IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
Master Case No. 5:15-CV-00013-BR

)
IN RE: NC SWINE FARM ) MEMORANDUM IN SUPPORT OF
NUISANCE LITIGATION ) MOTION FOR JUDGMENT ON THE
) PLEADINGS
)
) Fed. R. Civ. P. 12(c)
)

THIS DOCUMENT RELATES TO: 1

Anderson v. Murphy-Brown LLC (Case No. 7:14-CV-00183-BR)

Artis v. Murphy-Brown LLC (Case No. 7:14-CV-00237-BR)
McGowan v. Murphy-Brown LLC (Case No. 7:14-CV-00182-BR)
McKiver v. Murphy-Brown LLC (Case No. 7:14-CV-00180-BR)

1
While there are five cases in the Discovery Pool, one of those five cases does not involve claims related
to any contract farms. See Gillis v. Murphy-Brown LLC (Case No. 7:14-CV-00185-BR). As a result, this
motion applies only to the four cases listed here.

Case 5:15-cv-00013-BR Document 169 Filed 09/19/16 Page 1 of 17

 INTRODUCTION

Nuisance is a property-based tort. The critical inquiry in a nuisance case is whether a

defendants use of its property unreasonably interferes with the plaintiffs use of theirs. While

Murphy-Brown is the only named defendant, eight of the nine farms at issue in the Discovery

Pool Cases are owned by individual citizens of North Carolina (the landowners). The

landowners swine farming operations are specifically permitted by the State of North Carolina

pursuant to the Swine Farm Siting Act, N.C. Gen. Stat. 106-800 to -805 (2001) (the Siting

Act), which seeks to balance the development of pork production with the rights of owners of

adjoining property. N.C. Gen. Stat. 106-801 ([C]ertain limitations on the siting of swine

houses and lagoons for swine farms can assist in the development of pork production, which

contributes to the economic development of the State, by lessening the interference with the use

and enjoyment of adjoining property.).

The central issue in these cases is whether the state-permitted swine farming operations

taking place on the landowners property give rise to a nuisance. The resolution of that question

will impact the landowners basic property rights, regardless of whether they are named as

defendants. However, if these cases proceed in their absence, the landowners will be unable to

adequately protect their rights. At the same time, allowing these cases to go forward without the

landowners forces Murphy-Brown to defend the location of the farms, the management of the

farms, and the farms compliance with any number of North Carolina statutes and regulations

all matters that are indisputably the legal obligation of the permit holders. Given this, the

landowners are necessary parties to this litigation, and the Rules require that they be joined.

Because joinder of the landowners would destroy diversity of citizenship and deprive

this Court of subject matter jurisdiction, the critical question is whether, in equity and good

Case 5:15-cv-00013-BR Document 169 Filed 09/19/16 Page 2 of 17

conscience, these cases can proceed in the landowners absence. They cannot. As a result, this

Court should enter judgment on the pleadings in favor of Murphy-Brown.

FACTUAL BACKGROUND

The present cases involve nuisance and negligence claims against Murphy-Brown based

on the operations at the farms in the attached exhibit. (Ex. 3, Chart Containing Farm

Information.) Plaintiffs originally filed suit against the owners of many of these farms in state

court in North Carolina. (Id.) However, beginning in August 2014, Plaintiffs began dismissing

the state cases and re-filing them in federal court without naming the landowners as defendants.

(See, e.g., Second Am. Compl., Artis v. Murphy-Brown, LLC, No. 7:14-CV-00237-BR (E.D.N.C.

July 31, 2015), ECF No. 27.) This blatant forum-shopping was designed to artificially establish

federal diversity jurisdiction and, therefore, avoid local venues where the jury pool probably

would consist of people familiar with the farms and the positive impact that they have on the

community and to disguise the fact that these lawsuits actually target locally-owned, family

farms. Since these cases were re-filed, Murphy-Brown has repeatedly noted that the contract

landowners are necessary and indispensable parties. 2

ARGUMENT

I. Legal Standard

The Federal Rules seek to bring all persons that may have an interest in the subject

[matter] of an action together in one forum so that the lawsuit can be fairly and completely

disposed of. Pulitzer-Polster v. Pulitzer, 784 F.2d 1305, 1308 (5th Cir. 1986) (citing Fed. R.

Civ. P. 19, Advisory Committee Note). Accordingly, Rule 19 sets forth a two-step inquiry for a

2
Murphy-Brown raised this defense in its memorandum in support of its motion to dismiss (Doc. 14 at 2),
the order regarding preliminary discovery (Doc. 18 at 2), and its answers to Plaintiffs Second Amended
Complaints (see, e.g., Def. Murphy-Brown, LLCs Answer & Affirmative Defenses to Pls. Second Am.
Compl. 1-25, Artis v. Murphy-Brown, LLC, No. 7:14-CV-00237-BR (E.D.N.C. Aug. 31, 2015), ECF
No. 29).
3

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district court to determine whether an absent entity should be joined in an action. Fed. R. Civ. P.

19(a); see also Natl Union Fire Ins. Co. v. Rite Aid of S.C., Inc., 210 F.3d 246, 249 (4th Cir.

2000). First, the court must determine if the entity is a necessary party under Rule 19(a). Id.

Second, if the court finds that the absent party is necessary and that joinder of that party would

deprive the court of subject matter jurisdiction, the court must determine whether the entity is

indispensable that is, whether in equity and good conscience the case can proceed in that

entitys absence. Fed. R. Civ. P. 19(b).

The defense of failure to join a person required by Rule 19 may be raised in a number of

different ways, including in a motion for judgment on the pleadings pursuant to Rule 12(c). See

Fed. R. Civ. P. 12(h)(2). Motions pursuant to Rule 12(c) may be made any time [a]fter the

pleadings are closedbut early enough not to delay trial. 3 Fed. R. Civ. P. 12(c). A court

should grant a motion for judgment on the pleadings when the moving party has clearly

established that no material issue of fact remains to be resolved and the party is entitled to

judgment as a matter of law. People for Ethical Treatment of Animals, Inc. v. United States

Dept of Agric., --- F.3d ---, No. 5:15-CV-429-D, 2016 WL 3902745, at *2 (E.D.N.C. July 12,

2016) (citation omitted), appeal docketed, No. 16-2029 (4th Cir. Sept. 8, 2016); see also

Mayfield v. Natl Assn for Stock Car Auto Racing, Inc., 674 F.3d 369, 375 (4th Cir. 2012);

Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002).

3
Courts routinely hold that motions based on the failure to join a person required by Rule 19 are
premature absent some discovery and defer ruling on such motions until some discovery has been
conducted. See, e.g., Purvis v. Hamwi, 828 F. Supp. 1479, 1488 (D. Colo. 1993) ([A] motion to dismiss
for failure to join an indispensable party is premature absent discovery.); Selective Ins. Co. of S.C. v. City
of Paris, No. 07-2224, 2008 WL 927956, at *2 (C.D. Ill. Mar. 17, 2008) ([T]he decision regarding
joinder [under Rule 19] may properly be deferred if adequate information is not available at the time.),
affd, 2008 WL 934928 (C.D. Ill. Apr. 7, 2008); Fed. R. Civ. P. 19 advisory committees note to 1966
amendment (explaining that the relationship of an absent person to the action, and the practical effects of
an adjudication upon him and others, may not be sufficiently revealed at the pleading stage; in such a case
it would be appropriate to defer decision [under Rule 19] until the action was further advanced.).

Case 5:15-cv-00013-BR Document 169 Filed 09/19/16 Page 4 of 17

 In considering a motion for judgment on the pleadings, the court must construe the facts

and reasonable inferences in the light most favorable to the nonmoving party. People for

Ethical Treatment of Animals, 2016 WL 3902745, at *2 (citing Massey v. Ojaniit, 759 F.3d 343,

347, 352-53 (4th Cir. 2014)) (quotation marks omitted). However, a court need not accept a

pleadings legal conclusions. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Nor

must it accept as true unwarranted inferences, unreasonable conclusions, or arguments. Id.

(citation omitted).

Finally, in adjudicating a motion under Rule 12(c), this Court may consider the

complaint, the answer, and any documents incorporated by reference into these pleadings.

Crisp v. Allied Interstate Collection Agency, 149 F. Supp. 3d 589, 594 n.5 (M.D.N.C. 2016).

The Court may also consider additional documents so long as these documents are integral to

the complaint and authentic. Id. (citing Massey, 759 F.3d at 353 (considering trial transcripts

attached to 12(c) motion for judgment on the pleadings)) (additional citations omitted).

II. The landowners are necessary parties because they have several significant interests
in the outcome of this litigation, and those interests would be severely compromised
by a finding of nuisance.

Rule 19(a) provides a list factors for courts to weigh in considering whether an absent

person is a necessary party. These factors are whether: (1) lack of joinder of the absent person

would preclude complete relief among those already parties, or (2) lack of joinder of an absent

person claiming an interest in the subject matter of the action would (i) impair or impede the

absent persons ability to protect his or her interest, or (ii) leave the persons already parties

subject to substantial risk of double or inconsistent obligations. Fed. R. Civ. P. 19(a). While

these factors help guide a courts Rule 19 analysis, they are not meant to be applied rigidly.

Teamsters Local Union No. 171 v. Keal Driveaway Co., 173 F.3d 915, 918 (4th Cir. 1999).

Case 5:15-cv-00013-BR Document 169 Filed 09/19/16 Page 5 of 17

Instead, a decision whether to dismiss must be made pragmatically, in the context of the

substance of each case, rather than by procedural formula. Id. (citation omitted). In conducting

this inquiry, a court must consider the practical potential for prejudice to all parties, including

those not before it. Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 441 (4th Cir. 1999) (citation

and internal quotation marks omitted).

A. A finding of nuisance in these cases would interfere with the landowners

fundamental rights to use and improve their farms as they see fit.

As owners of the property at issue, the landowners have fundamental rights to use and

improve their properties as they see fit. See, e.g., Kirby v. N.C. Dept of Transp., --- N.C. ----,

786 S.E.2d 919, 923-24 (2016). The landowners have chosen to operate swine farms on their

property and to do so pursuant to contracts with Murphy-Brown. By choosing to raise swine

through an integrator, the landowners knew that their swine would be housed in barns and that

they would be using the lagoon and spray field system for nutrient management. These activities

are permitted by the State of North Carolina, and it is the landowners, not Murphy-Brown, who

hold the permits. (See Ex. 3, Chart Containing Farm Information.) 4 As a result, it is the

landowners, not Murphy-Brown, who are responsible for ensuring that the farms are operated in

compliance with North Carolina law.

Despite the fact that the landowners are not named as defendants in these cases, the

Plaintiffs challenge these rights in a number of ways. For example, many Plaintiffs allege that

the nuisances are caused by the existence of swine farming in close proximity to their

4
The name of the permit holder on each of these farms is publicly available on the North Carolina
Department of Environmental Qualitys website. See Active Animal Feeding Operation Permits, North
Carolina Department of Environmental Quality, https://deq.nc.gov/about/divisions/water-
resources/water-resources-permits/wastewater-branch/animal-feeding-operation-permits/permits (follow
Animal Feeding Operations Active Permits hyperlink at the bottom of the page) (last visited September
18, 2016).
6

Case 5:15-cv-00013-BR Document 169 Filed 09/19/16 Page 6 of 17

properties. 5 Moreover, during their recent depositions, many Plaintiffs admitted that they

brought these lawsuits in an effort to restrict the landowners ability to raise swine on their

farms. (Ex. 5, Cartha Williams Dep. 115:20-116:18 (explaining that she tried to stop Joey

Carter Farms from being built); Carl Lewis Dep. 75:17-19 (testifying that his lawsuit is asking

the owner of the hog farm make changes to the farm[.]); N. Woodward, Jr. Dep. 222:17-22

(testifying that he would like for there to be less activity going on at the farms).) Others

insisted that there would be no amount of odor that would be acceptable to them, which again

reveals that their actual objective is to halt all swine farming at the landowners farms:

Do you believe that there should be any smell coming from the hog farms?
Mr. Doby: Objection.
A: No. (Ex. 5, J. Boney Dep. 38:2-5.)

Is there any amount of odor coming from the hog farms, what you believe is
coming from the hog farms, that is acceptable to you?
A: No smell [is] really acceptable to me. (Ex. 5, W. Messick Dep. 123:18-22.)

So theres no amount of acceptable odor?

Mr. Doby: Objection.
A: Theres no acceptable odor. (Ex. 5, D. Carter Dep. 222:12-14.)

Is there any amount of odor that could come from a hog farm that would be
acceptable to you?
Mr. Doby: Objection.
A: No. (Ex. 5, A. McKiver Dep. 103:25-104:4.)

Again, these allegations implicate the interests of the landowners far more than the

interests of Murphy-Brown. The landowners actually own the land and have a vested interest in

being able to raise swine on that land. If the farms at issue are deemed a nuisance because they

are too close to the Plaintiffs properties, the growers rights to make beneficial use of their

properties in a manner of their choosing will be vitiated.

5
See, e.g., Second Am. Compl. 255, Artis v. Murphy-Brown LLC, Case No. 7:14-cv-00237-BR,
(E.D.N.C. July 31, 2015), ECF No. 27; see also Second Am. Compl. 246, McKiver v. Murphy-Brown
LLC, Case No. 7:14-cv-180-BR (E.D.N.C. July 31, 2015), ECF No. 34.
7

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 Likewise, Plaintiffs assert that the use of lagoons as a nutrient management practice

contributes to the nuisance. 6 However, it is undisputed that the lagoons are permitted by the

North Carolina Department of Environment and Natural Resources (DENR), 7 and those

permits list the landowners as permit holders. (Ex. 3, Chart Containing Farm Information.) If

the jury were to agree that the use of lagoons creates a nuisance, the landowners permits would

become worthless. Such a finding plainly interferes with a valuable property right.

Given this, it is clear that a finding that the farms constitute a nuisance would necessarily

interfere with the landowners chosen use of their property. Watts v. Pama Mfg. Co., 256 N.C.

611, 617, 124 S.E.2d 809, 814 (1962) (describing nuisance as a tort that seeks to define the

precise limits of ones right to do as he pleases with his own property (citation omitted)).

Courts throughout the Fourth Circuit routinely find that absent entities with similar property

interests are necessary parties to a lawsuit that threatens those interests. See, e.g., Home Buyers

Warranty Corp. v. Hanna, 750 F.3d 427, 434 (4th Cir. 2014) (concluding that absent home

builder was a necessary party in part because it had a direct pecuniary interest in the dispute);

First United Bank & Trust v. Square at Falling Run, LLC, No. 1:11-cv-31, 2011 WL 1563027, at

*6 (N.D.W. Va. Apr. 25, 2011) (When a court proceeding directly affects or determines the

scope of rights or interests in real property, any persons who claim an interest in the real property

at issue are indispensable parties to the proceeding. (citation omitted)); May Apparel Grp., Inc.

6
See, e.g., Second Am. Compl. 6, Anderson v. Murphy-Brown LLC, Case 7:14-cv-00183-BR (E.D.N.C.
July 31, 2015) , ECF No. 34 (The use of the outmoded lagoon and sprayfield system has been banned
for new farms in North Carolina for years, and many measures exist to reduce the nuisance from existing
facilities. Defendant has the means and ability to correct the nuisance but has failed to do so negligently
and improperly.); see also, e.g., Second Am. Compl. 252, Artis v. Murphy-Brown LLC, Case No. 7:14-
cv-00237-BR (E.D.N.C. July 31, 2015), ECF No. 27 (After over than 15 years [sic] of a moratorium on
new construction of harmful lagoon and spray facilities, Murphy-Brown still sends its hogs to such
facilities under a one-sided contract grower system designed to maximize integrator profit without abating
the nuisance.).
7
DENR is currently known as the North Carolina Department of Environmental Quality (DEQ).

Case 5:15-cv-00013-BR Document 169 Filed 09/19/16 Page 8 of 17

v. Ava Imp.-Exp., Inc., 902 F. Supp. 93, 96 (M.D.N.C. 1995) (holding that owner of registered

trademark should be a party to any action to cancel his trademark).

Plaintiffs attempt to bury this problem by alleging that Murphy-Brown controls the

operations at the farms. (See generally, e.g., Second Am. Compl., Artis v. Murphy-Brown, LLC,

No. 7:14-CV-00237-BR (E.D.N.C. July 31, 2015), ECF No. 27.) However, as explained above,

the landowners own the farms, manage the swine farming operations, and hold the permits.

They are thus the primary actors whose interests are implicated by the Plaintiffs claims. Courts

throughout the country routinely reject similar attempts to use a vicarious liability theory to

avoid joining a necessary party and thereby manufacture federal jurisdiction. See, e.g., Freeman

v. Nw. Acceptance Corp., 754 F.2d 553, 559 (5th Cir. 1985) (finding corporate subsidiary to be

an indispensable party in action against parent based on theory of vicarious liability) (The

Freemans are by no means the first plaintiffs to use the alter ego doctrine in an attempt to avoid

joinder of a nondiverse party. . . . The tactic has met with singularly small success.); Dou Yee

Enters. (S) PTE, Ltd. v. Advantek, Inc., 149 F.R.D. 185, 188 (D. Minn. 1993) (same).

B. A finding of nuisance in these cases would subject the landowners to a

significant risk of future liability, including liability for punitive damages.

Any adverse judgment in these cases will subject the landowners to a substantial risk of

future liability. If any of these cases were to conclude with a finding that the farms at issue

constitute a nuisance, plaintiffs in subsequent nuisance actions against the landowners might

argue that the landowners are collaterally estopped from denying that the farms constitute a

nuisance. Similarly-situated plaintiffs have made similar arguments in other agricultural

nuisance cases. (See, e.g., Ex. 6, Pls. Mot. for Summ. J. Ag. Premium Standard Farms, Inc. &

ContiGroup Cos., Inc. & Mem. in Supp., Adwell v. Contigroup Cos., Case No. 02-cv-221544

(Jackson Cty., Mo. Cir. Ct. July 5, 2006).) At the very least, a future court might find an adverse

Case 5:15-cv-00013-BR Document 169 Filed 09/19/16 Page 9 of 17

ruling against Murphy-Brown in these cases to be persuasive precedent in a subsequent action

against the landowners, which would materially weaken the landowners litigation position in

that case. Thimbler, Inc. v. Unique Solutions Design USA, Ltd., No. 5:12-cv-695-BR, 2014 WL

1663418, at *4(E.D.N.C. Apr. 25, 2014) (Even if Unique Canada would not be legally bound,

an adverse ruling against Unique USA would be a persuasive precedent in a subsequent

proceeding and would weaken Unique Canadas bargaining position for settlement purposes.).

This risk alone is sufficient to render the landowners a necessary party here. Id.

Similarly, a finding of nuisance in these cases would increase the risk that the landowners

would be found liable for punitive damages in subsequent cases. In North Carolina, as

elsewhere, punitive damages are warranted on a finding of willful or wanton conduct. N.C.

Gen. Stat. 1D-15(a). A prior adverse judgment is relevant to showing mental culpability for

punitive damages. Johnson v. Colt Indus. Operating Corp., 797 F.2d 1530, 1533-34 (10th Cir.

1986); Boris v. Choicepoint Servs., Inc., 249 F. Supp. 2d 851, 861-62 (W.D. Ky. 2003). As a

result, if any of these cases ends with a finding that the contract farms at issue constitute a

nuisance, a court in a subsequent action against the owners of these farms could find that the

judgment in these cases placed the landowners on notice that their operations constitute a

nuisance. Such a finding would make the landowners susceptible to a finding that they have

acted willfully and, as a result, are liable for punitive damages. Similarly-situated Plaintiffs have

again made similar arguments. (See, e.g., Ex. 7, First Am. Pet., McClure. v. Continental Grain

Co., Case No. 02-cv-235330 (Jackson Cty., Mo. Cir. Ct. Feb. 9, 2012.) Setting aside the

question of whether this argument has merit it does not the mere availability of this argument

would weaken the landowners settlement position and result in unfair prejudice. Thimbler,

10

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2014 WL 1663418, at *4. As a result, the landowners must be joined so they can protect that

interest.

C. A finding of nuisance would vitiate the landowners interests in their

contracts with Murphy-Brown.

[A] contracting party is the paradigm of an indispensable party. National Union, 210 F.3d

at 252 (citation omitted). The resolution of these cases will directly impact the landowners

contractual rights and obligations under their contracts with Murphy-Brown. Pursuant to these

contracts, the landowners are responsible for growing Murphy-Browns swine and operating and

maintaining the facilities at which the swine are grown. (See, e.g., Ex. 4, Contracts with

Independent Landowners, at 3-4.) This includes an obligation to ensure that the farms comply

with existing laws and to control any odors emanating from the farms. (Id. at 4.) The

landowners are entitled to monetary compensation in return. (See, e.g., id. at 19-21.) If the

farms at issue are deemed to constitute a nuisance, the landowners will be in breach of their

agreements with Murphy-Brown. The landowners, therefore, must be joined so that they can be

given the opportunity to protect those interests. See, e.g., National Union, 210 F.3d at 251

([P]ermitting this suit to proceed without Rite Aid will impair or impede Rite Aids ability as

a contracting party to protect a claimed interest relating to the subject of the action.).

D. Forcing Murphy-Brown to defend these cases without the landowners would

be fundamentally unfair because the landowners presence is critical to
Murphy-Browns ability to raise key defenses.

North Carolinas Right to Farm Act codifies a complete defense to agricultural nuisance

claims:

No agricultural or forestry operation or any of its appurtenances shall be or

become a nuisance, private or public, by any changed conditions in or about the
locality outside of the operation after the operation has been in operation for more
than one year, when such operation was not a nuisance at the time the operation
began.

11

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N.C. Gen. Stat. 106-701(a). However, that defense does not apply if plaintiffs can establish

that a nuisance results from the negligent or improper operation of any agricultural or forestry

operation or its appurtenances. N.C. Gen. Stat. 106-701(a2). As a result, a key issue in these

cases will be whether the farms at issue were operated negligently or improperly. The

landowners compliance with their permits will, of course, be central to this determination.

However, because the landowners are the owners and permit holders of the farms, they, not

Murphy-Brown, will be the key actors whose conduct will be implicated. This means that all of

the key evidenceincluding the testimony of the people who own and operate the farms and any

documents generated and produced by the landowners related to their nutrient management

activitieswill be generated by and reflect the activities of the landowners, not Murphy-Brown.

If these cases were to proceed in the landowners absence, Murphy-Brown would be in the

untenable position of defending the activities at farms it does not operate with evidence it did not

create.

In addition, a critical factor that courts use in determining whether a nuisance exists

under North Carolina law is the suitability of the location for the defendants operation.

N.C.P.I. Civil805.25 (Private Nuisance). Obviously, the decision to use the farms at issue to

raise swine for sale to an integrator was made by the landowners, not Murphy-Brown. As a

result, it is fundamentally unfair to force Murphy-Brown to defend that decision in the

landowners absence. Many of the other factors considered under North Carolinas private

nuisance standard also require consideration of evidence pertaining primarily to the landowners,

including (1) the surroundings and conditions under which the defendants interference occurs,

(2) the nature, utility and social value of the defendants operation, (3) the priority in time of

occupation or conflicting uses between the plaintiff and the defendant. Id.

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 Courts throughout the country routinely find that an absent entity is an indispensable

party in similar situations. Freeman v. Nw. Acceptance Corp., 754 F.2d 553, 559 (5th Cir. 1985)

(finding an absent entity to be indispensable where that entities presence is critical to the

disposition of the important issues in the litigation [and its] evidence will either support the

complaint or bolster the defense (citation omitted)); Encatto Ltd. v. Obscura Digital Inc., No. C

12-2940 CW, 2013 WL 394195, at *3 (N.D. Cal. Jan. 30, 2013) (same); In re Toyota Motor

Corp., 785 F. Supp. 2d 883, 904 (C.D. Cal. 2011) (same). Because the landowners activities

and evidence they create are critical to the determination of nuisance liability and central

defenses such as the Right to Farm Act, this Court should reach a similar conclusion here.

III. Because the landowners and Murphy-Brown would be severely and irreparably
prejudiced by trying these cases to judgment in their absence, equity and good
conscience require the Court to enter judgment on the pleadings.

Because joinder of the landowners would destroy diversity and deprive this Court of

subject matter jurisdiction, the Court must consider whether the landowners are indispensable

parties under Rule 19(b). If so, this Court must enter judgment on the pleadings. Fed. R. Civ. P.

12(c); see also Fed. R. Civ. P. 12(h)(2) (stating that defense of failure to join a required party

may be raised in a 12(c) motion for judgment on the pleadings). While the dismissal of a case

is a drastic remedy [that] should be employed only sparingly, it is required if a non-joined party

to the dispute is both necessary and indispensable. Home Buyers Warranty Corp, 750 F.3d at

433 (citation and internal quotations marks omitted) (alteration in original).

In determining whether an absent entity is an indispensable party, the primary inquiry is

whether, in equity and good conscience, the action should proceed among the existing parties

before [the court.] Fed. R. Civ. P. 19(b). Analysis of whether a party is indispensable under

Rule 19(b) is not mechanical; rather it is conducted in light of the equities of the case at bar.

13

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National Union, 210 F.3d at 252 (citation omitted). Factors relevant to this inquiry include, but

are not limited to, (1) whether continuing the case to judgment in a persons absence might be

prejudicial to the person or those already parties; (2) whether the Court could shape relief to

mitigate or avoid damage to the absent parties; (3) whether the judgment rendered in the persons

absence would be adequate; and (4) whether the plaintiff will have an adequate remedy if the

action is dismissed for non-joinder. See Fed. R. Civ. P. 19(b); Republic of Phil. v. Pimentel, 553

U.S. 851, 862 (2008) (noting that the factors listed in Rule 19(b) are non-exclusive). In cases

where, as here, it is alleged that an absent party would be unfairly prejudiced by a judgment

rendered in its absence, the ultimate question is this: Were the case to proceed, could a decree

be crafted in a way that protects the interests of the missing party and that still provides adequate

relief to a successful litigant? Keal Driveaway Co., 173 F.3d at 918. Here, the answer to that

question is plainly No.

A. A judgment rendered in the landowners absence would be fundamentally

unfair.

Consideration of the first and third factors under the rulethe extent to which a

judgment rendered in the persons absence might prejudice the parties or would even be

adequateaddress much the same concerns as under the Rule 19(a)(2) analysis. Owens-

Illinois, Inc., 186 F.3d at 441. As explained above, if this suit were to proceed without the

landowners, they would be impaired or impeded from protecting [their] separate and distinct

interest in (1) protecting their ownership interest in the property at issue, (2) protecting against

an adverse judicial finding, and (3) protecting their interests in their contracts with Murphy-

Brown. National Union, 210 F.3d at 252-53. These interests are sufficient to make the

landowners indispensable. Thimbler, Inc., 2014 WL 1663418, at *5. Additionally, forcing

14

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Murphy-Brown to litigate these cases in the landowners absence would unfairly prejudice its

ability to fully defend against Plaintiffs claims.

B. A resolution on the merits will require a determination of whether the

landowners use of their property is reasonable.

As explained above, any resolution on the merits of these cases will require the finder of

fact to address whether the landowners operation and maintenance of the farms constitutes a

nuisance. See, e.g., National Union, 210 F.3d at 253 ([W]e cannot fathom how the district court

could have tailored its relief to lessen or avoid prejudice to Rite Aid and National Union. In

order to reach a judgment on the merits in this action, the district court could not have avoided

addressing the notice provisions of the policy and ancillary agreements[.]). As a result, this

Court cannot shape relief or reframe the issues in these cases to avoid prejudice to the

landowners.

Nor would it be possible to protect the landowners interests by calling them as witnesses

at trial. Because the landowners are the primary actors in claims implicating their farms, fairness

requires that they be joined as parties in order to protect those interests. Home Buyers Warranty

Corp., 750 F.3d at 434 (absent entities cannot serve as fact witnesses because fairness requires

that [they] be joined as necessary parties to protect their own interests in the determination of the

legal significance of their actions.); see also Freeman, 754 F.2d at 559 (absent party is more

than a key witness whose testimony would be of inestimable value. Instead [it] emerges as an

active participant in the alleged conversion. (alteration in original) (citation omitted)).

C. Plaintiffs obviously have an available alternative forum in North Carolina

state court.

Finally, there can be no dispute that the Plaintiffs would have an adequate remedy in

North Carolina state court. Indeed, because these cases involve exclusively state law claims,

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Case 5:15-cv-00013-BR Document 169 Filed 09/19/16 Page 15 of 17

North Carolina state court is probably the best forum for their resolution. See, e.g., Owens-

Illinois, Inc., 186 F.3d at 442 ([W]e see no reason why the Circuit Court of Kanawha County,

West Virginia will not provide an adequate remedy for the parties in this case. In fact, it is likely

the best place for the adjudication of this matter since all of the Plaintiffs work at the same

location and will share many witnesses and exhibits in the event a trial is held.).

CONCLUSION

For these reasons, Murphy-Brown respectfully requests that this Court enter the attached

proposed order granting this motion, enter judgment on the pleadings in favor of Murphy-Brown,

and grant such other and further relief as may be appropriate.

Respectfully submitted this 19th day of September, 2016.

/s/ Mark E. Anderson

Mark E. Anderson (N.C. Bar No. 15764)
McGUIREWOODS LLP
434 Fayetteville Street
Suite 2600
Raleigh, North Carolina 27601
Telephone: (919) 755-6600
Facsimile: (919) 755-6699
Email: [email protected]

Eugene E. Mathews III (Va. Bar No. 36384)

Tennille J. Checkovich (Va. Bar No. 68028)
(By Special Appearance)
McGUIREWOODS LLP
Gateway Plaza
800 East Canal Street
Richmond, Virginia 23219
Telephone: (804) 775-1000
Facsimile: (804) 775-1061
Email: [email protected]
[email protected]

Attorneys for Murphy-Brown LLC

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Case 5:15-cv-00013-BR Document 169 Filed 09/19/16 Page 16 of 17

 IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Master Case No. 5:15-CV-00013-BR

)
IN RE: NC SWINE FARM ) MEMORANDUM IN SUPPORT OF
NUISANCE LITIGATION ) MOTION FOR JUDGMENT ON THE
) PLEADINGS
)
) Fed. R. Civ. P. 12(c)
)

THIS DOCUMENT RELATES TO:

Anderson v. Murphy-Brown LLC (Case No. 7:14-CV-00183-BR)

Artis v. Murphy-Brown LLC (Case No. 7:14-CV-00237-BR)
McGowan v. Murphy-Brown LLC (Case No. 7:14-CV-00182-BR)
McKiver v. Murphy-Brown LLC (Case No. 7:14-CV-00180-BR)

CERTIFICATE OF SERVICE

I, Mark E. Anderson, do hereby certify that on the 19th day of September, 2016, I caused

a true and correct copy of DEFENDANT MURPHY-BROWN LLCS MEMORANDUM IN

SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS to be filed with the

Clerk of the Court using the CM/ECF system, which will send notification of such filing (NEF)

to all CM/ECF registered attorneys indicated on the NEF, including counsel for Plaintiffs.

Respectfully submitted,

/s/ Mark E. Anderson

Mark E. Anderson (N.C. Bar No. 15764)
McGUIREWOODS LLP
434 Fayetteville Street
Suite 2600
Raleigh, North Carolina 27601
Telephone: (919) 755-6600
Facsimile: (919) 755-6699
Email: [email protected]

Attorney for Murphy-Brown LLC

17

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