Ictech-Bendeck v. Progressive Waste Solutions of LA, Inc. et al, No. 2:2018cv07889 - Document 66 (E.D. La. 2019)
Court Description: ORDER AND REASONS denying 52 Motion to Dismiss for Failure to State a Claim; Motion to Strike Class Allegations. Signed by Judge Susie Morgan on 8/29/2019. (Reference: All Cases)(sbs)
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Ictech-Bendeck v. Progressive Waste Solutions of LA, Inc. et al Doc. 66 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A ELIAS J ORGE “GEORGE” ICTECH -BEN D ECK, Plain tiff CIVIL ACTION VERSU S N O. 18 -78 8 9 c/ w 18 -8 0 71, 18 -8 2 18 , 18 -9 3 12 PROGRESSIVE W ASTE SOLU TION S OF LA, IN C., ET AL., D e fe n d an ts SECTION : “E” ( 5) Ap p lie s t o : All Ca s e s ORD ER AN D REAS ON S Before the Court is a Motion to Dism iss filed by Defen dants Louisiana Region al Landfill Com pany, Waste Connections US, Inc., Waste Connections Bayou, Inc., J efferson Parish, and Aptim Corp. 1 Plaintiffs Elias J orge “George” Ictech-Bendeck, Savannah Thom pson, Nicole M. Landry-Bourdreaux, Larry Bernard, Sr., and Mona Bernard, individually, and on behalf of sim ilarly situated individuals, oppose the m otion. 2 Defendants filed a reply. 3 For the following reasons, the m otion is D EN IED . BACKGROU N D This case concerns the operation of the J efferson Parish Landfill (“the Landfill”) in Waggam an, Louisiana. According to Plaintiffs, around August 1, 20 17, the Landfill began em itting noxious odors, which Plaintiffs allege consist prim arily of m ethane an d hydrogen sulfide gases, into surrounding neighborhoods. 4 Over the next year, Plaintiffs, who are 1 R. Doc. 52. R. Doc. 55. 3 R. Doc. 58. 4 R. Doc. 48 ¶ 6. 2 1 Dockets.Justia.com J efferson Parish residents and dom iciliaries, 5 filed state-court class action suits again st Defendants. Defendants are J efferson Parish, which owns and contracts with others to operate the Landfill; Aptim Corporation, which m anages the gas an d leachate collection system s of the Landfill; and three entities that operate the Landfill: Louisiana Regional Landfill Com pany (form erly 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 rem oved these suits to federal court, 7 and the suits were consolidated. 8 After consolidation, Plaintiffs filed the Master Com plaint now subject to this Motion to Dism iss. 9 In their com plaint, Plaintiffs allege odors from the Landfill have unreasonably interfered with their use and en joym ent of im m ovable property in violation of Louisiana law. 10 Defendants filed the m otion to dism iss that is now before the Court under Federal Rule of Civil Procedure 12(b)(6). LEGAL STAN D ARD Pursuant to Rule 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay 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 m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”12 “A claim has 5 Id. ¶ 1. See R. Doc. 45. 7 See id. 8 R. Doc. 47. 9 R. Doc. 48. 10 Id. ¶¶ 27– 28. 11 Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 6 2 facial plausibility when the plaintiff pleads factual content that allows the court to draw the reason able inferen ce that the defen dant is liable for the m isconduct alleged.”13 The court, however, does not accept as true legal conclusions or m ere conclusory statem ents, and “conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss.”14 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere conclusory statem ents” or “naked assertion[s] devoid of further factual enhancem ent” are not sufficient. 15 In sum m ary, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.”16 “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not show[n]’—that the pleader is entitled to relief.”17 “Dism issal is appropriate when the com plaint ‘on its face show[s] a bar to relief.’”18 LAW AN D AN ALYSIS Defendants argue the Court should dism iss Plaintiffs’ case because Plaintiffs fail to state claim s for nuisance, 19 negligen ce, 20 and prem ises 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 prim ary jurisdiction pending the resolution of certain adm inistrative enforcem ent proceedin gs. 23 13 Id. S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 78 6 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 15 Iqbal, 556 U.S. at 663, 678 (citations om itted). 16 Tw om bly , 550 U.S. at 555. 17 Id. (quotin g F ED . R. CIV. P. 8(a)(2)). 18 Cutrer v. McMillan, 30 8 F. App’x 819, 8 20 (5th Cir. 20 0 9) (per curiam ) (quotation s om itted). 19 R. Doc. 52-1 at 9. 20 Id. at 14. 21 Id. at 17. 22 Id. at 19. 23 Id. at 29. 14 3 Although Plaintiffs’ com plaint m entions causes of action for negligence, gross negligence, and potential prem ises liability, at oral argum ent, 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’ com plaint 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 m otion to dism iss. I. Pla in tiffs ’ Co m p lain t State s a Claim fo r N u is an ce Under Louisiana law, nuisance claim s are governed by Louisiana Civil Code articles 667– 669. 26 These articles im pose on property owners certain legal servitudes known as “obligations of vicinage.”27 The Louisiana Suprem e Court has observed articles 667– 669 “em body a balancing of rights and obligations associated with the ownership of im m ovables. As a gen eral rule, the landowner is free to exercise his rights of ownership in any m anner he sees fit. . . . However, his extensive rights do not allow him to do “real dam age” to his n eighbor. 28 Louisiana Civil Code article 667 defines nuisance: Although a proprietor m ay do with his estate whatever he pleases, still he cannot m ake any work on it, which m ay deprive his neighbor of the liberty of enjoying his own, or which m ay be the cause of any dam age to him . However, if the work he m akes on his estate deprives his neighbor of enjoym ent or causes dam age to him , he is answerable for dam ages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause dam age, that the dam age could have 24 R. Doc. 65 at 34:14– 18 , 35:9– 11; see also Yokum v . 615 Bourbon St. L.L.C., 0 7-178 5, p. 19 (La. 2/ 26/ 0 8), 977 So. 2d 859, 872– 73 (“[T]his Court has previously found that the corresponding rights and obligations of neighboring proprietors, arisin g from that relationship between proprietors, are principally governed by Louisiana Civil Code articles 667, 668, and 669.”). 25 Tw om bly , 550 U.S. at 555. 26 Rodrigue v. Copeland, 475 So. 2d 10 71, 10 77 (La. 1985). 27 Id. 28 Id. 4 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 m ust prove a defen dant is: (1) a proprietor who (2) negligently (3) conducts ‘work’ on his property (4) that causes dam age to his n eighbor. 29 In this case, Plaintiffs allege Defendants violate article 667 by creatin g “a nuisance through the em ission of noxious odors into the air in an d around the J P Lan dfill, which unreasonably interferes with Plaintiffs’ use and en joym ent of their property.”30 All parties agree Plaintiffs have alleged Defendants are “proprietors” who “conduct work on their property,” the Landfill. 31 Sim ilarly, Defendants do not put the negligen ce elem ent 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 elem ent is whether Plaintiffs alleged Defendants’ work on the Landfill “caused dam age to his neighbor.” In particular, Defendants argue Plaintiffs fail to plead this elem ent, and as a result fail state a claim for n uisance 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 argum ents fail. Plaintiffs’ com plaint sufficiently alleges they have an interest in property neighboring the Landfill and suffer unreasonable 29 Bd. of Com m ’rs of Se. La. Flood Prot. Auth.-E. v. Ten n. Gas Pipeline Co., LLC, 8 8 F. Supp. 3d 615, 643 (E.D. La. 20 15). 30 R. Doc 48 ¶ 27. 31 R. Doc. 52-1 at 1. 32 R. Doc. 48 ¶¶ 8– 10 , 12– 13. 33 Id. at 9, 18 . 5 interference with the use of that property because of the noxious odors em itted from the Landfill. A. Plain tiffs ’ co m p lain t alle ge s an in te re s t in im m o vable p ro p e rty n e igh bo rin g th e Lan d fill Liability under article 667 arises “when activity by one party holding a right to im m ovable property has caused dam ages to a party holding a right to neighboring property .”34 1. Plain tiffs p le ad e d a s u fficie n t p ro p e rty in te re s t Under article 667, a plaintiff’s interest in neighboring property can be an ownership interest, leasehold interest, third-party interest, or m ore generally the interest of “a person whose right derives from the owner.”35 In this case, Plaintiffs allege they, along with prospective class m em bers, are “resident[s] of and dom iciled in” J efferson Parish. 36 Moreover, the Com plaint states “Defendants created a nuisance . . . which unreasonably interferes with Plaintiffs’ use and enjoym ent of their property .”37 Taken together, these statem ents are sufficient “factual content t[o] allow[] the court to draw the reasonable inference”38 that Plaintiffs “have som e interest in an im m ovable.”39 34 Inabnet v. Exxon Corp., 93-0 681 (La. 9/ 6/ 94), 642 So. 2d 1243, 1251– 52 (em phasis added). Yokum v. 615 Bourbon St., L.L.C., 20 0 7-1785 (La. 2/ 26/ 0 8), 977 So. 2d 859, 874. 36 R. Doc. 48 ¶ 1. 37 Id. ¶ 27. 38 S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 786 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 39 Bd. of Com m ’rs of Se. La. Flood Prot. Auth.-E. v. Ten n. Gas Pipeline Co., L.L.C., 850 F.3d 714, 731 (5th Cir. 20 17). 35 6 2. Plain tiffs alle ge th e ir p ro p e rty n e igh bo rs D e fe n d an ts ’ p ro p e rty “In its ordinary m eaning, ‘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 m ust be “som e propinquity” between the properties of the n eighbor and the proprietor. 42 A m ere “causal nexus” between the use of a property and harm to another is insufficient to m ake those properties “neighbors.”43 What qualifies as “som e propinquity,” however, is fact specific and m ay change based on the harm alleged (for exam ple, the radius of neighbors surrounding a loud m anufacturing plant m ay be m uch sm aller 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 m ay be dam aged irrespective of the distance his property m ay be from that of the proprietor whose work caused the dam age.”45 Federal courts have acknowledged this precedent. 46 40 TS & C Invs., LLC v. Beusa Energy , Inc., 637 F. Supp. 2d 370 , 390 (W.D. La. 20 0 9). re Katrina Canal Breaches Consol. Litig., 647 F. Supp. 2d 644, 734 (E.D. La. 20 0 9) (noting the “paucity of guidance in the law as to the proxim ity required so as to be a “n eighbor” for purposes of art. 667”). 42 Bd. of Com m ’rs, 850 F.3d at 731 (“[A] com plaint nonetheless m ust establish som e degree of propin quity, so as to substantiate the allegation that activity on one property has caused dam age on another. [It] is thus incorrect to interpret the relevant law to require nothin g m ore than a “causal nexus” between the offending property and the dam age done”); TS & C Invs., 637 F. Supp. 2d at 390 (dism issin g a claim when the plaintiffs sought to represent a class of “all busin esses” adversely affected by a well blowout because that contained no geographical lim itation ). 43 Bd. of Com m ’rs, 850 F.3d at 731 44 Id. (“[T]here is no rule of law com pelling ‘neighbor’ to be interpreted as requiring a certain physical adjacency or proxim ity.” (em phasis added) (quotin g Roberts v. Cardinal Servs., Inc., 266 F.3d 368 , 385 (5th Cir. 20 0 1))). Courts apply different standards of “nearness” based on the facts of the case at hand. See In re Katrina, 647 F. Supp. 2d at 734 (holding plaintiffs living three m iles away from the property allegedly causing the nuisance were not neighbors because the distance was “too attenuated” for the type of harm alleged—flood dam age). 45 Gulf Ins. Co. v. Em p’rs Liab. Assur. Corp., 170 So. 2d 125, 129 (La. Ct. App. 1964); see also Craig v. Montelepre Realty Co., 211 So. 2d 627, 631 (La. 1968) (“A plaintiff has to show by a preponderance of the evidence that there exists a causal connection between the acts of a defendant property owner and the dam ages suffered by him .”). 46 Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 386 (5th Cir. 20 0 1); Brister v . Gulf Cent. Pipeline Co., 684 F. Supp. 1373, 1385 (W.D. La. 198 8). 41 In 7 In this case, Plaintiffs allege they, and any prospective class m em bers, have a property interest within J efferson Parish, specifically including, but not lim ited to, the neighborhoods of Waggam an, River Ridge, and Harahan. 47 Plaintiffs allege they are harm ed by the noxious odors em anating from the Landfill. 48 Whether article 667 requires “som e propinquity” between the neighbor and proprietor or m erely a causal connection between the acts of a defendant property owner and the dam ages 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 sam e parish as the Landfill and is adversely affected by the odors the Landfill em its. Accordingly, Plaintiffs have alleged they are the Landfill’s neighbors under Louisiana Civil Code article 667. B. Plain tiffs ’ co m p lain t alle ge s th e Lan d fill’s o d o rs are e xce s s ive an d u n re as o n a ble To be liable under article 667, a proprietor’s use of land m ust “deprive[] his neighbor of enjoym ent or cause[] dam age to him .”49 Article 668 lim its this recovery by providing a proprietor m ay perm issibly cause “som e 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 Suprem e 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 discom fort and annoyan ce to a person of ordinary sensibilities.”52 For exam ple, in Tay lor v. Denka Perform ance Elastom er LLC, another section of this Court suggested that a Plaintiff could properly 47 R. Doc. 48 ¶ 27. Id. ¶ 17. 49 LA. CIV. CODE art. 667. 50 LA. CIV. CODE art. 668 . 51 Inabnet v. Exxon Corp., 93-0 681 (La. 9/ 6/ 94), 642 So. 2d 1243, 1251– 52. 52 Mey er v. Kem per Ice Co., 180 La. 10 37, 10 44, 158 So. 378, 380 . 48 8 allege an article 667 claim by pleading that an odor was “noxious” and, as a result, caused annoyan ce. 53 In this case, Plaintiffs allege the Landfill gives off a “noxious odor” that interferes with the enjoym ent of their property. 54 “Noxious” is a powerful term that m eans “harm ful 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 an d unreasonable. C. Plain tiffs alle ge th e Lan d fill’s n o xio u s o d o rs cau s e d th e m h arm Under article 667, the defendant-proprietor’s use of land m ust “cause” dam age 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 contem plation, it m ust have a proxim ate relation to the harm which occurs.”56 In this case, Plaintiffs allege the Landfill em its noxious odors onto neighboring properties. 57 This is a plain, clear statem ent that Defendants are causing the foul odors to be present on and to cause dam age to Plaintiffs’ neighboring property. Defendants present possible alternative sources of the odors, but that is a m erits argum ent and is inappropriate in a m otion to dism iss when the allegations in the com plaint m ust be taken as true and when defendant’s actions n eed not be the sole cause of the harm . 58 53 Tay lor v. Denka Perform ance Elastom er LLC, 332 F. Supp. 3d 10 39, 10 54 (E.D. La. 20 18 ) (holdin g that the plaintiffs only pled insufficient conclusions that certain em ission s were a nuisance but suggesting the pleadin g could be rem edied by the plaintiffs claim ing those em issions gave off a “noxious odor” that caused discom fort and annoyance). 54 R. Doc. 48 ¶ 27. 55 N oxious, BLACK’S LAW D ICTIONARY (10 th ed., 20 14). 56 Lom bard v. Sew erage & W ater Bd. of N ew Orleans, 284 So. 2d 90 5, 913 (La. 1973). 57 R. Doc. 48 ¶ 14. 58 Gonzalez v. Kay , 577 F.3d 60 0 , 60 3 (5th Cir. 20 0 9) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9)). 9 II. Pla in tiffs Su fficie n tly Ple ad Clas s Alle gatio n s Federal Rule of Civil Procedure 23(a) sets forth the following four prerequisites to certifying any class: (1) the class m ust be “so n um erous that joinder of all parties is im practicable,” (2) there m ust be “questions of law or fact com m on to the class,” (3) “the claim s or defenses of the representative parties [m ust be] typical of the claim s or defenses of the class,” and (4) “the representative parties [m ust] fairly and adequately protect the interests of the class.”59 If those prerequisites are satisfied, a court m ay perm it the action to be m aintained as a class so long as the action falls within any one or m ore of the three categories established by Rule 23(b). 60 At the pleadings stage, a court has two avenues to elim inate class allegations. Under Rule 23(d)(1)(D), a court m ay strike class allegations if the pleadings fail to set forth the “m inim um facts necessary to establish the existence of a class satisfying Rule 23’s m an date.”61 According to Rule 12(b)(6), if “it is facially apparent from the pleadings that there is no ascertainable class, a district court m ay dism iss 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 m andate exists, and striking the allegations under Rule 23(d)(1)(D) is accordingly im proper. Plaintiffs allege there are “thousands” of potential class m em bers, which m akes joinder im practicable and satisfies 59 F ED. R. CIV. P. 23(a). F ED. R. CIV. P. 23(b). 61 Aguilar v. Allstate Fire & Cas. Ins. Co., No. 0 6-cv-4660 , 20 0 7 WL 73480 9, at *2 (E.D. La. Mar. 6, 20 0 7) (construing Rule 23(d)(4), which is now codified at Rule 23(d)(1)(D)). 62 John v. N at’l Sec. Fire & Cas. Co., 50 1 F.3d 443, 445 (5th Cir. 20 0 7). 63 S. Christian Leadership Conference v . Suprem e Court of the State of La., 252 F.3d 781, 786 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 60 10 the num erosity requirem ent of Rule 23. 64 Plaintiffs list ten com m on questions of law and fact am ong the class representatives and potential class m em bers. 65 Plaintiffs allege the harm they have suffered is sim ilar to the harm s of all potential class m em bers, which m eans the claim s and defenses of the representatives are typical of the class an d the representatives have a sufficient stake in the outcom e of the litigation to be fair and adequate representatives. 66 Sim ilarly, Plaintiffs allege Rule 23(b) will be satisfied based on the predom inance of com m on questions of law or fact, 67 such as those m entioned above that satisfy Rule 23(a). 68 Next, dism issal 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 elem entary that the class sought to be represented m ust be adequately defined and clearly ascertainable.”70 “The existence of an ascertain able class of persons to be represented by the proposed class representative is an im plied prerequisite of Federal Rule of Civil Procedure 23.”71 The class m ust be susceptible of a precise definition, and “[t]he definition m ust m ake it adm inistratively feasible for the court to determ ine, based on objective an d practical criteria, whether a person is or is not a m em ber of the class. 72 “[T]he definition is inadequate if the m erits m ust be exam ined to determ ine class m em bership.”73 64 R. Doc. 48 ¶ 18 , 25. Id. ¶ 19. 66 Id. ¶ 22. 67 Id. ¶ 25. 68 Id. ¶ 19. 69 John v. N at’l Sec. Fire & Cas. Co., 50 1 F.3d 443, 445 (5th Cir. 20 0 7). 70 DeBrem aecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970 ). 71 John, 50 1 F.3d at 445. 72 Sadler v. Int’l Paper Co., No. 0 9-CV-1254, 20 11 WL 350 2467, at *2 (W.D. La. J uly 13, 20 11), report and recom m endation adopted, No. CIV.A. 0 9-1254, 20 11 WL 3510 891 (W.D. La. Aug. 10 , 20 11) (citing Moore’s Federal Practice, § 23.21[1]-[3][c]). 73 Id. 65 11 In the “m ass tort” context, class actions often are not perm issible “because of the likelihood that significant questions, not only of dam ages but of liability and defenses to liability, would be present, affecting the individuals in different ways.”74 Although the requirem ents to obtain class certification in a m ass tort case are dem anding, 75 m otions to dism iss for failure to plead som e ascertainable class should not be routinely granted. 76 “If the viability of a class depends on factual m atters that m ust be developed through discovery, the m otion [to dism iss] should be denied pen ding the full-blown certification process.”77 Plaintiffs are not required in pleadin gs to prove a class is “currently and readily ascertainable based on objective criteria,” but “need only dem onstrate—at som e stage of the proceeding—that the class is adequately defined and clearly ascertainable.”78 Further, courts are “encouraged” to allow discovery on class certification m atters. 79 At this early stage in this case, Plaintiffs sufficiently allege the potential for an adequately ascertain able class. Determ ining class m em bership 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 perm it discovery on 74 Madison v. Chalm ette Ref., L.L.C., 637 F.3d 551, 556 (5th Cir. 20 11) (citing the advisory com m ittee note to F ED. R. CIV. P. 23(b)(3)). 75 See id. 76 Sadler, 20 11 WL 350 2467, at *2 (citing 1 McLaughlin on Class Actions, § 3:4 (6th ed.)). 77 Id. (perm ittin g a class action based on a m ass tort to survive a m otion to dism iss so that plaintiffs could m ore concretely define the class at the certification stage). 78 Seeligson v. Devon En ergy Prod. Co., L.P., 753 F. App’x 225, 230 (5th Cir. 20 18) (internal citations om itted). 79 Gene & Gene, L.L.C. v. BioPay , L.L.C., 624 F.3d 698, 70 3 (5th Cir. 20 10 ) (citing Fed R. Civ. P. 23(c) 1(A) (“At an early practicable tim e after a person sues or is sued as a class representative, the court m ust determ in e by order whether to certify the action.”), an d Fed R. Civ. P. 23 advisory com m ittee’s notes (“[I]t is appropriate to conduct controlled discovery into the ‘m erits,’ lim ited to those aspects relevant to m aking the certification decision on an inform ed basis.”)). 80 See, e.g., Pow ell v. Tosh, 280 F.R.D. 296, 30 6 (W.D. Ky. 20 12) (establishing a class based on an expert report showing a barn as the source of a noxious odor for individuals surroundin g 1.25 m iles of the barn). 12 Plaintiffs’ class allegations. It is prem ature to dism iss the class allegations at this early stage in the proceedings based on a substantive argum ent that the class cannot be objectively defined. Plaintiffs have alleged all prerequisites for establishing a class an d have proposed a class that is potentially ascertainable by purely objective standards. III. Th e Co u rt W ill N o t Stay Plain tiffs ’ Cas e U n d e r th e D o ctrin e o f Prim a ry J u ris d ictio n The doctrine of prim ary jurisdiction gives courts discretion to stay an action “pending referral to [an] adm inistrative agency of issues, which under a regulatory schem e, are within the agen cy’s special com petence.”81 In general, this doctrine applies if: “(1) the court has original jurisdiction over the claim before it; (2) the adjudication of that claim requires the resolution of predicate issues or the m aking of prelim inary findings; and (3) the legislature has established a regulatory schem e whereby it has com m itted the resolution of those issues or the m aking of those findings to an adm in istrative body.”82 With that said, the Fifth Circuit has adm onished “courts should be reluctant to invoke the doctrine of prim ary jurisdiction, which often, but not always, results in added expen se an d delay to the litigants.”83 Federal courts have a “virtually unflagging obligation” to exercise their jurisdiction. 84 And “courts m ust always balance the ben efits of seeking the agency’s aid with the need to resolve disputes fairly yet as expeditiously as possible.”85 In light of that balance, there are several particular situations in which 81 Richards v. Baton Rouge W ater Co., 20 13-0 873 (La. App. 1 Cir. 3/ 21/ 14), 142 So. 3d 10 27, 10 33. N orthw inds Abatem ent, In c. v. Em p’rs Ins. of W ausau, 69 F.3d 130 4, 1311 (5th Cir. 1995). 83 Miss. Pow er & Light Co. v. United Gas Pipeline Co., 532 F.2d 412, 419 (5th Cir. 1976); see also Stew art– Sterling One, LLC v. Tricon Global Restaurants, Inc., No. Civ. A. 0 0 – 477, 20 0 2 WL 1837844, at *5 (E.D. La. Aug. 9, 20 0 2) (recogn izing that courts have consistently rejected these claim s). 84 St. Bernard Citizens for En vtl. Quality , Inc. v. Chalm ette Ref., L.L.C., 348 F. Supp. 2d 765, 767 (E.D. La. 20 0 4) (quotin g Black Sea Investm ent, Ltd. v. United Heritage Corp., 20 4 F.3d 647, 650 (5th Cir. 20 0 0 )). 85 Miss. Pow er & Light Co., 532 F.2d at 419. 82 13 referral is unwarranted, one of which arises anytim e the “agency’s position is sufficiently clear or nontechnical or when the issue is peripheral to the m ain litigation.”86 In this case, “the need to resolve disputes fairly yet as expeditiously as possible” outweighs any potential benefit gained from staying this proceeding until the Louisiana Departm ent of Environm ental Quality (LDEQ) renders future decisions. As Defendants point out, the LDEQ is tasked with “environm ental protection” and regulating solid waste disposal. 87 Plaintiffs claim is based on harm to property, not environ m ental protection, and does not necessarily contain any predicate issues wholly com m itted to the LDEQ for resolution. While LDEQ decisions m ay provide probative evidence in determ in ing Defendants’ liability, the decisions are not required to determ in e predicate issues—the jury is fully capable of adjudicating each elem ent of Plaintiffs’ claim under article 667. CON CLU SION IT IS ORD ERED that Defendants’ Motion to Dism iss 88 Plaintiffs’ claim for nuisance under Louisiana code of civil procedure articles 667– 669 is D EN IED . 89 N e w Orle a n s , Lo u is ian a, th is 2 9 th d ay o f Au gu s t, 2 0 19 . ______________________ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 86 Id. R. Doc. 52-1 at 39 (quoting LA. STAT. ANN . 30 :20 11(A)(1)). 88 R. Doc. 52. 89 To the extent Plaintiffs brin g a cause of action for n egligence, gross negligence, or prem ises liability, those causes of action are dism issed with prejudice. 87 14
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