Published By

Powell v. Tosh, 2009 WL 3484064, *1+ (W.D. Ky. Oct 22, 2009) (No. 5:09-CV-000121-TBR).

Does your swine waste smell? Mine doesn’t. At least that's what the defendants will argue in federal court since the case will remain in federal court. 

The Court declined to remand a removed state law class action holding that the case did not fit into the “local controversy” exception.

Twenty-eight residents and property owners in Marshall County, Kentucky brought a class action in state court alleging that the defendants’ swine barns on their Marshall County property were causing them nuisance and injury. We are not sure how they could tell if the swine odor was coming from the swine barns or their neighbors.

Three of the nine defendants were Marshall County residents. The plaintiffs alleged that these three local defendants pumped the liquid swine waste onto their lands causing the plaintiffs to breath an intolerable noxious odor. The plaintiffs further alleged that the local defendants were constructing a defective ‘Tosh Hog Barn’ and swine waste handling facilities according to the instructions of the defendant, Tosh Farms, who owned the swine barns. The plaintiffs also named as defendants, Bacon by Gosh—transporter of swine, Shiloh Hills—marketer of pre-cast concrete components for farming, and Pig Palace—constructor of barns used in swine farming.  Makes you want to eat a BLT, doesn’t it?

The defendants removed the action to the District Court, and the plaintiffs moved to remand. 

The District Court denied the motion. The District Court noted that there were more than 100 class members and the amount of damages claimed exceeded $5 million conferring federal jurisdiction. 

In addition, the District Court found that this case fell outside the "local controversy" exception under 28 U.S.C. § 1332(d)(4)(A), and thus refused to decline jurisdiction.  

The District Court explained that generally, under “local controversy exception,” the federal court declines jurisdiction if the controversy is uniquely local and does not reach into multiple states, and this exception applies when at least one significant defendant and more than two-thirds of the members of the putative classes are local.

First, the District Court noted that the plaintiffs alleged that more than two-thirds of the plaintiff class were citizens of Kentucky. 

Second, the District Court observed that the plaintiffs sought significant relief from the Tosh defendants, including Bacon By Gosh, Inc. Concerning issue of ‘significant basis,’ the District Court found that the actions of the Tosh defendants, including Bacon By Gosh, formed a significant basis of the class action claims when compared to the actions of the local and other defendants. 

These defendants entered into a Swine Service Agreement (No joke; that is what it is called) with local defendants and contracted with them to dispose of the waste and were alleged to have been responsible for the design of the barns at issue. Additionally, these defendants owned the swine at issue. Further, the majority of claims were against Tosh defendants, who were constructing Tosh Hog Barns, which allegedly caused various torts. 

The District Court found that as the Tosh defendants were from Tennessee, it defeated the plaintiffs’ local controversy exception, although the principal injuries occurred in Kentucky, and no other class action had been filed within last three years.

Next, the District Court refused to decline jurisdiction under the discretionary exception pursuant to § 1332(d)(3) finding that the plaintiffs had not met their burden of establishing that greater than one-third but less than two-thirds of the proposed class members were citizens of Kentucky, and that the primary defendants--Tosh defendants, were not citizens of Kentucky.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)