounding traffic and 15 commercial enterprises. See ECF No. 1 at 10–12, ¶¶ 35–37, 42–45. In any event, 16 Tyson asserts that any interference is reasonable where Tyson’s facility is an 17 integral part of the community and neighborhood which is zoned for Tyson’s 18 operations. See id. at 8, ¶¶ 27–31. 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 4:19-cv-05209-TOR 1 ECF No. 138 filed 11/09/22 PageID.3928 Page 11 of 12 Tyson’s activities do not unreasonably interfere with Plaintiffs’ use and 2 enjoyment of their property under these undisputed facts. Therefore, summary 3 judgment on Plaintiffs’ nuisance claims asserted against Tyson is appropriate. 4 IV. 5 Tyson moves for summary judgment on Plaintiffs’ trespass claim. ECF No. 6 7 Trespass 82 at 23. In Washington, to establish a claim for trespass in this context, the “plaintiff 8 must show 1) an invasion affecting an interest in the exclusive possession of his 9 property; 2) an intentional doing of the act which results in the invasion; 3) 10 reasonable foreseeability that the act done could result in an invasion of plaintiff's 11 possessory interest; and 4) substantial damages to the res.” Bradley v. Am. 12 Smelting & Ref. Co., 104 Wash. 2d 677, 690-91 (1985) (internal citation omitted). 13 Bradley clarified that transitory invasions are “are properly denominated as 14 nuisances.” Id. at 691. 15 Plaintiffs failed to assert any facts demonstrating an invasion of noise or 16 flies attributable to Tyson nor any facts demonstrating substantial damage to the 17 property. In any event, the nature of the claimed invasions is properly 18 characterized as nuisance rather than trespass. Wallace v. Lewis Cnty., 134 Wash. 19 App. 1, 16 (2006), as corrected (Aug. 15, 2006) (rodents); Mock v. Potlatch Corp., 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 4:19-cv-05209-TOR ECF No. 138 filed 11/09/22 PageID.3929 Page 12 of 12 1 786 F. Supp. 1545, 1550 (D. Idaho 1992) (noise). Therefore, summary judgment 2 on Plaintiffs’ trespass claims asserted against Tyson is appropriate. 3 ACCORDINGLY, IT IS SO ORDERED. 4 5 6 7 8 9 10 11 12 13 14 1. Defendant Tyson Fresh Meat, Inc.’s Motion for Partial Summary Judgment (ECF No. 82) is GRANTED. 2. All claims against Defendant Tyson Fresh Meat, Inc. are DISMISSED with prejudice. 3. Defendant Tyson Fresh Meat, Inc.’s Motion to Exclude Plaintiffs’ Expert Dr. Heather R. Jordan (ECF No. 90) is DENIED as moot. 4. Defendant Tyson Fresh Meat, Inc.’s Motion to Exclude Plaintiffs’ Expert Dr. Jeffrey K. Tomberlin (ECF No. 92) is DENIED as moot. The District Court Executive is directed to enter this Order and furnish copies to counsel. DATED November 9, 2022. 15 16 THOMAS O. RICE United States District Judge 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12
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