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Bell v. Westrock CP, LLC

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

September 18, 2019

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

          OPINION

          John A. Gibney, Jr. United States District Judge

         In this class action, the plaintiffs seek redress for wood dust that escapes from the defendants' paper mill and wood chip mill in West Point, Virginia, resulting in a dusty invasion of the plaintiffs' land, homes, and cars. The plaintiffs allege that the wood dust amounts to nuisance and trespass under Virginia law, entitling them to compensatory damages. They also seek an injunction prohibiting future wood dust from escaping the paper mill and chip mill.

         The defendants have moved for summary judgment, arguing that the statute of limitations bars the plaintiffs' claims. The defendants contend that the escaping wood dust gives rise to a claim for permanent nuisance and trespass, so the five-year limitations period began to run when the plaintiffs first noticed the effects of the wood dust over ten years ago. The Court agrees that the statute of limitations bars the plaintiffs' damages claims, and thus will grant in part the motion for summary judgment. The Court, however, will deny in part the motion because the limitations period is not a barrier to the plaintiffs' request for injunctive relief.

         I. BACKGROUND

         WestRock CP, LLC ("WestRock"), has been operating a paper mill in West Point for one hundred years. This litigation concerns the wood chip storage yards at the paper mill. WestRock's supply of wood chips begins with tree deliveries to a chip mill run by West Point Chips, Inc. ("West Point Chips"), which is located next to the paper mill. West Point Chips debarks and chips the trees, and then sends the stripped bark and solid wood chips to WestRock's paper mill by a conveyance system. WestRock temporarily stores the solid wood chips in a wood yard. WestRock has stored wood chips in the wood yard for forty years. The paper mill and chip mill shut down annually for maintenance, typically for nine to fourteen days.

         The plaintiffs, Ashton Bell, Delilah Bell, Lucy Edwards, Clarence Burrell, Sheila Burrell, and Linda White, [1] have sued WestRock and West Point Chips. They allege that the wood dust that escapes from WestRock's wood yard and West Point Chips' wood piles rains down on their homes and properties in West Point, preventing them from enjoying the outdoors and requiring constant cleaning.

         According to the plaintiffs, the wood dust is "pervasive, . . . inescapable[, ] . . . regular, [and] intense, " and "affects [their] property every day." (Dk. Nos. 120-11, at 5; 120-12, at 5; 120-13, at 5; 120-14, at 5; 120-15, at 5; 120-18, at 5.) Notwithstanding the perpetual issues with the wood dust, the plaintiffs say that the problem has worsened since 2012 or 2013.

         Other than Edwards, the plaintiffs all say that they first noticed the wood dust problem in the early 2000s. Edwards first noticed the wood dust in 2007. Two plaintiffs-Edwards and Ashton Bell-sent a letter in February, 2006, addressed to "The Owners of the West Point Chip Mill." (Dk. No. 99-22, at 2.) Edwards and Bell complained of wood dust "enter[ing] [their] house[s] when the windows and doors are closed." (Id.)

         In their amended complaint, the plaintiffs contend that the escaping wood dust amounts to nuisance and trespass under Virginia law, entitling them to compensatory damages "in an amount no less than $25, 000 per property." (Dk. No. 65, at 11.) The plaintiffs characterize the wood dust as a temporary nuisance and trespass: "[T]he emission of the fugitive dust is intermittent and can [be] remediated by, among other things, reducing the size of the wood chip piles, removing the wood chip piles, enclosing the conveyer belts, using 'misters, ' reactive agents, and training facility personnel." (Id. at ¶38.) In addition to compensatory damages, the plaintiffs "seek an injunction prohibiting any future migration of dust from the wood piles or the wood chip piles onto their properties." (Id. at ¶ 5.) On April 26, 2019, the Court certified this case as a class action with respect to the defendants' liability for nuisance and trespass.

         The defendants have now moved for summary judgment, arguing that Virginia's five-year statute of limitations bars the plaintiffs' damages claims. The defendants argue that the plaintiffs assert claims for permanent nuisance and trespass, so the limitations period began to run when the plaintiffs first noticed problems with the wood dust in the 2000s. The plaintiffs insist that their claims are for temporary nuisance and trespass, so the statute of limitations begins running anew with each alleged harm.

         II. DISCUSSION[2]

         A. Claims for Damages

         Under Virginia law, a five-year limitations period applies to nuisance and trespass claims. See Va. Code Ann. § 8.01-243(B). Courts apply "substantially the same" analysis "for statute-of-limitations purposes" when evaluating nuisance and trespass claims. Forest Lakes Cmty. Ass'n, Inc. v. United Land Corp. of Am., 293 Va. 113, 125 n.9 (2017).

         The Supreme Court of Virginia has "adopted the prevailing view that a cause of action involving an injury of a 'permanent character, resulting from a permanent structure' accrue[s] when the injury was first sustained . . . even though 'the injury constantly and regularly recurs' over time." Id. at 126 (internal citations omitted). In other words, "when the recurring injuries, 'in the normal course of things, will continue indefinitely, ... the entire damage suffered, both past and future, must be recovered in that action, ' and as a result, 'the right to recover will be barred unless it is brought within the ...


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