Opinion
Case No. 8:00-CV-527, and Consolidated Cases, 8:00CV529; 8:00CV530; 8:00CV531; 8:00CV532; 8:00CV533; 8:00CV534; 8:00CV535; 8:00CV536; 8:00CV537; 8:01CV27; 8:01CV28
December 16, 2002
ORDER
This matter is before the Court on the Plaintiffs' Appeal (Filing No. 115) of Magistrate Judge Jaudzemis's order of October 11, 2002 (Filing No. 112), in which the Magistrate Judge denied the Plaintiffs' motions for leave to amend their complaints. The Court has analyzed the Plaintiffs' brief in support of the appeal (Filing No. 116), and the Defendant's brief in opposition to the appeal (Filing No. 118). In addition, the Court has considered Plaintiffs' Motion for Leave to File Reply Brief (Filing No. 121) and concluded that the motion should be granted. Thus, the Court has also analyzed the Plaintiffs' Reply Brief, which is attached to the motion for leave at Filing No. 121.
The Court denies the Appeal and adopts the Magistrate Judge's order, finding that the Plaintiffs' motions for leave to amend their complaints should be denied because the proposed amendments would add a cause of action not recognized under Nebraska law, and would be futile.
STANDARD OF REVIEW
The motions on which the Magistrate Judge ruled were nondispositive matters, because they were not excepted by 28 U.S.C. § 636(b)(1)(A). In reviewing a Magistrate Judge's order on a nondispositive matter, this Court "shall modify or set aside any portion of the . . . order found to be clearly erroneous or contrary to law." F.R.C.P. 72(a). The Magistrate Judge's order is not clearly erroneous or contrary to law. The Plaintiffs argue that the Magistrate Judge's order was dispositive in nature, because it will preclude the Plaintiffs from pursuing a cause of action. Even if the Magistrate Judge's order were considered to be dispositive, this Court accepts the order under F.R.C.P. 72(b), following a de novo determination.
CAUSES OF ACTION
The Plaintiffs allege that the Defendant (IBP) maintained a wastewater treatment facility that released hydrogen sulfide. As neighbors of the IBP facility, the Plaintiffs allegedly suffered from the offensive airborne emissions. The Plaintiffs' original complaints presented three theories of recovery — nuisance, negligence, and strict liability. The Plaintiffs seek only money damages and not injunctive relief.
The Plaintiffs' proposed amendments to their complaints would add a new cause of action — the theory that IBP created easements on the Plaintiffs' property and that the value of the easements should be measured by IBP's "unjust enrichment" from the use of the easements. Plaintiffs' proposed expert economist would testify that the appropriate measure of damages under this theory should be the economic benefit that accrued to IBP by its failure to install pollution control devices to abate the emissions in a more timely manner.
SUBSTANTIVE LAW
Because this matter is before the Court under 28 U.S.C. § 1332, due to diversity of citizenship of the parties, the substantive law of the forum state (Nebraska) must be applied. See, e.g., Jordan v. Nucor Corp. 295 F.3d 828, 834 (8th Cir. 2002).
When it is alleged that there has been an intentional and unreasonable invasion of another's interest in the private use and enjoyment of land, Nebraska follows the law of nuisance as articulated in the Restatement (Second) of Torts. Thomsen v. Greve, 4 Neb. App. 742, 749, 550 N.W.2d 49, 54 (citing Kopecky v. National Farms, Inc., 244 Neb. 846, 851, 510 N.W.2d 41, 47 (1994), and Hall v. Phillips, 231 Neb. 269, 278, 436 N.W.2d 139, 145 (1989)). The Magistrate Judge appropriately cited to Thomsen as factually analogous to the instant case, in that Thomsen involved alleged air pollution caused by a wood-burning stove and the resulting invasion of the plaintiff-neighbors' interest in the private use and enjoyment of their property.
Although an action brought under the theory of nuisance historically has been considered an action in equity for injunctive relief, Nebraska courts recognize the right of a plaintiff to recover special and general damages in such an action. When determining damages in such cases, Nebraska courts take into account all the injuries and losses caused by the nuisance, such as the depreciation in the market or rental value of the plaintiff's property, and the discomfort, annoyance, and inconvenience the plaintiff may have suffered. Karpisek v. Cather Sons Constr., Inc., 174 Neb. 234, 242, 117 N.W.2d 322, 327 (1962).
The Plaintiffs' theories of "easement" and "unjust enrichment" have not been applied by Nebraska courts in cases bearing any similarity to the instant case. It is recognized that an easement is an interest in real estate that may be conveyed by the owner, and, in some circumstances, obtained through prescriptive use. The Plaintiffs cite no case, however, and the Court has found no Nebraska case precedent, for the theory that a defendant creates an easement on a plaintiff's real estate when the defendant causes air pollution. The cases cited by the Plaintiffs in support of their theory relate to claims of unjust enrichment. Those cases do not resemble the instant case, but are generally claims for quantum meruit — the value of work performed by a plaintiff which benefitted a defendant. Cases involving air pollution have been addressed by the Nebraska courts through the application of the theory of nuisance. See, e.g., Thomsen, supra (smoke from wood-burning stove); Kopecky, supra (odor of animal waste); Hall, supra (wind blown herbicide); and Karpisek, supra (dust and silicon dioxcide).
Lawyers may advance novel theories on behalf of their clients, and in that manner the common law may evolve to address issues which arise within a rapidly-changing society. In this diversity action, however, this Court is bound to follow the substantive law of the state of Nebraska. This Court will not grant leave for the Plaintiffs to amend their complaints to add a novel cause of action which has not been recognized by Nebraska courts, particularly where Nebraska courts do recognize causes of action which can fully compensate the Plaintiffs for any damages they have suffered due to the conduct of IBP.
IT IS ORDERED:
(1) Plaintiffs' Motion for Leave to Submit a Reply Brief (Filing No. 121) is granted;
(2) Plaintiffs' Appeal (Filing No. 115) is denied, and
(3) The Magistrate Judge's Order of October 11, 2002 (Filing No. 112), denying the Plaintiffs' Motions for Leave to Amend, is accepted without modification.