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Williams v. Invenergy, LLC

United States District Court, D. Oregon

December 16, 2014

INVENERGY, LLC, an Illinois corporation, and WILLOW CREEK ENERGY, LLC, a Delaware corporation, Defendants.


JOHN V. ACOSTA, Magistrate Judge.


Plaintiff Daniel Brian Williams ("Williams") brings claims for statutory nuisance, common-law nuisance, and trespass to land. Williams's claims center on Defendants Invenergy, LLC, ("Invenergy") and Willow Creek Energy, LLC ("Willow Creek") (collectively "Defendants"), operating a forty-eight turbine wind farm (the "Wind Farm") near Williams's property.

Before the court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56.[1] Defendants assert Williams has failed to state a cognizable claim for statutory nuisance and failed to allege facts sufficient to state a plausible claim for trespass, and they seek dismissal of those claims. Defendants also assert Williams failed to exhaust his administrative remedies, and they seek summary judgment on this basis. Williams opposes Defendants' motion and further asserts the motion is untimely.

Defendants' motion is granted as to Williams's claims for nuisance per se, statutory nuisance, and trespass. Defendant's motion is denied as to Williams's alleged failure to exhaust his administrative remedies, Plaintiffs request to deny Defendants' motion as untimely is denied.[2]


On January 31, 2005, Morrow County granted Defendants conditional use approval to constructand operate a seventy-two megawatt wind-powered electrical-generation facility. (Compl. ¶ 8.) The Wind Farm consists of forty-eight wind turbines and is the first facility of its kind permitted in Morrow County. (Compl. ¶ 8.) Williams did not participate in the public portions of the permitting process. (Compl. ¶ 9.)

During the summer of 2008, Williams and other local property owners (collectively "Property Owners") complained to Defendants about the potential adverse affects of the Wind Farm being constructed near their property. (Compl. ¶ 10.) David Iadarola, Defendants' project developer at the time, met with the Property Owners at Williams's home on July 16, 2008, to address these concerns. (Compl. ¶ 10.) At the meeting, Mr. Iadarola informed the Property Owners that Morrow County Ordinance No. MCC-5-96 governed the noise output of the Wind Farm. (Compl. ¶ 10.) Mr. Iadarola stated that ordinance allowed for the Wind Farm to make noise up to fifty-five decibels ("dBA") during the day and up to fifty dBAs at night. (Compl. ¶ 10.) A second meeting was held on August 13, 2008, at the Eaton residence. (Compl. ¶ 10.) At that meeting, Mr. Eaton informed Mr. Iadarola and Clint Brooks, Defendants's site manager, that statewide regulations controlled the issue and that those regulations allowed the Wind Farm to make noise only up to thirty-six dBAs. (Compl. ¶ 10.)

On November 3, 2008, the Property Owners complained about the anticipated noise pollution to Morrow County officials. (Compl. ¶ 13.) As part of this complaint, the Property Owners claim Defendants stated they could not comply with the thirty-six dBA standard and produced a computer mapping showing expected noncompliance with that standard. (Compl. ¶ 13.) On December 3, 2008, Defendants responded, asserting the thirty-six dBA standard would be met. (Compl. ¶ 14.) That assertion was later proven incorrect by Defendants' own testing. (Compl. ¶ 14.) Later that month, the Wind Farm became operational, with each turbine coming online sequentially. (Compl. ¶ 15.)

On January 7, 2009, Williams and the other property owners complained to Morrow County officials that noise from the Wind Farm exceeded thirty-six dBAs. (Compl, ¶ 16.) Additionally, the Wind Farm was adversely affecting the health and sleep of the Property Owners in violation of the fust condition of Defendants' conditional use permit. (Compl. ¶ 16.)

In response to this complaint, Defendants hired a wind energy consultant, Michael D. Theriault Acoustics, Inc., to conduct noise studies. (Compl. ¶ 18.) On May 13, 2009, noise monitoring systems were placed in Williams's home. (Compl. ¶ 18.) The energy consultant issued a report on June 19, 2009, registering the regular noise exceedances between forty-two and forty-three dBAs. (Compl. ¶ 18.)

From June 2009 to the present, Defendants attempted to reduce the noise produced by the Wind Farm. (Compl. ¶ 19.) Defendants designed, tested, and are now implementing a system for predicting when wind turbine noise adds more than ten dBAs to the background ambient noise, which system is intended to bring the wind farm into compliance with the applicable standards. (Compl. ¶ 19.) This system recognizes three conditions that, when present, require a shut down of turbines in close proximity to Williams's property: 1) high wind speed at the turbine hubs, 2) low ground wind speed at Williams's residence, and 3) wind out of the southwest. (Compl. ¶ 19.) This system will not catch all exceedances at Williams's residence. (Compl. ¶ 19.)

On May 25, 2010, the Morrow County Planning Commission ruled that Defendants were in violation of the state-wide noise standards. (Compl. ¶ 20.) For the following two years, Williams and Defendants litigated the issue twice before the Morrow County Planning Commission, three times before the Morrow County Court, and twice before the Land Use Board of Appeals ("LUBA"). (Compl. ¶ 20.) While LUBA found exceedences at Williams's property, it declined to require Morrow County enforce the ordinances because LUBA concluded it lacked that authority. (Compl. ¶ 20.)

On June 29, 2012, Defendants set up acoustical measurement equipment on Williams's property to collect data. (Compl. ¶ 21.) Defendants used this data to design a system that would cutoff turbine operations to eliminate noise exceeding ordinance limits. (Compl. ¶ 21.) In January 2013, Defendants began shutting down certain turbines if certain conditions were present to test the relationship between weather conditions and noise in excess often dBAs over the ambient noise at Williams's property. (Compl. ¶ 21.) Predictive models show Defendants' current system will not curtail all noise exceedences. (Compl. ¶ 22.) In addition, the system Defendants are developing will go into action only after an exceedence takes place, instead of in anticipation of an exceedence. (Compl. ¶ 23(d).)

Legal Standard

I. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted.

On a motion to dismiss for failure to state a claim, the court must take as true all allegations of material fact, construing them in the light most favorable to the nonmoving party. Am. Family Ass'n Inc. v. City & County of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). The court's review is limited to the face of the complaint, any documents referenced in the complaint, and those matters which the court may properly take judicial notice. Schwartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Otherwise, as a general rule, a district court may not consider any material outside the pleadings when ruling on a FRCP 12(b)(6) motion. Lee v. City of L. A., 250 F.3d 668, 688 (9th Cir. 2001).

A well-pleaded complaint must have "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a) (2014). A FRCP 12(b)(6) motion is granted if the allegations in the complaint are insufficient to state a claim for relief. FED. R. CIV. P. 12(b)(6) (2013). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court explained the necessity of including sufficient facts in the pleading to give proper notice of the claim and its basis: "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement to relief requires more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do." Id. at 555 (alteration omitted). With this in mind, the Court noted "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely, '" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

Later, in Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009), the Court illuminated two principles underlying its decision in Twombly. First, that a court must accept as true all allegations in a complaint does not require a court to accept as true legal conclusions in a pleading. Id. at 678. Second, the complaint must contain a plausible, not merely possible, claim for relief, Id. at 679. The Court clarified that "[d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007)). Further, the Court concluded "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief." Id.

II, Motion for Judgment on the Pleadings,

A motion for judgment on the pleadings is governed by Rule 12(c), which states, "[a]fter the pleadings are closed - but early enough not to delay the trial - a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c) (2013). The purpose of a Rule 12(c) motion is to challenge the sufficiency of the opposing party's pleadings, and the court applies the same standard as a motion under Rule 12(b)(6). Chavez v. United States, 683 F.3d 1102, 1108-09 (9th Cir. 2012). Accordingly, judgment on the pleadings is appropriate when, even if all material facts in the pleading under attack are true, the moving party is entitled to judgment as a matter of law. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). If matters outside the pleadings are considered, the motion shall be treated as one for summary judgment. FED. R. CIV. P. 12(d) (2013).

III. Motion for Summary Judgment.

Summary judgment is appropriate where the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) (2012). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial, Id. at 324. A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Clicks Billiards Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976), Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).

However, deference to the nonmoving party has limits. A party asserting that a fact cannot be true or is genuinely disputed must support the assertion with admissible evidence. FED. R. CIV. P. 56(c) (2012). The "mere existence of a scintilla of evidence in support of the [party's] position [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations marks omitted).


Defendants assert four arguments. First, Defendants argue Oregon law does not recognize nuisance per se as a cause of action. Second, Defendants contend that Williams is attempting to transform a violation of noise ordinances into a common law claim for nuisance. Third, Defendants argue Williams has failed to allege facts sufficient for a trespass claim. Fourth, Defendants contend Williams failed to exhaust the administrative remedies available to him by failing to appeal LUBA's adverse determinations. Williams asserts that Defendants' motion to dismiss is not timely and should be dismissed on that ground. The court considers Williams's timeliness argument first, and then each of Defendants' arguments in turn,

I. Timing of Defendants' Motion to Dismiss

Williams's untimeliness argument actually challenges the sequencing, not timeliness, of Defendants' motion. Specifically, Williams contends Defendants' motion to dismiss for failure to state a claim must be denied because Defendants filed their motion after, instead of before, they filed their answer. Williams argues Defendants have thus relinquished the procedural right to attack his complaint under Rule 12(b)(6) for failure to state a claim, and they now may proceed only by a motion for judgment on the pleadings under Rule 12(c). Williams asserts that because both Rule 12(c) and controlling case law require a motion for judgment on the pleadings be brought only after the pleadings are closed, Defendants' motion is untimely as premature.

A Rule 12(b)(6) motion "must be made before the responsive pleading." Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004). When a 12(b)(6) motion is filed after the answer, the motion should be treated as one for judgment on the pleadings. Elvig, 375 F.3d at 954. See also Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (holding that the "best approach" is to treat a motion to dismiss filed after the answer as a motion for judgment on the pleadings). Thus, the question here is whether the court may consider Defendants' motion now, or whether Defendants must refile their motion once the pleadings are closed.

Defendants' motion is timely for two independent reasons. First, Defendants' motion is consistent with Rule 12 (c)'s requirements. Federal Rule of Civil Procedure 12(c) directs that a motion for judgment on the pleadings be filed "[ajfter the pleadings are closed[.]" The pleadings are closed when all required or permitted pleadings, as defined in Rule 7(a), have been filed and served. Norcal Gold, Inc., v. Laubly, 543 F.Supp. 1132, 1135 (E.D. Cal. 2008). See also In re Villegas, 132 B.R, 742, 745 (9th Cir. BAP 1991) ("Pleadings are not closed until at least an answer has been filed.... Judgment on the pleadings may not be entered where no answer has been filed."). Rule 7(a) defines pleadings as the complaint; answer to a complaint, counterclaim, or cross-claim; a third-party complaint; an answer to a third-party complaint; and a reply to an answer.

Williams filed his complaint on August 9, 2013, and Defendants filed their answer on October 22, 2013. The case law makes clear that a motion for judgment on the pleadings may be filed as early as after the answer is filed, but may not be filed before the answer is filed. Defendants filed their motion to dismiss well after they filed their answer. Further, in the time since Williams filed his complaint and Defendants filed their answer, neither party has filed or sought leave to file additional pleadings, and neither party has suggested, directly or indirectly, that further pleadings are, or might be, forthcoming. On this record, therefore, the pleadings in this case effectively are closed and Defendants' motion thus is properly filed and considered as a motion for judgment on the pleadings.

Second, Defendants' motion to dismiss is consistent with the court's December 2, 2013 scheduling order. At the Rule 16 conference held that date, the court directed Defendants to file any motion to dismiss no later than February 3, 2014. The court's minute order confirmed this directive: "Any motion regarding plaintiffs exhaustion of administrative remedies and/or failure to state a claim are to be filed no later than February 3, 2014." (Dkt. No. 16.) By setting an early date for Defendants to file all motions challenging the sufficiency of Williams's claims or the appropriateness of Williams's claims being heard by this court, the court intended to resolve all procedural issues that could affect the nature and scope of the parties' discovery efforts, and to focus the legal issues to be decided,

Thus, Defendants timely filed their motion to dismiss under rule 12(b)(6) consistent with the court's scheduling order, which modified the rule's timing requirements. The court has the express authority to do so. See FED. R CIV. P. 1 (the rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding"). See also FED. R CIV, P. 16(a) (authorizing the court to set case schedules in part for the purposes of expediting case disposition, managing case activities, and discouraging wasteful pretrial activities). For this additional reason, Defendants' motion is timely filed,

The remaining question is whether the court should consider Defendants' motion under the Rule 12(b)(6) standard or the Rule 12(c) standard, because either standard could apply in light of the procedural posture created by the filing sequence of answer, Rule 16 order, and motion to dismiss. Ultimately, it makes little difference which standard is applied here because the two standards essentially are the same: both Rule 12(b)(6) and Rule 12(c) require the court to accept as true the allegations in the complaint in determining whether a complaint sufficiently states a claim upon which relief may be granted. Compare, e.g., Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (applying Rule 12(c), court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party"), with Barker v. Riverside County Office of Edua., 584 F.3d 821, 824 (9th Cir. 2009) (applying Rule 12(b)(6), the court must "accept as true the facts alleged in the complaint" and must "draw inferences in the light most favorable to the plaintiff"). While the two rules differ in some ways, those differences are not relevant here because Defendants' challenges do not implicate factual disputes; defendants contend Williams's statutory nuisance claim is not a cognizable legal theory, and argue his trespass claim fails to satisfy the elements for such a claim even if all his allegations are true.

The court will apply the Rule 12(b)(6) standard. The court specifically ordered Defendants to file motions to dismiss by February 3, 2014, even though Defendants already had filed their answer, under its authority to manage cases efficiently and expeditiously. Further, Rule 12(h)(2) makes clear that a challenge of failure to state a claim may be raised at anytime, including at trial, notwithstanding the number or subpart of the rule used to invoke that challenge.

II. Nuisance Per Se and Statutory Tort

Defendants contend Oregon law does not recognize a "statutory nuisance" claim for the violation of a statute or ordinance. Defendants cite Dept. Envtl Quality v. Chem. Waste Storage & Disposition, Inc., 19 Or.App. 712 (1974) (" DEQ ") in support of their position, a case which evaluated the circumstances under which violation of a statute constituted nuisance per se. Williams responds first that ORS § 467.010 and Oregon Administrative Rule ("OAR") XXX-XXX-XXXX, et seq.[3] (together the "Provisions"), contemplate nuisance liability, and that violation of the Provisions constitutes nuisance per se when Oregon principles of statutory construction are applied. Williams alternatively argues the court should infer a statutory nuisance claim from the Provisions based on the mandatory ...

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