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Bell v. WestRock CP, LLC

United States District Court, E.D. Virginia, Richmond Division

April 26, 2019

ASHTON BELL, et al., Plaintiffs,
v.
WESTROCK CP, LLC, et al., Defendants.

          OPINION

          John A. Gibney, Jr. United States District Judge.

         The named plaintiffs[1] live in downtown West Point, Virginia, near WestRock CP, LLC's paper mill. West Point Chips, Inc., chips wood for the paper mill. The named plaintiffs bring claims for nuisance and trespass against WestRock and West Point Chips, alleging that large amounts of wood dust from the paper mill invade their land, homes, and cars. The named plaintiffs have moved for certification of a proposed class of West Point residents who live within one-half mile of the paper mill.

         The Court heard argument on the plaintiffs' motion for class certification on April 17, 2019. Because the plaintiffs meet the requirements for class certification under Federal Rule of Civil Procedure 23, the Court grants the motion and certifies the class.

         I. BACKGROUND

         The proposed class members live or own property within one-half mile of the paper mill and wood chipper facility ("the facility") in West Point. West Point residents have complained about the wood dust to the West Point Town Council and to the Virginia Department of Environmental Quality ("DEQ"). In 2015, DEQ conducted an inspection "in response to complaints filed by a nearby resident with concerns regarding excessive dust caused by facility operations."[2] (Dk. No. 83-15, at 11.) DEQ found West Point Chips out of compliance with a condition of its permit requiring it to "cover[] all conveyors that do not cross 14th Street" to control "[f]ugitive paniculate emissions." (Id.) DEQ's investigation revealed that "dust... at nearby residences consisted of material that is indicative of material stored at WestRock." (Id. at 18.)

         The named plaintiffs contend that the wood dust requires constant cleaning and prevents them from spending time outdoors. For example, named plaintiff Linda White says that her family no longer enjoys cookouts and other outdoor gatherings, because of "dust falling on your food or your chairs or on your person while you're [outside]." (Dk. No. 83-7, at 94:20-95:3.) Similarly, named plaintiff Nancy Saunders complains that the wood dust "prevent[s] her from regularly opening her windows and enjoying her porch and yard, and . . . require[s] her to clean more often than she would otherwise." (Dk. No. 83-11, at 4.)

         To show that the wood dust originates from the facility, the plaintiffs submitted an expert report from meteorologist David A. Sullivan. To "evaluate airborne exposures and deposition of wood dust" from the facility, Sullivan developed a "dispersion model" using "upper-air meteorological data." (Dk. No. 83-18, at 8, 30.) Sullivan's model showed "substantial quantities of wood dust being present in the air and deposited onto surfaces within West Point." (Id. at 10.)

         The plaintiffs sued WestRock and West Point Chips for nuisance, trespass, and injunctive relief. The Court dismissed the plaintiffs' claim for injunctive relief. On April 17, 2019, the Court held a hearing on the plaintiffs' motion for class certification. At the hearing, the Court indicated its intent to certify a class. Following the hearing, the Court granted the motion for class certification and certified the following class:

All persons, who on December 15, 2017, owned or occupied property in West Point located one-half (0.5) mile or less from 200 14th Street in West Point, Virginia, or rented and occupied property in West Point located one-half (0.5) mile or less from 200 14th Street in West Point, Virginia.

(Dk. No. 110, at 1.) Additionally, the Court certified the class "as to the following issues: (1) whether the defendants are liable to the plaintiffs for nuisance; and (2) whether the defendants are liable to the plaintiffs for trespass." (Id.)

         II. DISCUSSION[3]

         Rule 23 of the Federal Rules of Civil Procedure govern class actions, including class certification. The party seeking certification must first satisfy the requirements of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. Fed.R.Civ.P. 23(a). In addition to the requirements of Rule 23(a), the proposed class must fall within at least one of the three types of class actions listed in Rule 23(b). Rule 23(b)(3), the relevant type of class action in this case, requires (5) predominance and (6) superiority. Fed.R.Civ.P. 23(b)(3). Finally, Rule 23(c) requires (7) ascertainability, meaning that "the members of a proposed class be 'readily identifiable.'" EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (quoting Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972)); see Fed. R. Civ. P. 23(c)(1)(B). The Court addresses each requirement in turn.

         A. Numerosity

         The proposed class must demonstrate that "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). "No specified number is needed to maintain a class action under [Rule 23]; application of the rule is to be considered in light of the particular circumstances of the case and generally, unless abuse is shown, the trial court's decision on this issue is final." Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass'n,375 F.2d 648, 653 (4th Cir. 1967). Here, the proposed class encompasses at least 260 residents, which satisfies the numerosity requirement under Rule 23(a)(1). See Brady v. Thurston Motor Lines,726 F.2d 136, 145 (4th Cir. 1984) (finding that ...


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