Roane County, Tennessee v. The Tennessee Valley Authority (TV1)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

ROANE COUNTY, TENNESSEE, )

THE CITY OF KINGSTON, )

TENNESSEE, and )

THE CITY OF HARRIMAN, TENNESSEE, )

)

Plaintiffs, )

)

v. ) No.: 3:19-cv-206-TAV-HBG

)

JACOBS ENGINEERING GROUP, INC., and )

THE TENNESSEE VALLEY AUTHORITY, )

)

Defendants. )

MEMORANDUM OPINION

Plaintiffs Roane County, Tennessee, and the cities of Harriman, Tennessee, and

Kingston, Tennessee, (collectively, “Plaintiffs”) filed this action seeking damages related

to a 2008 ash waste containment structure failure that released toxic waste onto Plaintiffs’

properties. Now before the Court are Plaintiffs’ motions to preserve evidence, [Doc. 47],

for an extension of time to file a reply [Doc. 55], and to amend their complaint [Doc. 59];

and Defendants’ motions to dismiss [Docs. 62, 64. For the reasons set forth below,

Defendants’ motions to dismiss [Docs. 62, 64] will be GRANTED, and all other motions

[Docs. 47, 55, 59] will be DENIED AS MOOT.

I. ALLEGATIONS

On December 22, 2008, an ash waste containment structure owned and operated by

Defendant Tennessee Valley Authority (“TVA”) at its plant near Kingston, Tennessee,

failed and released more than one billion gallons of sludge and water into the nearby

environment [Doc. 59-1 ¶ 39].1 The release of toxic ash sludge from the containment

structure created a “tidal wave” of water, toxic ash sludge, and fly ash that destroyed

several homes, covered local roads and a railroad spur, contaminated drinking wells and

municipal water intakes, damaged water lines, killed fish and other flora and fauna, and

ruptured a major gas line in a neighborhood adjacent to the plant [Id., ¶¶ 1, 40]. Defendant

Jacobs Engineering Group, Inc. (“Jacobs”) was the primary contractor in charge of cleanup

[Id., ¶ 79]. Plaintiffs have also discovered that the plant continues to leak arsenic, asbestos,

and radiation into their groundwater [Id., ¶¶ 1, 25, 64, 74, 133, 137, 155, 176, 178, 239,

265, 271, 294, 336, 351, 369].

Plaintiffs assert seven causes of action against Defendants, seeking to recover

damages stemming from Defendants’ roles in the containment and cleanup failures:

(1) promissory estoppel; (2) fraudulent concealment; (3) intentional or reckless failure to

warn; (4) negligence; (5) negligence per se; (6) temporary public nuisance; and

(7) offensive non-mutual collateral estoppel [Id., pp. 40-76]. Defendants move under Fed.

R. Civ. P. 12(b)(6) to dismiss all claims on various grounds [Docs. 63, 65].

II. STANDARD OF REVIEW

Rule 8(a) of the Federal Rules of Civil Procedure sets out a liberal notice pleading

standard. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002). Thus, a complaint filed

in federal court need only contain “‘a short and plain statement of the claim showing that

1 Defendants’ motions to dismiss are premised on the substance of Plaintiffs’ Proposed

Amended Complaint, which is why that document is referred to here for its substance [Docs. 63,

65].

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the pleader is entitled to relief,’ in order to ‘give the [opposing party] fair notice of what

the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual

allegations are not required, but a party’s “obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do[.]” Id. (internal quotation marks and

alterations omitted). “Conclusory allegations or legal conclusions masquerading as factual

allegations will not suffice,” and “a complaint containing a statement of facts that merely

creates a suspicion of a legally cognizable right of action is insufficient.” Bishop v. Lucent

Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (emphasis added).

In deciding a Rule 12(b)(6) motion, a court must determine whether the complaint

contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550

U.S. at 570; accord Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). “Determining whether a complaint states a plausible

claim for relief will [ultimately] . . . be a context-specific task that requires [the Court] to

draw on its judicial experience and common sense.” Id. at 679. In conducting this inquiry,

the Court “must construe the complaint in a light most favorable to plaintiffs, accept all

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well-pled factual allegations as true, and determine whether plaintiffs undoubtedly can

prove no set of facts in support of those allegations that would entitle them to relief.”

Bishop, 520 F.3d at 519.

III. ANALYSIS

A. Standing

Defendants’ first argument for the dismissal of this case is that Plaintiffs do not

possess the requisite constitutional standing to maintain this action [Doc. 63 pp. 14-18].

Defendants argument here relates to a previous order from this Court on this issue. In their

previous complaint, Plaintiffs attempted to assert this action on behalf of their citizens

[Doc. 49 p. 3]. This Court, however, explained that, to maintain constitutional standing,

Plaintiffs must assert claims for injuries directly affecting them, not “claims based on

injuries to their citizens” [Doc. 49 p. 2-7]. Plaintiffs have since focused their Amended

Complaint on the injuries directly affecting them. Specifically, Plaintiffs assert that the

2008 toxic spill on Plaintiffs’ properties and Defendants’ subsequent actions during the

cleanup and response process have caused Plaintiffs’ properties to have been “negatively

stigmatized” and devalued and has led to lost tax revenue and environmental response,

healthcare, and emergency response costs [Doc. 59-1 ¶¶ 1, 61-65, 69, 99, 130, 166-169,

172, 177-79, 222, 230, 289, 306, 348, p. 75]. The Court concludes that, based on the

allegations in the proposed amended complaint, Plaintiffs have articulated sufficient

factual matter to establish constitutional standing.

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B. Individual Causes of Action

Defendants argue for the dismissal of all of Plaintiffs’ claims. The parties agree that

Tennessee state law governs the substance of Plaintiffs’ claims [Doc. 63 p. 21; Doc. 65

p. 17; Doc. 80 p. 16; Doc. 81 pp. 9-10].

1. Promissory Estoppel

Plaintiffs’ first claim for relief is for promissory estoppel [Doc. 59-1 ¶¶ 211-40].2

A sister court outlined the doctrine of promissory estoppel under Tennessee law:

A claim for promissory estoppel in Tennessee, also known as “detrimental

reliance,” has three elements: “(1) a party made a promise which the

promisor should reasonably have expected to induce the action or

forbearance of the promise; (2) the promise does induce that action or

forbearance; and (3) injustice can be avoided only by enforcing the promise.”

The key element is, of course, the promise. Tennessee does not liberally

apply the doctrine of promissory estoppel and limits its application to

exceptional cases “verging on actual fraud.”

Doe v. Belmont Univ., 334 F. Supp. 3d 877, 901 (M.D. Tenn. 2018) (internal citations

omitted). The promise must be “unambiguous and not unenforceably vague . . . .” Chavez

v. Broadway Elec. Serv. Corp., 245 S.W.3d 398, 404 (Tenn. Ct. App. 2007) (citations

omitted). Because a claim of promissory estoppel under Tennessee law requires a showing

that the defendant’s actions are “akin to fraud,” the heightened pleading standard of Federal

Rule of Civil Procedure 9(b), which relates to pleading fraud, applies. See LeBlanc v. Bank

of America, N.A., No. 2:13-cv-02001-JPM-tmp, 2013 WL 3146829, at *16 (W.D. Tenn.

June 18, 2013) (dismissing a promissory estoppel claim under Tennessee law on the ground

2 To reiterate, Defendants have treated the proposed Amended Complaint as the operative

complaint in this case, so the Court will do the same.

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that plaintiff had not asserted when the alleged promise was made or who specifically made

the alleged promise).

As pleaded, Plaintiffs’ promissory estoppel claim suffers from numerous

deficiencies. Plaintiffs have identified several general promises with no specific details

regarding those promises [Doc. 59-1 ¶¶ 211-40]. Specifically, the only “promises”

Plaintiffs have alleged Defendants made are: (1) TVA’s truthful disclosure of information;

(2) that “fly ash” (a byproduct of the burning of coal) is safe, was being tested

appropriately, was adequately managed, and was being appropriately remediated upon its

spill; and (3) that TVA would pay the medical expenses of those people affected by the

spill [Doc. 59-1 ¶¶ 48, 163-64, 166, 212, 222, 224, 232].

Beginning with the last purported promise, Plaintiffs do not identify the “time [and]

place” of this statement. See Conopco, 2017 WL 52606, at *6 (internal quotation marks

omitted) (quoting Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 (6th Cir. 2005));

see also LeBlanc v. Bank of Am., N.A., No. 2:13-CV-02001-JPM-TMP, 2013 WL 3146829,

at *16 (W.D. Tenn. June 18, 2013) (“In his Complaint, [Plaintiff] does not assert when the

alleged promise was made . . . as required by Rule 9(b) . . . . Accordingly, [Plaintiff’s state

law] promissory-estoppel claim is DISMISSED . . . .” (internal citations omitted)).

Plaintiffs also do not identify to whom this purported promise was made, i.e., whether the

representation was made to Plaintiffs or its citizens. Finally, Plaintiffs do not articulate

what actions they undertook or did not undertake specifically because of TVA’s

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representation that it would pay for Plaintiffs’ citizens medical expenses stemming from

the spill.

As for the remaining alleged promises by Defendants, Plaintiffs’ assertions suffer

from similar defects. Defendants’ purported promises—to plaintiffs—of “truthful

disclosure of information[,]” “safe” fly ash, “appropriate” fly ash testing, “adequately

managed” fly ash, and whatever unspecified representations about the remediation process

are ambiguous and unenforceably vague [Doc. 59-1 ¶¶ 211-40]. These purported

representations by Defendants are akin to the representations at issue in Chavez that the

Tennessee Court of Appeals there found to be ambiguous, vague, and nonspecific: “[T]hat

the Oak Ridge construction market was strong and solid, that there was years of work to

be done, that overtime would be plentiful, and that anyone with a security clearance would

have no difficulty finding work in Oak Ridge.” Chavez, 235 S.W.3d at 405 (emphasis

added) (internal quotation marks omitted); see also Amacher v. Brown-Forman Corp., 826

S.W.2d 480, 482 (Tenn. Ct. App. 1991) (promise that plaintiff “w[as] to have a continuing

supply of thick stillage” was unenforceably vague); compare to BiotronX, LLC v. Tech One

Biomedical, LLC, No. 3:19-CV-01035, 2020 WL 3047637, at *6 (M.D. Tenn. June 8,

2020) (defendant’s promise to purchase plaintiff’s inventory if plaintiff would immediately

begin to disassemble inventory and dismantle certain intact instruments held to be

enforceable). Simply put, “a representation differs from a promise.” Builders Insulation

of Tenn., LLC v. S. Energy Sols., No. 2:17-CV-02668-TLP-TMP, 2018 WL 5539805, at *3

(W.D. Tenn. Oct. 29, 2018) (citations omitted).

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Plaintiffs have failed to plausibly allege a promissory estoppel claim against

Defendants, so Plaintiffs’ First Claim for Relief in their Amended Complaint will be

dismissed.

2. Fraudulent Concealment

Plaintiffs’ second claim for relief is for fraudulent concealment [Doc. 59-1

¶¶ 241-65]. Under Tennessee law:

The tort of “fraudulent concealment” is another claim that falls under the

umbrella of “fraud.” This tort, also known as ‘constructive fraud,’ is

committed when “a party who has a duty to disclose a known fact or

condition fails to do so, and another party reasonably relies upon the resulting

misrepresentation, thereby suffering injury.”

Roopchan v. ADT Sec. Sys., Inc., 781 F. Supp. 2d 636, 652 (E.D. Tenn. 2011) (citations

omitted). The two facts that Plaintiffs allege Defendant concealed from them are: (1) the

general harmfulness of fly ash and the threat that it posed to the surrounding communities;

and (2) the fact that radiation and arsenic have recently begun leaking into Plaintiffs’

groundwater [Doc. 59-1 ¶¶ 241-65].

Regarding the first alleged fraudulently concealed fact, Plaintiffs themselves have

acknowledged that “TVA admitted through the EPA Administrative Order that fly ash

produced by the TVA facility in Kingston, Tennessee constituted an ‘imminent danger to

human health’ on or about May 11, 2009” [Id., ¶ 353]. Plaintiffs have also termed the 2008

spill the “largest environmental disaster in United States history” and admit that “publicity”

surrounded it [Id., ¶ 65]. Importantly, “a party does not have a duty to disclose a material

fact where ordinary diligence would have revealed the undisclosed fact.” Odom v. Oliver,

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310 S.W.3d 344, 350 (Tenn. Ct. App. 2009) (citations omitted). Here, Plaintiffs, as

governmental bodies, cannot reasonably contend that ordinary diligence and inquiry into

“the largest environmental disaster in United States history” would not have revealed the

dangerous effects of fly ash, one of the toxic chemicals released by the spill, and the threat

it posed to Plaintiffs’ communities, particularly in light of a six-year federal public

investigation into, and cleanup of, the 2008 spill which was conducted between 2009 and

2015.

Seemingly acknowledging the deficiency of such an argument, Plaintiffs focus their

allegations on their lack of knowledge as to the extent of the negative effects of fly ash and

how this further knowledge would have caused Plaintiffs to seek “economic and medical

assessments to appropriately deal with the original ash spill . . . .” [Doc. 59-1 ¶¶ 259-60].

However, “the statute of limitations on a tort action commences when plaintiff knew or in

the exercise of reasonable diligence, should have known, that an actionable injury has

occurred. . . . Knowledge that an actionable injury has occurred does not require absolute

knowledge of the particulars of the injury.” Wyatt v. A-Best, Co., Inc., 910 S.W.2d 851,

857-58 (Tenn. 1995). “There is no dispute that [a] three-year statute of limitations . . .

applies to plaintiffs’ constructive fraud claim. The statute begins to run ‘when a plaintiff

discovers, or in the exercise of reasonable care and diligence, should have discovered his

injury and the cause thereof.’” Hira v. N.Y. Life Ins. Co., 144 F. Supp. 3d 977, 980

(E.D. Tenn. 2015) (internal citations omitted). Through the exercise of reasonable

diligence, Plaintiffs would have understood as early as mid-2009 that fly ash was

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dangerous to their constituents’ health and that such danger would cause Plaintiffs to

expend resources to assist in their citizens’ economic and medical recovery from the 2008

toxic spill. Cf. Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013)

(dismissal on a motion under Rule 12(b)(6) is warranted if defendant meets its burden of

showing that the allegations in the complaint affirmatively show that the claim is

time-barred). For this reason, Plaintiffs’ fraudulent concealment claim is barred by the

statute of limitations.

Moreover, to the extent that Plaintiffs’ fraudulent concealment claim is predicated

on the recent leaks of radiation and arsenic into their groundwater, Plaintiffs herein have

not pleaded sufficient allegations establishing a duty on Defendants’ part to reveal these

leaks for purposes of such claim. The Sixth Circuit in Saltire Indus., Inc. v. Waller,

Lansden, Dortch & Davis, PLLC, 491 F.3d 522 (6th Cir. 2007), outlined the duty element

of a fraudulent concealment claim under Tennessee law:

The Tennessee Supreme Court has explained there can be no tort of

fraudulent concealment absent a duty to disclose . . . . Under Tennessee law,

the duty to disclose arises in only three scenarios:

1. Where there is a previous definite fiduciary relation between

the parties.

2. Where it appears one or each of the parties to [a] contract

expressly reposes a trust and confidence in the other.

3. Where [a] contract or transaction is intrinsically fiduciary and

calls for perfect good faith. The contract of insurance is an

example of this class.

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Id. at 527-28 (internal citations omitted). Plaintiffs’ only attempts to establish a duty on

the part of Defendants to specifically disclose the leaking arsenic and radiation is to allege

that: (1) Plaintiffs were “direct intended third party beneficiaries” to the cleanup contract

between TVA and Jacobs; and (2) Defendants were required by law and the EPA to

disclose such leaks [Doc. 59-1 ¶ 242]. These conclusory legal assertions, however, are

unadorned with any further factual enhancement necessary to survive even the liberal

pleading standard of Fed. R. Civ. P. 8(a)(2). Plaintiffs have not offered any factual

allegations to support their claim that they were intended beneficiaries of the cleanup

contract between the TVA and Jacobs. Cf. Owner-Operator Indep. Drivers Ass’n, Inc. v.

Concord EFS, Inc., 59 S.W.3d 63, 68-72 (Tenn. 2001) (outlining difference between

intended beneficiary of a contract that “may enforce a contract” and an incidental

beneficiary that “acquires no right to enforce the contract.” (citations omitted)).

Nor have Plaintiffs herein pointed to any specific language from any law or EPA

mandate establishing a duty on the part of Defendants to disclose the leaks—Plaintiffs

make only the conclusory assertion that these sources mandate such disclosure. See Wenzel

v. Knight, No. 3:14-CV-432, 2015 WL 3466863, at *12 (E.D. Va. June 1, 2015) (a legal

conclusion adds no factual basis to support a claim for purposes of a Rule 12(b)(6) motion

to dismiss) Plaintiffs’ Second Claim for Relief of their Amended Complaint will therefore

be dismissed, as this claim is barred by the statute of limitations and has not been properly

pleaded.

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3. Intentional or Reckless Failure to Warn

Plaintiffs’ third claim for relief is a claim for “Intentional or Reckless Failure to

Warn” and alleges that Defendants should be liable for failing to warn the Plaintiffs (1) of

the dangers of fly ash, and (2) of the more recent toxic leaks into Plaintiffs’ groundwater

[Doc. 59-1 ¶¶ 266-71]. As explained in the preceding section, Plaintiffs were either aware

of or should have been aware of the dangers of fly ash as early as mid-2009, so Plaintiffs’

third claim in this regard is barred by the statute of limitations. See T.C.A. § 28-3-105

(“The following actions shall be commenced within three (3) years from the accruing of

the cause of action: (1) Actions for injuries to personal or real property . . . .”). As for

Plaintiffs’ allegation that Defendants intentionally or recklessly failed to warn Plaintiffs of

more recent toxic leaks into Plaintiffs’ groundwater, to the extent that Plaintiffs attempt to

plead an “intentional failure to warn” claim on these facts, the Court fails to see how such

a claim is different from Plaintiffs’ fraudulent concealment claim that has been dismissed

for Plaintiffs’ failure to identify a duty of disclosure on Defendants’ part. See Saltire,

491 F.3d at 527-28; see also Roopchan, 781 F. Supp. 2d at 652 (“[F]raudulent

concealment’ . . . is committed when a party who has a duty to disclose a known fact or

condition fails to do so . . . .” (internal quotation marks omitted)).

Regarding Plaintiffs’ reckless failure to warn claim based on the recent toxic leaks

into Plaintiffs’ groundwater, Plaintiffs’ own factual allegations in their Amended

Complaint indicate that leaks and problems with the plant at issue have existed and have

been ongoing since 2007 [Doc. 59-1 ¶¶ 25, 53-54, 56, 59, 64-65, 168, 260, 294, 336].

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Moreover, Plaintiffs attribute the leaks to the 2009 to 2015 remediation process that

attempted to remedy the 2008 spill affecting Plaintiffs’ properties [Id., ¶¶ 74, 133, 336].

Had Plaintiffs exercised diligence in monitoring the spill’s remediation process between

2009 and 2015 (for what Plaintiffs themselves call “the largest environmental disaster in

United States history”), or engaged in post-remediation monitoring of their properties and

groundwater, Plaintiffs would have discovered the effects of the allegedly deficient

remediation process far earlier than they did. See 16630 Southfield Ltd. P’ship v. Flagstar

Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (“[T]he sufficiency of a complaint turns

on its ‘factual content’ requiring the plaintiff to plead enough ‘factual matter’ to raise a

‘plausible’ inference of wrongdoing. The plausibility of an inference depends on a host of

considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.’” (internal citations omitted)).

Because Plaintiffs, essentially by their own admission, would have discovered

Defendants’ alleged leakage of toxic chemicals into their groundwater since, at the latest,

at the conclusion of the remediation process in 2015, had Plaintiffs exercised reasonable

diligence in monitoring their own groundwater, Plaintiffs’ reckless failure to warn claim is

barred by the statute of limitations. See Wyatt, 910 S.W.2d at 857 (“Knowledge that an

actionable injury has occurred does not require absolute knowledge of the particulars of

the injury.”); see also Lutz, 717 F.3d at 464 (dismissal on a motion under Rule 12(b)(6) is

warranted if defendant meet its burden of showing that the allegations in the complaint

affirmatively show that the claim is time-barred). Plaintiffs’ Third Claim for Relief in their

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Amended Complaint will therefore be dismissed, as Plaintiffs’ intentional failure to warn

claim is no different from its fraudulent concealment claim which has been dismissed and

Plaintiffs’ reckless failure to warn claim is barred by the statute of limitations.

4. Negligence

Plaintiffs’ fourth claim for relief is for negligence [Doc. 59-1 ¶¶ 272-307]. As the

Tennessee Supreme Court has outlined:

In order to establish a prima facie claim of negligence, basically defined as

the failure to exercise reasonable care, a plaintiff must establish the following

essential elements: “(1) a duty of care owed by defendant to plaintiff;

(2) conduct below the applicable standard of care that amounts to a breach

of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or

legal, cause.”

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (citations omitted).

Review of Plaintiffs’ negligence allegations reflects that Plaintiffs are attempting to recoup

for losses attributable to the 2008 spill that they either knew about or should have known

about through the exercise of reasonable diligence [Doc. 59-1 ¶¶ 272-307]. Plaintiffs do

not dispute that their negligence claim is subject to a three-year statute of limitations. See

T.C.A. § 28-3-105. Seemingly recognizing this, Plaintiffs instead argue that the toxic leaks

into their groundwater occurring between 2017 and 2019 allow them to pursue a negligence

claim [Doc. 80 pp. 15-19; Doc. 59-1 ¶¶ 1, 25, 64, 74, 133, 137, 155, 176, 178, 239, 265,

271, 294, 336, 351, 369]. Plaintiffs’ negligence claim in this regard, however, is barred by

the statute of limitations for the same reasons that Plaintiffs’ reckless failure to warn claim

is barred on that ground. Had Plaintiffs, through their own admission that the remediation

process between 2009 and 2015 led to ongoing toxic leaks since that time, exercised

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diligence in monitoring that remediation process, or engaged in post-remediation

monitoring of their properties and groundwater, Plaintiffs would have discovered the toxic

leaks into their groundwater far earlier than they did. Accordingly, Plaintiffs’ Fourth Claim

for Relief in their Amended Complaint will be dismissed, as it is barred by the statute of

limitations.

5. Negligence Per Se

Plaintiffs’ fifth claim for relief is for negligence per se [Doc. 59-1 ¶¶ 308-26]. Under

Tennessee law, a plaintiff must establish three elements to recover on the basis of

negligence per se: (1) defendant violated a statute or ordinance which imposes a duty or

prohibits an act for the benefit of a person or the public; (2) the injured party was within

the class of persons whom the legislative body intended to benefit and protect; and (3) the

negligence was the proximate cause of the injury. Glass v. Nw. Airlines, Inc., 761 F. Supp.

2d 734, 746 (W.D. Tenn. 2011) (citations omitted); Smith v. Owen, 841 S.W.2d 828, 831

(Tenn. Ct. App. 1992). Plaintiffs have made no attempt to expound on their conclusory

assertions that Defendants violated the laundry list of the cited statutes and regulations;

instead, Plaintiffs simply list roughly 30 statutes and regulations and assert that Defendants

violated those statutes and regulations [Doc. 59-1 ¶¶ 308-26]. Furthermore, Plaintiffs have

pleaded no facts asserting that the statutes and regulations that they allege Defendants

violated are meant to benefit and protect them. Plaintiffs’ negligence per se claim cannot

be viewed as giving Defendants fair notice of what Plaintiffs’ allegations are with regard

to Defendants’ alleged violations of the list of statutes and regulations. See Weiland v.

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Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015) (“The unifying

characteristic of all types of shotgun pleadings is that they fail to one degree or another,

and in one way or another, to give the defendants adequate notice of the claims against

them and the grounds upon which each claim rests.”); Bickerstaff Clay Prods. Co., Inc. v.

Harris Cty. By & Through Bd. of Comm’rs, 89 F.3d 1481, 1484 n.4 (11th Cir. 1996) (“The

complaint is a typical shotgun pleading, in that some of the counts present more than one

discrete claim for relief. Moreover, in some instances one cannot discern, with respect to

a given claim for relief, the substantive rule giving rise to the claim.” (internal citation

omitted)); Flayter v. Wis. Dep’t of Corr., 16 F. App’x 507, 508 (7th Cir. 2001) (“A prolix

and confusing complaint should be dismissed because it makes it difficult for the defendant

to file a responsive pleading and for the court to conduct orderly litigation.” (citation

omitted)).

Plaintiffs’ Fifth Claim for Relief in their Amended Complaint will therefore be

dismissed, as Plaintiffs’ claim in this regard is insufficiently pleaded.

6. Temporary Public Nuisance

Plaintiffs’ sixth claim for relief is for temporary public nuisance [Doc. 59-1

¶¶ 327-48]. Plaintiffs, however, have not properly alleged an adequate ground for relief in

this regard.

Plaintiffs begin this claim by identifying T.C.A. §§ 29-3-101(b) and 110 as the basis

for their temporary public nuisance claim. T.C.A. § 29-3-101(b) states:

Any person who uses, occupies, establishes or conducts a nuisance, or aids

or abets therein, and the owner, agent or lessee of any interest in any such

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nuisance, together with the persons employed in or in control of any such

nuisance by any such owner, agent or lessee, is guilty of maintain a nuisance

and such nuisance shall be abated as provided hereinafter.

Plaintiffs appear to be seeking a statutory remedy provided by the Tennessee General

Assembly allowing them to abate the purported nuisance created by Defendants and

receive the “costs of public services required to abate or manage the nuisance, including,

but not limited to, law enforcement costs, if any, caused by the public nuisance.” T.C.A.

§ 29-3-110(c). The term “nuisance,” however, for the purpose of exercising that remedy,

is defined to include:

(A) Any place in or upon which lewdness, prostitution, promotion of

prostitution, patronizing prostitution, unlawful sale of intoxicating liquors,

unlawful sale of any regulated legend drug, narcotic, other controlled

substance analogue, any sale or possession with intent to sell of drug

paraphernalia, as defined by § 39-17-402, unlawful gambling, any sale,

exhibition or possession of any material determined to be obscene or

pornographic with intent to exhibit, sell, deliver or distribute matter or

materials[,] . . . quarreling, drunkenness, fighting, breaches of the peace are

carried on or permitted, and personal property, contents, furniture, fixtures,

equipment and stock used in or in connection with the conducting and

maintaining any such place for any such purposes;

(B) A criminal gang . . . that regularly engages in gang related

conduct. . . .; or

(C) Any place in or upon which a person knowingly takes, by defrauding, or

conspiring or colluding with, the recipient of public assistance benefits

funded in whole or in part by the federal government or state of Tennessee,

any part of such benefits knowing the person is not authorized or entitled by

law to receive the portion of benefits taken . . . .

T.C.A. § 29-3-101(a)(2).

Instead of identifying the statutory definition of nuisance they rely upon for their

statutory public nuisance claim, however, Plaintiffs cite to the common law definition of

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nuisance [Doc. 59-1 ¶ 336; Doc. 80 p. 25; Doc. 81 pp. 21-22]. Per T.C.A. § 29-3-101(a)(2),

the remedies provided by T.C.A. § 29-3-110(c) are only available if a plaintiff pleads a

nuisance as defined by Tennessee statutes, not the common law. Plaintiffs do not identify

any statutory definition of nuisance that allows them to maintain their statutory nuisance

claim. Additionally, Plaintiffs point to no authority for the common law definition of

nuisance to support their statutory nuisance claim. Plaintiffs cannot piecemeal together

elements of separate and distinct causes of action to form one cause of action. Although

Plaintiffs are free to plead alternative causes of action, their Amended Complaint does not

provide the requisite fair notice to Defendants that this is what they have done. See Zuanich

v. Hankook Tire Am. Corp., No. 3:18-CV-159-WKW, 2018 WL 6709466, at *2 (M.D. Ala.

Dec. 20, 2018) (“‘Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are

often disparagingly referred to as ‘shotgun pleadings . . . .’ [One] type[] of shotgun

pleading[] . . . ‘commits the sin of not separating into a different count each cause of action

or claim for relief . . . .’” (quoting Weiland, 792 F.3d at 1320-23)).

Plaintiffs’ Sixth Claim for Relief in their Amended Complaint will therefore be

dismissed, as Plaintiffs’ claim in this regard suffers from pleading deficiencies.

7. Offensive Non-Mutual Collateral Estoppel

Plaintiffs’ seventh claim for relief asserts offensive non-mutual collateral estoppel

[Doc. 59-1 ¶¶ 349-75]. Although Tennessee’s highest court has referred to the theory of

collateral estoppel as a “claim[,]” that same court has identified that collateral estoppel is

simply a legal tool that allows a party to prevail on a cause of action and is not a legitimate

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cause of action in and of itself. Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102, 107 (Tenn.

2016). Specifically, the Tennessee Supreme Court has explained that “[c]ollateral estoppel

is an issue-preclusion doctrine developed by the courts[,]”and

Res judicata and collateral estoppel are related doctrines. Res judicial bars a

second suit between the same parties or their privies on the same cause of

action with respect to all issues which were or could have been litigated in

the former suit. Collateral estoppel bars a second suit between the same

parties and their privies on a different cause of action only as to issues which

were actually litigated and determined in the former suit.

Id. at 107, n.6; see generally Lawrence A. Pivnick, Tennessee Circuit Court Practice,

§ 27:14 (Dec. 2019 update) (outlining collateral estoppel doctrine). In other words, there

is no such thing as a substantive claim for offensive non-mutual collateral estoppel; rather,

collateral estoppel is a tool Plaintiffs may use to establish the conclusiveness of issues

related to legitimate substantive causes of action. Plaintiffs’ Seventh Claim for Relief in

their Amended Complaint will therefore be dismissed, as there is no such thing as a

substantive cause of action for offensive non-mutual collateral estoppel under Tennessee

law.

C. Remaining Matters

Because all of Plaintiffs’ claims will be dismissed, all remaining motions [Docs. 47,

55, 59] will be denied as they are moot. The Court also notes that, because the core basis

for the dismissal of all of Plaintiffs’ claims is a deficient pleading, all of Plaintiffs’ claims

here will be dismissed without prejudice. See United States ex rel. Griffith v. Conn, 117 F.

Supp. 3d 961, 988 (E.D. Ky. 2015) (noting that dismissal without prejudice was proper

because the case involved numerous complex issues and theories and the opinion was the

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first time that the Court had detailed the deficiencies in the pleadings) (citing United States

ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 644 (6th Cir. 2003)).

IV. CONCLUSION

For the reasons set forth above, Defendants’ motions to dismiss [Docs. 62, 64] will

be GRANTED, and all other motions [Docs. 47, 55, 59] will be DENIED AS MOOT.

All of Plaintiffs’ claims will be DISMISSED WITHOUT PREJUDICE. A separate

order will follow.

ENTER:

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

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