Animal Legal Def. Fund v. Olympic Game Farm, Inc., CASE NO. C18-6025RBL

387 F.Supp.3d 1202

ANIMAL LEGAL DEFENSE FUND, Plaintiff,

v.OLYMPIC GAME FARM, INC., Robert Beebe, James Beebe, and Kenneth Beebe, Defendants.

CASE NO. C18-6025RBL

United States District Court, W.D. Washington, at Tacoma.

Signed May 21, 2019

Alexandra J. Monson, Pro Hac Vice, Animal Legal Defense Fund, Cotati, CA, Rob Roy Smith, Rachel Saimons, Kilpatrick Townsend & Stockton LLP, Seattle, WA, Daniel Harold Waltz, Animal Legal Defense Fund, Washington, DC, for Plaintiff.

Alexander Penalta, Pro Hac Vice, Law Offices of Penalta & Associates PA, Edgewater, FL, Aric Hamilton Jarrett, Jason T. Morgan, Stoel Rives LLP, Seattle, WA, for Defendants.

ORDER DENYING MOTION TO DISMISS PUBLIC NUISANCE CLAIM

Ronald B. Leighton, United States District Judge

THIS MATTER is before the Court on Defendants' Motion to Dismiss Plaintiff's Public Nuisance Claim [Dkt. #22]. The Court has reviewed the materials filed for an against the motion. Oral argument is unnecessary. For the reasons below, the motion is DENIED .

I. FACTUAL BACKGROUND

This case alleges the mistreatment and unsafe captivity of numerous animals kept at a roadside zoo in Sequim, Washington known to the public as the Olympic Game Farm (OGF). Theories of liability include: 1) violation of the Endangered Species Act (ESA), 2) violation of the Washington State Animal Cruelty Laws ( RCW 16.52.205 ), and 3) maintaining a public nuisance ( RCW 7.48.130 ). Defendants choose to isolate the Public Nuisance claim in an attempt to prune this "Bonzai tree" with tweezers and fingernail clippers. The first claim is the ESA action which protects federally listed and specially protected species from killing, wounding, harming, injuring and harassing animals like: endangered gray wolves, endangered lions, endangered tigers, threatened brown bears and threatened Canada Lynx. The full panoply of remedies sought in this case are available under the first two theories. Nevertheless, the Court will analyze the attack on the third theory: public nuisance.

II. STANDARD OF REVIEW

Under Rule 12(c) of the Federal Rules of Civil Procedure, "a party may move for judgment on the pleadings" after the pleadings are closed "but early enough not to delay trial." A Rule 12(c) motion is "functionally identical" to a Rule 12(b)(6) motion to dismiss for failure to state a claim, and therefore the same legal standard applies. See Cafasso v. Gen. Dynamics C4 Sys., Inc. , 637 F.3d 1047, 1055 n. 4 (9th Cir. 2011). "All allegations of fact by the party opposing the motion are accepted as true, and are construed in the light most favorable to that party." Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church , 887 F.2d 228, 230 (9th Cir. 1989). Dismissal is improper except in extraordinary cases. Corsican Prods. v. Pitchess , 338 F.2d 441, 442 (9th Cir. 1964).

When considering a Rule 12 motion, the Court must determine whether the plaintiff has alleged sufficient facts to state a claim which is "plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible if the plaintiff has pled "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). The court "accepts the well-pleaded factual allegations of the complaint as true and construe them in the light most favorable to plaintiffs." OSU Student Alliance v. Ray , 699 F.3d 1053, 1061 (9th Cir. 2012). The plaintiff must provide more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," but need not provide detailed factual allegations. Twombly , 550 U.S. at 555, 127 S.Ct. 1955. 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 569, n. 13, 127 S.Ct. 1955. Plaintiff's allegations need only amount to more than "sheer possibility." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

"[A]ll claims at the pleading stage ... require[ ] development." OSU Student Alliance , 699 F.3d at 1077. For this reason, "[t]he plaintiff's failure to prove the case on the pleadings [would] not warrant dismissal." Id. at 1078. As the Ninth Circuit has explained, "All that matters at this stage is that the allegations nudge this inference ‘across the line from conceivable to plausible.’ " Id. (quoting Iqbal , 556 U.S. at 680, 129 S.Ct. at 1937 ). When the allegations in the complaint are plausible, "it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id. Applied recently, the Supreme Court held that where plaintiffs state "simply, concisely, and directly events that, they alleged, entitled them to damages from the city" plaintiffs had "informed the city of the factual basis for their complaint" and were "required to do no more to stave off threshold dismissal for want of an adequate statement of their claim." Johnson v. City of Shelby, Miss. , 574 U.S. 10, 135 S. Ct. 346, 347, 190 L.Ed.2d 309 (2014) (per curiam ) (reversing dismissal of suit and citing Fed. R. Civ. P. 8(a)(2) and (3), (d)(1), (e) ).

As explained below, accepting all facts alleged by Plaintiff as true and provable, Animal Legal Defense Fund (ALDF) has stated a claim for public nuisance on the face of its Complaint.

III. DISCUSSION

A. Public Nuisance in Washington.

Washington has codified the requirements for a nuisance action. Washington defines nuisance as "unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others ... or in any way renders other persons insecure in life, or in the use of property." Wash. Rev. Code § 7.48.120. Washington's nuisance statute also distinguishes public nuisances from private nuisances. A public nuisance is defined as "one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal." Wash. Rev. Code § 7.48.130 ; cf. Wash. Rev. Code § 7.48.150 (defining private nuisance as any nuisance that is not included in the definition of a public nuisance).

Washington's nuisance statute enumerates nine specific prohibited public nuisances: (1) depositing an animal carcass or entrails in a public area; (2) depositing an animal carcass in a watercourse, stream, pond, or public highway; (3) obstructing a river or harbor; (4) obstructing a public highway or municipal transit vehicle; (5) manufacturing gun powder; (6) establishing powder magazines near towns or dwellings; (7) creating obnoxious exhalations or smells dangerous to public health; (8) illegally selling intoxicating liquors; and (9) failing to cover or fence off excavated wells, septic tanks, or cesspools. See Wash. Rev. Code § 7.48.140 ; see also 6A Washington Practice: Washington Pattern Jury Instructions – Civil, WPI 380.02, Westlaw (6th ed., database updated Dec. 2017). Although Washington courts have allowed other actions or inactions to form the basis of a public nuisance claim, this enumerated list is instructive because it confirms the legislature was conforming public nuisance to accepted and known public threats. See, e.g., Kitsap County v. Kitsap Rifle & Revolver Club , 184 Wash.App. 252, 337 P.3d 328, 343 (2014) (operation of a shooting range without adequate facilities to confine bullets to the property constituted a public nuisance). Furthermore, the Washington legislature has expressed disfavor for nuisance claims that target farm operations, and expressed its intent that agricultural activities, including livestock management, conducted on farmland "be protected from nuisance lawsuits," and that such practices are presumed not to be a nuisance. Wash Rev. Code. §§ 7.48.300, .305. This zoo is no "farm."

Washington also limits the individuals who may file a public nuisance action. Generally, a nuisance claim can be brought by "any person whose property is, or whose patrons or employees are, injuriously affected or whose personal enjoyment is lessened by the nuisance." Wash. Rev. Code § 7.48.020. But in the case of a public nuisance , a person may only maintain a civil action if the nuisance is also "specially injurious to himself or herself but not otherwise." Wash. Rev. Code § 7.48.210. The Washington Supreme Court "treat[s] ‘specially injurious’ harms needed for public nuisance claims the same as ‘specific and perceptible’ ‘injuries in fact’ needed for noneconomic claims." Chelan Basin Conservancy v. GBI Holding Co. , 190 Wash.2d 249, 413 P.3d 549, 561 (2018). Moreover, for a private party to bring a public nuisance claim, the plaintiff must show special injury that is distinct from what has been suffered by the general public. See , e.g., Sound Mind & Body, Inc. v. City of Seattle , 122 Wash. App. 1074 (table), 2004 WL 1814330, at *2 (2004) (unpublished opinion) (holding that plaintiff's alleged injuries were not different from those suffered by the general public). If a private party cannot show specific injury over and above the injury suffered by the general public, the nuisance can only be abated by public authorities. Lampa v. Graham , 179 Wash. 184, 36 P.2d 543, 544 (1934).

OGF contends that ALDF is not entitled to maintain a nuisance action because it has not alleged facts showing that it has suffered a "special injury" as part of its community or neighborhood. RCW 7.48.210 ("A private person may maintain a civil action for a public nuisance, if it is specially injurious to himself or herself but not otherwise."). Reviewing this provision last year, the Washington Supreme Court explained that the special injury requirement "is not a particularly high bar," and "[i]njury to the aesthetic...