Adams v. Adient US LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

______________________________________________________________________________

CHARLES E. ADAMS, et al.,

Plaintiffs,

v. Case No. 1:20-cv-01197-JTF-jay

ADIENT US LLC; JOHNSON CONTROLS, INC.;

HOOVER UNIVERSAL, INC.;

MANUFACTURERS INDUSTRIAL GROUP, L.L.C.;

JOHN ZARDIS; ANDRE GIST;

MANUFACTURERS INDUSTRIAL GROUP, LLC;

MIG STEEL FABRICATION, LLC

F/K/A MIG CONSTRUCTION SERVICES, LLC;

MIG ENTERPRISES, LLC;

FICTITIOUS DEFENDANTS A THROUGH Z,

Defendants.

_____________________________________________

MANUFACTURERS INDUSTRIAL GROUP L.L.C.,

JOHN ZARIDS, and ANDRE GIST,

Cross-Plaintiffs,

v.

ADIENT US LLC and JOHNSON CONTROLS, INC.,

Cross-Defendants,

_____________________________________________

MANUFACTURERS INDUSTRIAL GROUP, L.L.C.,

JOHN ZARDIS, and ANDRE GIST,

Third-Party Plaintiffs,

v.

HOOVER UNIVERSAL, INC.,

Third-Party Defendants.

______________________________________________________________________________

ORDER DENYING JCI DEFENDANTS’ MOTION TO DISMISS THE SECOND

AMENDED COMPLAINT IN PART, GRANTING JCI DEFENDANTS’ MOTION TO

DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT AS TO PLAINTIFFS’

NEGLIGENCE PER SE CLAIMS AND AS TO PLAINTIFFS WHO SERVE AS

BUSINESS ENTITIES IN COUNT 2 AND COUNT 3 OF THE NEGLIGENT AND

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS, AND DENYING

PLAINTIFFS’ ALTERNATIVE MOTION TO AMEND THEIR COMPLAINT

______________________________________________________________________________

Before the Court is Defendants Hoover Universal, Inc., Adient US LLC, and Johnson

Controls, Inc.’s (collectively, the “JCI Defendants”) Motion to Dismiss the Second Amended

Complaint (the “Motion”), filed on September 8, 2020. (ECF No. 6.) Plaintiffs Charles E. Adams,

et al (“Plaintiffs”) filed Plaintiffs’ Response to JCI Defendants’ Motion to Dismiss on February 8,

2021. (ECF No. 33.) Shortly thereafter, Plaintiffs filed an Alternative Motion to Amend their

Complaint along with a Memorandum in Support on March 3, 2021. (ECF Nos. 38 & 38-1.) JCI

Defendants’ Reply in Support of their Motion to Dismiss the Second Amended Complaint was

filed on March 8, 2021. (ECF No. 39.) JCI Defendants subsequently filed a Response in Opposition

to Plaintiffs’ Alternative Motion to Amend their Second Amended Complaint on March 17, 2021.

(ECF No. 40.) For the following reasons, JCI Defendants’ Motion to Dismiss the Second Amended

Complaint is DENIED in part and GRANTED in part. JCI Defendants’ Motion to Dismiss the

Second Amended Complaint is GRANTED as to Plaintiffs’ Negligence Per Se Claims, as well as

Plaintiffs who serve as business entities in Count 2 and Count 3 of the Negligent and Intentional

Infliction of Emotional Distress claims. Furthermore, Plaintiffs’ Alternative Motion to Amend

their Complaint is DENIED.

FACTUAL BACKGROUND

This case arises out of injuries allegedly sustained from JCI Defendants’ past and

continuing improper storage, discharge release, and inadequate remediation of toxic chemicals as

a result of chemical releases and related conduct at an industrial facility located in Lexington,

Tennessee (the “Industrial Site”). (ECF No. 33.) Plaintiffs’ Second Amended Complaint alleges

the Manufacturers Industrial Group LLC1 (the “MIG”) owned or operated the Industrial Site

between December 2006 and October 2013. Defendants allegedly used and buried toxic chemicals

on the Industrial Site while manufacturing auto-parts. (Id.) The toxic chemicals include (1)

trichloroethylene (“TCE”); (2) tetrachloroethylene (“PCE”); cis-1,2-dichloroethylene, trans-1,2-

dichloroethylene, and 1,1-dichloroethylene. (Id.) The alleged contamination resulted in a toxic

plume in the groundwater under the surrounding neighborhood that grew from 0.26 miles in 2009

to 0.44 miles in 2012. (Id.) Plaintiffs consist of over 400 individuals and several entities who own

property or live near the Industrial Site and allegedly have been negatively affected by the

contamination. (Id.) JCI Defendants aver that Plaintiffs admit they cannot prove physical injury

from the contamination and have not identified any physical injury in required disclosures. (ECF

No. 6-3, 5.) However, Plaintiffs indicate that damages for mental anguish and anxiety are

continuing and cannot be quantified at this time. (Id.)

Essentially, Plaintiffs allege in the Second Amended Complaint that their water is unfit for

drinking and that chemicals are vaporizing and entering the airspace where they may be inhaled.

(ECF No. 6-2, ¶¶ 44-46.) The Second Amended Complaint acknowledges that Adient voluntarily

reported the released solvents to the Tennessee Department of Environment and Conservation

(“TDEC”) in 2007, shortly after they were discovered at the end of 2006, and promptly retained

Weston Solutions, Inc. (“Weston”) to investigate the matter and remediate. (Id.; ¶¶ 25-32.) Adient

voluntarily entered the Industrial Site into the State voluntary cleanup program in 2007 once the

contamination was discovered. (ECF No. 6-4, Exhibit C.) The Second Amended Complaint further

1 Manufacturers Industrial Group LLC was a Tennessee Liability Company that dissolved in August 2016.

alleges that Weston’s investigation through 2012 found that the groundwater was contaminated

with TCE, PCE, and TCE degradation products. (ECF No. 6-2, ¶ 33; See Comprehensive Remedial

Investigation and Interim Response Report, Johnson Controls Manufacturing Plant (July 2014)).

The remediation conducted on behalf of Adient was approved by TDEC and the Site

remains under TDEC oversight.2 (ECF No. 6-1, 11; ECF No. 6-2, ¶¶ 26-28, 43.) On August 26,

2018, TDEC concluded that the “groundwater plume, along with all pathways of concern (surface

soil, surface water, sediments, and vapor intrusion) has been fully evaluated and that based on

current data, none of these pathways pose an unacceptable risk to any known receptors.” (ECF

No. 6-5, Exhibit D.) Moreover, at TDEC’s request, the Tennessee Department of Health (“TDH”)

conducted a Health Consultation (“TDH Report”) on May 2, 2011, concluding that the chemicals

“PCE and TCE in addition to TCE’s breakdown will not harm the health of residents in homes

downgradient from the MIG facility or the plant employees.”3 (Id.) In addition, TDEC approved

an approach that provides for the continued reduction of the remaining contamination through

natural processes. (Id.) TDEC indicated that continued periodic monitoring and well sampling is

a crucial part of any monitored natural attenuation remedy. (Id.) TDEC stated that “when site

related contaminants have been detected in residential indoor air, the same contaminants were not

detected in co-located sub slab or ambient air samples, indicating that a non-site related source

likely contributed to the indoor air sample detections.” (Id.)

2 In February 2007, JCI informed the TDEC that inadvertent discharges from the industrial facility likely resulted in

chlorinated compounds’ presence. (ECF No. 52, 3.) Subsequently, JCI hired Weston to investigate possible

contamination in the area surrounding the facility. As part of its investigation, Weston installed monitoring wells in

the surrounding area. (Id.) Eventually, a groundwater plume was discovered at the facility and its vicinity, which

expanded into neighborhoods and an aquifer. (Id.) Allegedly, Weston has engaged in remediation efforts to address

the plume, but these efforts have been ineffective. (Id. at 4.)

3 See TDH Health Consultation Report, May 2, 2011. Evaluation for the Vapor Intrusion Investigation for the

Johnson Controls Facility, Lexington, Henderson County, Tennessee (tn.gov) (last visited on March 17, 2022.)

Plaintiffs’ claims in the Second Amended Complaint are: Count 1—negligence, gross

negligence, and negligence per se; Count 2—intentional infliction of emotional distress; Count

3—negligent infliction of emotional distress; Count 4—trespass; Count 5—public nuisance; Count

6—private nuisance; Count 7—breach of duty to warn; Count 8—battery; Count 9—assault; Count

10—common law strict liability; Count 11—punitive damages; Count 12—injunctive relief and

Count 13—successor liability and miscellaneous claims. (ECF No. 33.)

PROCEDURAL BACKGROUND

On August 2, 2018, Plaintiffs filed their initial Complaint in the Circuit Court of Henderson

County, Tennessee. (ECF No. 1-1, 2.) On September 14, 2018, Adient and JCI removed this case

to the United States District Court for the Western District of Tennessee. (Id. at 60.) On April 11,

2019, the district court entered an Order Granting Plaintiffs’ Motion to Remand, finding diversity

and federal question jurisdiction lacking. See Adams v. Adient US, LLC, No. 1:18-cv-01179-JDB-

egb, 2019 U.S. Dist. LEXIS 62277 (W.D. Tenn. Apr. 11, 2019). Following remand, on January

2, 2020, the Circuit Court granted summary judgment in favor of the MIG Defendants, thereby

dismissing the claims against them.4 (ECF No. 1-4, 110.)

Following a grant of leave to file, Plaintiffs filed their Second Amended Complaint in the

Circuit Court on August 24, 2020, against Adient, JCI, Hoover, the MIG Defendants, and Fictitious

Defendants A through Z. (ECF No. 1-12, 60–62, 75, 82.) Therein, Plaintiffs assert 13 claims and

seek $500 million in compensatory damages. (ECF Nos. 1-12, 101–04 & 1-13, 1–10.) On

4 The Court notes “MIG Defendants” when defined collectively refers to the Dissolved MIG, the Active MIG, John

Zardis and Andre Gist as Tennessee residents and former officers and members of the Dissolved MIG, MIG Steel

Fabrication, LLC f/k/a MIG Construction Services, LLC, and MIG Enterprises, LLC. The Court does not agree that

these parties—dismissed by the state court—are properly regarded as current Defendants in this action. The summary

judgment motion stated that the MIG Defendants “move for summary judgment on all of plaintiffs’ claims against

them.” (ECF No. 1-3, 94.) Thus, this Court disagrees with Plaintiffs’ position that the grant of summary judgment

was partial. (See ECF No. 20-1, 5.)

September 1, 2020, Hoover filed a Notice of Removal, to which the remaining Defendants

consented. (ECF Nos. 1, 6 & 1-15.) The Notice asserts that this Court has traditional diversity

jurisdiction pursuant to 28 U.S.C. § 1332 and jurisdiction under the Class Action Fairness Act.

(ECF No. 1, 6–7.) On September 30, 2021, the Court entered an Order denying Plaintiffs’ Motion

to Remand, because the Court has jurisdiction over this case pursuant to the Class Action Fairness

Act which no exceptions thereto apply. (ECF No. 52.)

LEGAL STANDARD

JCI Defendants seek to dismiss Plaintiffs’ claims under 12(b)(6) of the Federal Rules of

Civil Procedure. A complaint may be dismissed under Rule 12(b)(6) for failing to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “The purpose of Rule 12(b)(6) is to

allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if

everything is alleged in the complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)

(citing Nishiyama v. Dickson Cnty., Tenn., 814 F.2d 277, 279 (6th Cir. 1987)).

When evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must

determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a

claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff

pleads 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. To put it plainly, although the complaint

need not contain detailed facts, its “[f]actual allegations must be enough to raise a right to relief

above a speculative level.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545,

548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555.) Determining whether a complaint states

a plausible claim is “context-specific,” requiring the Court to draw upon its experience and

common sense.5 Iqbal, 556 U.S. at 129.

“A Rule 12(b)(6) motion should not be granted unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (quoting Ricco v. Potter, 377 F.3d 599,

602 (6th Cir. 2004)). In evaluating a motion to dismiss, the complaint is reviewed in the light most

favorable to the plaintiff drawing all reasonable inferences in favor of the plaintiff. Id. The burden

lies upon the defendant seeking dismissal. Mediacom Southeast LLC v. Bellsouth

Telecommunications, Inc., 672 F.3d 396, 399 (6th Cir. 2012).

Plaintiffs’ Alternative Motion to Amend Complaint is governed by Rule 15(a)(2) of the

Federal Rules of Civil Procedure, which permits a party to amend its pleading if the opposing party

provides written consent or the court grants leave to amend. Rule 15(a)(2) instructs district courts

to “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, denial may be

appropriate where there is “undue delay, bad faith or dilatory motive on part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Morse

v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002) (quoting Foman v. Davis, 371 U.S. 178, 182

(1962)). These are factors courts may weigh when deciding whether to grant leave to amend.

Knight Capital Partners Corp. v. Henkel AG & Co, KGaA, 930 F.3d 775, 786 (6th Cir. 2019). A

proposed amendment is considered futile if it could not withstand a motion to dismiss under Fed.

R. Civ. P. 12(b)(6). Parchman v. SLM Corp., 896 F.3d 728, 738 (6th Cir. 2018).

5 The Court’s decision to grant or deny a motion to dismiss “rests primarily upon the allegations of the complaint,”

however, “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the

complaint [ ] also may be taken into account.” Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (alterations

in original) (quoting Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)).

ANALYSIS

I. Motion to Dismiss

Count 1: Negligence and Negligence per se claims

a. Negligence

JCI Defendants argue there is no legal duty to Plaintiffs as a matter of law because

Plaintiffs’ allegations are premised on impacts to groundwater, surface water, and aquifer

contamination, which are State sovereign resources reserved for TDEC.6 (ECF No. 6-1, 15-16.)

Defendants assert that any duty regarding alleged damage to Plaintiffs use of water can only be

owed to the State, not to Plaintiffs. See Tenn. Code Ann. § 68-221-702 (“[r]ecognizing that the

waters of the state are the property of the state”). According to JCI Defendants, the Second

Amended Complaint makes no allegation regarding any private drinking water wells, nor does it

allege any Plaintiff was exposed to harm by drinking contaminated groundwater. (ECF No. 6-1,

16.) JCI Defendants argue that these omissions are fatal because Plaintiffs’ allegations stem from

underground contamination of State-owned groundwater, and Plaintiffs who do not use the

groundwater have no property rights in it nor a claim for damages or any duty owed by Adient.7

(Id.)

Plaintiffs argue that relevant case law and statues support their right to bring a negligence

claim against JCI Defendants. (ECF No. 33, 9.) Plaintiffs indicate that their claims are not based

on negligence relating to the groundwater alone because JCI Defendants have also contaminated

6 See Second Amended Compl. (ECF No. 6-2, ¶1) (alleging aquifer contamination and that the groundwater is

“undrinkable”); ¶¶32– 33, 41–42 (alleging contaminated groundwater plume); ¶¶45, 49, 51 (alleging contaminated

aquifer); ¶120 (alleging the chemicals accumulated in the “surface water and/or groundwater”).

7 JCI Defendants indicate that “although not alleged in the Complaint, diligent public record searches by Weston and

documented in the Remedial Action Plan revealed only six plaintiffs’ properties had wells. In discovery, only two of

the 350 responding plaintiffs stated they used well water. All negligence claims by all other plaintiffs, to the extent

they are premised on groundwater damages, should be dismissed as a matter of law.” (ECF No. 6-1, 17.)

the soil and the air. (Id. & ECF No. 6-2, ¶¶ 1, 29, 46, 47, 91, 93, 103, 107, 120, 121, 125, 126, and

130.) Ultimately, Plaintiffs emphasize that JCI Defendants’ arguments do not address the claims

presented in the Second Amended Complaint. (Id.)

The Tennessee Water Quality Control Act (“TWQCA”)8 states:

The penalties, damages, and injunctions provided for in §§ 69-3-115 – 69-3-

119 are intended to provide additional and cumulative remedies to prevent,

abate, and control the pollution of the waters of the state. Nothing contained

in this section shall be construed to abridge or alter rights of action or

remedies in equity or under common law or statutory law, criminal or civil,

nor shall any provision of §§ 69-3-115 – 69-3-117 or this section, or any act

done by virtue thereof, be construed as estopping the state or any

municipality or person, as riparian owners or otherwise, in the exercise of

their rights in equity or under the common law or statutory law to suppress

nuisances, to abate pollution, or to recover damages resulting from such

pollution.

Tenn. Code Ann. § 69-3-118(b) (emphasis added). “A landowner has a property right

in groundwater only to the extent he actually uses that water; he has no property interest in that

water simply because it resides beneath his land.” Baker v. Chevron U.S.A. Inc., 533 F. App'x 509,

521 (6th Cir. 2013). However, in Sterling v. Velsicol Chemical Corp., this Court found “a duty, a

standard of conduct, imposed by law on the defendant to protect others from unreasonable harm

arising from the dumping of the chemicals.” Carrier Corp. v. Piper, 460 F. Supp. 2d 827, 848

(W.D. Tenn. 2006) (citing Sterling v. Velsicol Chem. Corp., 647 F. Supp. 303, 316 (W.D. Tenn.

1986), rev’d in part on other grounds, 855 F.2d 1188 (6th Cir. 1988))). Tennessee citizens, as

beneficiaries of a public trust regarding use of water within the State, “have a right to an adequate

quantity and quality of water as well as a right to unpolluted waters.” Tenn. Code Ann. § 68-221-

702 & Tenn. Code Ann. § 69-3-102.

8 Tenn. Code Ann. § 69-3-101 et seq. (1971).

It is clear that the TWQCA, when viewed in totality, allows for a person to enforce their

rights under statutory law, to suppress nuisances to abate pollution, or to recover damages from

pollution. The Court notes that in In re Tennessee Valley Auth. Ash Spill Litig., the Tennessee

Valley Authority (“TVA”) was held accountable for its negligence in failing to implement a

design, and that once the agency decided to locate, design, and construct a wet coal ash facility at

all, they were liable for doing so negligently. In re Tennessee Valley Auth. Ash Spill Litig., No.

3:09-CV-009, 2012 WL 3647704, at *52 (E.D. Tenn. Aug. 23, 2012); see also Mays v. Tennessee

Valley Auth., 699 F. Supp. 2d 991, 1020 (E.D. Tenn. 2010) (stating that “once TVA exercised its

discretion to construct, use, and keep in operation the Swan Pond facilities, it was obligated to

operate the facilities in a non-negligent manner”). Thus, Plaintiffs are entitled to proceed with

their negligence claims against JCI Defendants. Plaintiffs have sufficiently plead the existence of

a duty by JCI Defendants, and the Second Amended Complaint contains sufficient factual matter

regarding contamination of air and soil ̶ not just groundwater contamination. Moreover, Plaintiffs

have sufficiently plead a true injury when the Second Amended Complaint is viewed in the light

most favorable to them.

The Court recognizes that the TDH Report concluded that the chemicals PCE, TCE, and

TCE breakdown and will not harm the health of residents in homes downgradient from the MIG

facility or the plant employees. However, the Court also notes that TDH Report was conducted

over ten years ago and that further pollution or negative effects may have occurred in the interim.

Thus, the Court has no reason to not accept Plaintiffs’ allegations as true at this stage of the

litigation. There are factual allegations under which relief could be granted, given the number of

Plaintiffs who use the soil for planting and gardening, who are in close proximity with respect to

airspace, and who use well water. Plaintiffs has sufficiently stated a claim for negligence.

Accordingly, JCI Defendants’ Motion to Dismiss the Second Amended Complaint with respect to

Plaintiffs’ negligence claim is DENIED.

b. Negligence Per Se

JCI Defendants argue that Plaintiffs do not state a negligence per se claim as a matter of

law because Plaintiffs rely on the TWQCA, the Tennessee Air Quality Act (“TAQA”)9, and the

Tennessee Solid Waste Disposal Act (“TSWDA”).10 They argue that none of these acts provide a

private right of action and contain no statutory standard of care. (ECF No. 6-1, 13.) Additionally,

JCI Defendants argue that Plaintiffs do not allege they belong to a statutorily protected class. (Id.)

Plaintiffs respond that the TWQCA, TAQA, and TSWDA were enacted to protect the public and

the environment. (ECF No. 33, 6.) Thus, Plaintiffs assert that their claims fall within the intended

protected class of the TWQCA, TAQA, and TSWDA. (Id.)

“In order to establish negligence per se, it must be shown that the statute violated was

designed to impose a duty or prohibit an act for the benefit of a person or the public. It must also

be established that the injured person was within the class of persons that the statute was meant to

protect.” Atria v. Vanderbilt Univ., 142 F. App'x 246, 253 (6th Cir. 2005) (citing Cook By and

Through Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994) (internal

citations and quotations omitted))). Under Tennessee law, only statutes that establish a standard of

care may support a claim of negligence per se. Id. (citing Rains v. Bend of the River, 124 S.W.3d

9 Tenn. Code Ann. § 68-201-103 et seq. (The intent and purpose of the TAQA “is to maintain purity of the air resources

of the state consistent with the protection of normal health, general welfare and physical property of the people,

maximum employment and the full industrial development of the state. The board and department shall seek the

accomplishment of these objectives through the prevention, abatement and control of air pollution by all practical and

economically feasible methods.”)

10 Tenn. Code Ann. § 68-211-102 et seq. (The intent and purpose of the TSWDA is “to protect the public health, safety

and welfare, prevent the spread of disease and creation of nuisances, conserve our natural resources, enhance the

beauty and quality of our environment and provide a coordinated statewide solid waste disposal program.”)

580, 590 (Tenn. Ct. App. 2003); Thomas & Associates, Inc. v. Metropolitan Government of

Nashville, No. M2001-00757-COA-R3-CV, 2003 WL 21302974 (Tenn. Ct. App. 2003)

(citing King v. Danek Med. Inc., 37 S.W.3d 429, 460 (Tenn. Ct. App. 2000))). Legal duties may

arise in two ways under Tennessee law. Rains, 124 S.W.3d at 589. First, the General Assembly

may create a legal duty and then provide a civil cause of action for its breach. Id. Second, the

General Assembly may enact a penal statute that does not explicitly provide a civil remedy, and

the courts may then derive a civil legal duty from the penal statute. Id. Even if these prerequisites

are met, “other factors apply including, but not limited to, (1) the nature of the legislative provision;

(2) the adequacy of existing remedies; (3) the extent to which recognizing a cause of action in

negligence per se would aid, supplement, or interfere with existing remedies; (4) the significance

of the purpose that the legislative body was seeking to effectuate in the statute, regulation, or

ordinance; (5) the extent of the change in tort law that would result from recognizing the action;

and (6) the burden that the new cause of action would place on the judiciary.” Estate of French v.

Stratford House, 333 S.W.3d 546, 562 (Tenn. 2011) (citing Restatement (Second) of Torts § 874A,

cmt. h (1979)). Here, the Court finds that the TWQCA, TAQA, and TSWDA cannot support a

claim of negligence per se. Several considerations support this finding.

First, “the determination of whether negligence per se claims [are] actionable under a

certain statute has been found to be ‘analytically related’ to whether an implied private of action

exists under a legislative enactment.” In re Tennessee Valley Authority, 2021 WL 367704, at *60

(citing Rains, 124 S.W.3d at 588-89 n.5; Thomas & Assocs., Inc., 2003 WL 21302974, at *10.)

The Tennessee Supreme Court has previously held that the TSWDA does not provide a private

cause of action as it is designed to empower government enforcement. Goff v. Elmo Greer & Sons

Const. Co., 297 S.W.3d 175, 186 (Tenn. 2009) (citing Wayne Cnty. v. Tenn. Solid Waste Disposal

Control Bd., 756 S.W.2d 274, 282 (Tenn. Ct. App. 1988)). The TSWDA, TAQA, and TWQCA

all feature extremely similar phrasing, relate primarily to government enforcement of

environmental regulations, and do not explicitly empower any private enforcement. While this

does not mean these Acts “cannot form the basis of negligence per se” as a matter of law as the

defendants argue, it is certainly persuasive authority that private enforcement of these acts through

negligence per se was not intended.

Second, it appears that the TWQCA, TAQA, and TSWDA do not meet a fundamental

requirement of negligence per se, which is to establish a class of persons that the statute is meant

to protect that is more specific than merely every person. Restatement (Second) of Torts § 288(b)

(“The Court will not adopt as the standard of conduct of a reasonable man the requirements of a

legislative enactment or an administrative regulation whose purpose is found to be exclusively to

secure to individuals the enjoyment of rights or privileges to which they are entitled only as

members of the public”); see Rains, 124 S.W.3d at 591 n.10 (citing this section affirmatively).

Third, a negligence per se action under the TWQCA, TAQA, and TSWDA would not fit

well within the factors the Tennessee Supreme Court has previously cited when determining

whether to allow a negligence per se claim to proceed. See Estate of French, 333 S.W.3d at 562.

The nature of these broad environmental statutes is to allow for government enforcement of a

complex regulatory scheme. If any violation of these statutes could lead to a negligence per se

theory by a private party, the burden on the judiciary would be massive and could potentially

interfere with government enforcement, which may involve negotiation or other remedial

measures. Plaintiffs’ citation to the entirety of these statutes in their Complaint as the basis for

their negligence per se claim only exacerbates this problem: allowing private enforcement through

actions for damages under the majority of the Tennessee environmental code seems outside of

what the legislature intended.11 Setting standards of care in the negligence per se context involves

defining “the standard of conduct of reasonable persons in specific circumstances” and is a

decision that ultimately rests with the Court. Rains, 124 S.W.3d at 590-91 (citing Burns v. Frontier

II Props. Ltd. P’ship, 106 S.W.3d 1, 3 (Mo. Ct. App. 2003)). The broadness of Plaintiffs’ theory

would mean accepting bright line standards of care for a whole host of acts, many unknown, that

may impact regulated environmental factors. The Court declines to do so.

The JCI Defendants' Motion to Dismiss the Second Amended Complaint with respect to

the Plaintiffs’ negligence per se claim is GRANTED.

Counts 2 and 3: Negligent and Intentional Infliction of Emotional Distress

JCI Defendants assert the Second Amended Complaint only alleges that Plaintiffs have

sustained “mental anguish or emotional suffering.” (ECF No. 6-1, 17; See ECF No. 6-2, ¶¶ 60, 82,

and 89.) According to the JCI Defendants, these statements do not satisfy the “serious mental

injury” element required to sufficiently raise claims for negligent and intentional infliction of

emotional distress. They further argue the Plaintiffs include business entities in their cause of

action for negligent and intentional infliction of emotional distress, which cannot suffer emotional

distress.12 Plaintiffs respond that the Second Amended Complaint contains factual allegations of

Plaintiffs suffering significant emotional distress, which is much more than hurt feelings, trivial

upsets or temporary discomforts. (ECF No. 33, 10-11.)

In Tennessee, the following nonexclusive list of factors should be considered in

determining whether a Plaintiff has sufficiently alleged “severe mental injury” so as to support his

11 While Plaintiffs provide examples in their brief of specific regulations they believe establish different standards of

care, it is clear these are meant as examples, rather than a narrowing of the argument.

12 JCI Defendants indicate that out of the 450 Plaintiffs, four are business entities. (Royal Properties Inc., Mt. Calvary

Baptist Church, Lexington Properties, Ltd., and Renfroe Rental Properties are classified as Plaintiffs.) (ECF No. 6-2,

¶ 7.)

or her claim for negligent or intentional infliction of emotional distress: (1) evidence of

physiological manifestations of emotional distress; (2) evidence of psychological manifestations

of emotional distress; (3) evidence that plaintiff sought medical treatment; (4) evidence of duration

and intensity of the claimant’s physiological and psychological systems; (5) evidence that

defendant’s conduct caused the plaintiff to suffer significant impairment in his or her daily

functioning; and (6) defendant’s extreme and outrageous conduct. Rogers v. Louisville Land Co.,

367 S.W.3d 196, 209–10 (Tenn. 2012). Moreover, a “serious or severe” emotional injury is one

that occurs “‘where a reasonable person, normally constituted, would be unable to adequately cope

with the mental stress engendered by the circumstances of the case.’” Id. (quoting Rodrigues v.

State, 472 P.2d 509, 520 (Haw. 1970)). However, “a corporation [] may not recover damages for

emotional distress.” Action Security Services, Inc. v. John Willis Webb, Individually, Multiple

Management, and Security Wise, Inc., No. 02C144, 2004 WL 5138696, at *1 (Tenn. Cir. Ct. Jul.

27, 2004).

In the case at hand, Plaintiffs allege that JCI Defendants’ conduct caused them to suffer

significant impairment such as mental anguish, emotional distress, physical harm, and the threat

of physical harm in their daily functioning. Under these circumstances alleged, and when

considering the nonexclusive factors, the Court concludes that a reasonable person would be

unable to adequately cope with the mental stress, which constitutes a serious or severe emotional

injury. It appears that Plaintiffs negligent and intentional infliction of emotional distress claims

contain sufficient factual content to rise above a speculative level. Thus, the Court finds that

Plaintiffs have adequately alleged negligent and intentional infliction of emotional distress, and

JCI Defendants' Motion to Dismiss with respect to Plaintiffs’ claim is DENIED. However, since

corporations may not recover for emotional distress, JCI Defendants’ Motion to Dismiss the

Second Amended Complaint with respect to Plaintiffs who serve as business entities is

GRANTED.

Count 4: Trespass claims

JCI Defendants allege the Second Amended Complaint fails to state that any Plaintiffs

either owned, occupied or had actual possession of property at the time of the trespass, thus

warranting dismissal. (ECF No. 6-1, 18-19.) They also argue that any property owners who leased

their property to another at the time of the alleged trespass are not occupants who could bring a

trespass claim. (Id.) To put it another way, JCI Defendants allege that Plaintiffs, as owners, must

be in possession as actual occupants of the property to assert a claim for trespass.

Plaintiffs argue they are entitled to bring a trespass claim as “current and past owners and/or

occupiers of properties in Lexington, Tennessee near the Industrial Site.” (ECF No. 6-2, ¶ 56.)

Plaintiffs assert that JCI Defendants have “(1) engaged in the release and spread of toxic and

harmful chemicals onto the Industrial Site and other properties in the Lexington, Tennessee area;

(2) contaminated the air, soil, surface water, and ground water in, on and/or near the Plaintiffs’

properties; and/or (3) caused injury and damage to Plaintiffs’ bodies.” (Id., ¶ 91.)

In Tennessee, “every entry upon the soil of another, in the absence of lawful authority,

without the owner’s license is a trespass.” Norvell v. Gray's Lessee, 31 Tenn. 96, 103 (1851); See

State v. Christenson, 517 S.W. 3d 60, 76 (Tenn. 2017); State v. Lyons, 802 S.W. 2d 590, 594 (Tenn.

1990). Furthermore, a trespass may result from indirect force. Twenty Holdings, LLC v. Land S.

TN, LLC, No. M2018-01903-COA-R3-CV, 2019 WL 4200970, at *7 (Tenn. Ct. App. Sept. 5,

2019). One who sets in motion a force that, in the usual course of events, will damage another's

property is liable for trespass. (Id.)

Here, Plaintiffs, as current and past owners of property surrounding the Industrial Site,

allege facts in the Second Amended Complaint that are sufficient to support their claim for trespass

against the JCI Defendants. As noted, the ten year old TDH Report that was provided by JCI

Defendants concluded that chemicals PCE and TCE in addition to TCE’s breakdown will not harm

residents in homes downgradient from the MIG facility or plant employees. It appears that factual

disputes are evident even at this early stage of the litigation. At this point, the Court finds that

Plaintiffs have sufficiently plead a claim for trespass. Thus, JCI Defendants’ Motion to Dismiss

the Second Complaint as to Plaintiffs’ trespass claim is DENIED.

Count 5: Public Nuisance

JCI Defendants argue that Plaintiffs allege no special injury with their public nuisance

claim as a matter of law. (ECF No. 6-1, 21.) JCI Defendants further assert that “on the face of

Plaintiffs’ Second Amended Complaint, no Plaintiff stands in any different position from the

general public that also lives near the Site.” (Id.) In response, Plaintiffs allege that JCI Defendants

polluted and contaminated the groundwaters beneath their community with highly toxic chemicals,

including TCE, which amounts to a public nuisance.13 As a direct result, Plaintiffs homes have

been damaged by JCI Defendants’ pollution of the property they own, causing the value of their

land to diminish. (ECF No. 6-2, ¶ ¶ 1, 29, 46, 47, 91, 93, 102-09, 120, 121, 125, 126, and 130).

Plaintiffs say that these allegations are specifically recognized as the type of special injury

sufficient to support their public nuisance action. (ECF No. 33, 15.)

13 The Court notes Plaintiffs reference to one of the products of TCE is Vinyl Chloride, “a significantly more dangerous

and hazardous carcinogen.” (ECF No. 33, 14.) The Court also notes the May 2, 2011 TDH Report stated that the

Tennessee Department of Health’s Environmental Epidemiology Program concluded the chemicals PCE and TCE and

TCE’s breakdown chemicals will not harm the health of residents in homes downgradient from the MIG facility. (See,

supra note 3.; TDH Health Consultation Report.)

In Tennessee, liability for a public nuisance is based on interference with the public’s use

and enjoyment of a public place or with other rights common to the public. Metro. Gov't of

Nashville & Davidson Cnty. v. Counts, 541 S.W.2d 133, 138 (Tenn. 1976). However, “[n]o private

citizen can bring a bill to restrain a public nuisance, unless the complainant can show some injury

of a serious nature to himself, different and apart from the general injury to the public.” Weakley

v. Page, 102 Tenn. 178, 53 S.W. 551, 554 (1899); see also Wayne Cnty v. Tennessee Solid Waste

Disposal Control Bd., 756 S.W. 2d 274, 283 (Tenn. Ct. App. 1988). Moreover, a public nuisance

is a “condition of things which is prejudicial to the health, comfort, safety, property, sense of

decency, or morals of the citizens at large, resulting either from an act not warranted by law or

neglect of a duty imposed by law.” State ex rel. Swann v. Pack, 527 S.W.2d 99, 113 (Tenn. 1975).

“A public nuisance may be abated on a bill in equity, brought by a private party, who has suffered

special damage.” Mississippi & M.R. Co. v. Ward, 67 U.S. 485, 491, 17 L. Ed. 311 (1862).

Here, the Second Amended Complaint alleges that the JCI Defendants interfered with their

groundwater by causing pollution beneath their community, resulting in property damage of their

homes. It appears to the Court that Plaintiffs have sufficiently plead specific injuries of a serious

nature, different and apart from the general injury to the public. Each Plaintiff experienced unique

and distinct property damage to their homes and the value of their land has declined as a result. It

is plausible that Plaintiffs incurred property damage that caused a reduction in property value

because of a public nuisance. Therefore, the Court finds that Plaintiffs have sufficiently stated a

public nuisance claim. Accordingly, JCI Defendants’ Motion to Dismiss as to Plaintiffs’ public

nuisance is DENIED.

Count 6: Private Nuisance

JCI Defendants argue that 452 plaintiffs are considered “the public.” Thus, the private

nuisance alleged is interference with public rights—not private rights. (ECF No. 6-1, 21.) They

further argue that allowing this number of plaintiffs to collectively assert a private nuisance claim

effectively nullifies the public nuisance doctrine as it is applied in Tennessee. (Id.) Plaintiffs

allege that toxic chemicals were released and spread through and near Plaintiffs’ properties which

contaminated the air, soil, surface water, and groundwater. (ECF No. 6-1, 21; ECF No. 6-2, 107-

108.) Thus, Plaintiffs argue the use and enjoyment of their land was negatively impacted. (Id.)

In Tennessee, a private nuisance is defined as “anything which annoys or disturbs the free

use of one's property, or which renders its ordinary use or physical occupation uncomfortable and

extends to everything that endangers life or health, gives offense to the senses, violates the laws

of decency, or obstructs the reasonable and comfortable use of property.” Lane v. W.J. Curry &

Sons, 92 S.W.3d 355, 364 (Tenn. 2002) (quoting Pate v. City of Martin, 614 S.W.2d 46, 47 (Tenn.

1981)). So “long as the interference is substantial and unreasonable, such as would be offensive

or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property

may amount to a nuisance.” Id. at 365 (quoting W. Page Keeton, Prosser and Keeton on the Law

of Torts 619–20 (5th ed.1984)). Thus, a nuisance does not describe a defendant's conduct, but a

type of harm suffered by the plaintiff. Id.; see also Zollinger v. Carter, 837 S.W.2d 613, 615 (Tenn.

Ct. App. 1992).

In the case at hand, Plaintiffs allege that JCI Defendants committed a private nuisance

because of toxic chemicals that were released and spread amongst Plaintiffs’ properties. Upon

review of the Second Amended Complaint, there are facts alleging a substantial and unreasonable

invasion of Plaintiffs’ property that caused the contamination of air, soil, surface water, and

groundwater. Such contamination would not only be offensive and inconvenient to a normal

person, but also would significantly diminish the enjoyment and value of Plaintiffs’ property.

There are many examples of what constitutes a private nuisance in Tennessee law. For

example, In Signal Mountain Portland Cement Co. v. Brown, the Sixth Circuit held that a private

nuisance existed “where smoke and noxious gases from smelting works injured the property and

endangered the health of adjoining landowners an action for damages would lie, even though the

business of the defendant was conducted in a suitable locality with the most approved appliances

and furnished employment, directly or indirectly, to nearly the whole community.” Signal

Mountain Portland Cement Co. v. Brown, 141 F.2d 471, 475 (6th Cir. 1944). Also, in Wayne Cty.

v. Solid Waste Dis. Cont. Bd., two landowners sued a county after their wells were contaminated

by a county-owned landfill. The state's solid waste disposal control board found for the landowners

and ordered the county to supply the landowners with uncontaminated water. 756 S.W.2d 274, 284

(Tenn. Ct. App. 1988) (Holding that there was sufficient evidence to support the finding that the

landfill had caused the contamination of the wells, but that the board did not have the statutory

authority to fashion remedies and that “the plaintiffs' assertions would support a claim for damages

under a private, as opposed to a public, nuisance theory, if the assertions were made in a court of

competent jurisdiction.”) In light of these precedents, and when reviewing the Second Amended

Complaint in the light most favorable to Plaintiffs, coupled with making reasonable inferences in

their favor, the Court finds there are sufficient factual allegations to support Plaintiffs’ private

nuisance claim. Thus, JCI Defendants’ Motion to Dismiss the Second Amended Complaint as to

Plaintiffs’ private nuisance claim is DENIED.

Count 7: Breach of Duty to Warn

JCI Defendants argue that Plaintiffs’ claim for breach of duty to warn is not recognized as

a cause of action under Tennessee Law. (ECF No. 6-1, 22.) Plaintiffs respond that a negligence

claim has been adequately alleged and can be raised because JCI Defendants breached their duty

owed to Plaintiffs by failing to adequately warn of the chemical contamination or dangers related

to the resulting toxic plume. (ECF No. 6-2, ¶ 112.)

In Tennessee, “breach of a duty to warn is not a free-standing claim, but rather an element

that may apply to a number of different types of claims, including simple negligence and various

product liability claims.” Bissinger v. New Country Buffet, No. M2011-02183-COA-R9CV, 2014

WL 2568413, at *19 (Tenn. Ct. App. Jun. 6, 2014); Flax v. DaimlerChrysler Corp., 272 S.W.3d

521, 542 (Tenn. 2008). However, the law does not impose a duty to warn of risks that are widely

known. Bissinger; 2014 WL 2568413, at *19; see also Pemberton v. American Distilled Spirits

Co., 664 S.W.2d 690, 692 (Tenn. 1984). In this regard, a “failure to warn of a dangerous condition

that one did not create and could not have anticipated does not constitute a breach of the duty of

care.” Miles v. Kohli & Kaliher Assocs., Ltd., 917 F.2d 235, 244 (6th Cir. 1990).

In the case at hand, the Second Amended Complaint contain factual allegations that suggest

JCI Defendants breached their duty to Plaintiffs for failure to warn of the presence of toxic

chemicals that contaminated the air, soil, surface water, and groundwater. The allegations of harm

asserted in the Second Amended Complaint are the type of harm that JCI Defendants could have

created and anticipated given their line of business. The risks associated with toxic chemicals are

widely known, which may plausibly impose a duty to warn. The Court notes TDEC acknowledged

the contamination and affirmed that continued periodic monitoring and well sampling are effective

attenuation remedies. Consequently, TDEC identified some level of contamination and the need

for remediation. Given JCI Defendants failure to warn as alleged by Plaintiffs, the Court makes a

reasonable inference that JCI Defendants breached their duty to warn under a negligence theory.

Accordingly, JCI Defendants’ Motion to Dismiss the Second Amended Complaint as to Plaintiffs’

breach of duty to warn claim is DENIED, in so far as the claim merely states one of the Plaintiffs’

theories of simple negligence as alleged in Count 1.

Count 8: Battery

JCI Defendants argue the Second Amended Complaint fails to allege intent, an essential

element of battery. (ECF No. 6-1, 22.) More specifically, they argue that Plaintiffs failed to state

that Adient acted with the intent to cause a harmful or offensive contact with Plaintiffs’ bodies as

required to allege battery. (Id.) JCI Defendants make the point that intent to dispose of chemicals

is not the same as disposing of chemicals with intent to cause offensive contact with Plaintiffs’

bodies. Because that element is lacking, Count 8 of the Second Amended Complaint should be

dismissed. (Id.)

Plaintiffs argue that JCI Defendants have intentionally and continuously committed battery

to Plaintiffs’ persons by releasing, dispersing, and failing to contain and remediate hazardous

chemicals and pollutants. (ECF 6-2, ¶ 118.) Plaintiffs also assert that JCI Defendants have

willfully, intentionally, or purposefully disposed of toxic chemicals in a manner JCI Defendants

knew to be unsafe, illegal, and dangerous to nearby properties, owners, and residents. (Id.; ¶ 65.)

As a result, JCI Defendants should be held liable because they “knew or should have known that

toxic chemicals would be ingested by Plaintiffs when they breathed the air, worked in their yards,

gardened, and/or ate food from the gardens or fish caught in the nearby rivers and their tributaries.”

(Id.; ¶ 121.) Plaintiffs conclude that Defendants’ intentional actions have caused unpermitted,

harmful, or offensive bodily contact with Plaintiffs. (Id.; ¶ 119.)

In Tennessee, a civil cause of action for battery is “any intentional, unlawful and harmful

or offensive contact by one person with the person of another.” Thompson v. Williamson Cnty.,

Tenn., 965 F. Supp. 1026, 1038 (M.D. Tenn. 1997), aff'd Thompson v. Williamson Cnty.,

Tennessee, 219 F.3d 555 (6th Cir. 2000). However, “not every physical contact that is unconsented

to is so offensive that it amounts to a battery.” Dillingham v. Millsaps, 809 F. Supp. 2d 820, 855

(E.D. Tenn. 2011). Rather, “offensive contact” is “contact that infringes on a reasonable sense of

personal dignity ordinarily respected in a civil society.” Reagan v. City of Knoxville, 692 F. Supp.

2d 891, 904 (E.D. Tenn. 2010) (citing Doe v. Mama Taori's Premium Pizza, No. M1998-00992-

COA-R9-CV, 2001 WL 327906, at *4 (Tenn. Ct. App. 2001)). Also, the intent required for a

battery is not an intent to cause harm. Rather, it is an intent to do the act that causes the harm. See

T.P.I. - Civil § 8.02 (2021 ed.).

The JCI Defendants argue that Plaintiffs failed to allege intent which is an essential element

of battery. The Court disagrees. The Complaint alleges that JCI Defendants intentionally disposed

of toxic waste in such a way that caused harm. It is only common sense that operating a business

that produces toxic chemicals, if not properly contained, is bound to cause harm to a person through

ingestion as the Plaintiffs allege. Therefore, JCI Defendants’ Motion to Dismiss the Second

Amended Complaint as to Plaintiffs’ battery claim is DENIED.

Count 9: Assault

The JCI Defendants assert that Plaintiffs failed to allege two essential elements to state a

civil claim for assault. They argue Plaintiffs’ Second Amended Complaint fails to allege that

Plaintiffs suffered fear of imminent harm and that Plaintiffs have not sufficiently plead that JCI

Defendants acted with the requisite intent to cause Plaintiffs’ fear of immediate peril. (ECF No.

6-1, 23-24.) Plaintiffs argue that because the JCI Defendants acted intentionally in disposing of

the toxic chemicals and failure to adequately remediate the risks, Plaintiffs had a “substantial

apprehension of harm given their worry of ingesting chemicals.” (Id.) Plaintiffs also contend that

there are many factual allegations that need to be addressed before an assault claim can be ruled

upon. (ECF No. 33, 27.)

Under Tennessee law, a civil action for assault cannot be sustained upon the basis of words

alone; rather, there must be an overt act or some type of physical movement which would cause a

plaintiff to believe there was imminent physical harm or danger.14 Dillingham v. Millsaps, 809 F.

Supp. 2d 820, 855 (E.D. Tenn. 2011). The tort of assault has two elements: “(1) An intentional

attempt or the unmistakable appearance of an intentional attempt to do harm to, or to frighten,

another person; and (2) The present ability or the unmistakable appearance of the present ability

to do that harm or to cause that fright.” Doe v. Andrews, 275 F. Supp. 3d 880, 887 (M.D. Tenn.

2017) (quoting T.P.I. Civil § 8.01); see also Hughes, 340 S.W.3d at 371 (holding intent to create

apprehension of harm to the plaintiff is sufficient to support the tort of assault). Thus, assault

requires a showing of a “present ability” to inflict physical harm that is “imminent” or about to

happen, and that a defendant could actually cause, or unmistakably appear able to cause an assault.

On the face of the Second Amended Complaint, imminent physical harm is sufficiently

plead. The Plaintiffs associated with this case have reasonably alleged fear or physical harm at

different points of time, and the apparent ability of the JCI Defendants to cause that harm.

Additionally, the intent requirement for the assault claim is satisfied because the Plaintiffs allege

JCI Defendants acted with a substantial certainty that harm would result from their actions.

14 Plaintiffs cites a law review article entitled “The Environmental Fate of Toxic Waters, the Certainty of Harm, Toxic

Torts, and Toxic Regulation, 19 ENVTL. L. 321, 349 (1988)” to support their argument that a cause of action for

assault raised later is permitted for the purposes of meeting the “imminent” requirement to satisfy an assault claim.

The article states, “if someone acts knowing with a substantial certainty that harm will result, then the act constitutes

battery. This holds true even if the harm occurs at a much later date, which is typical of toxic torts.” (Id. at 349.)

Moreover, the alleged present ability of the Defendants to cause the physical harm or fear is

uniquely captured by each Plaintiffs’ perspective. Thus, JCI Defendants’ Motion to Dismiss the

Second Amended Complaint as to Plaintiffs’ assault claim is DENIED.

Count 10: Strict Liability

JCI Defendants argue that automobile parts manufacturing is not an abnormally dangerous

activity for purposes of strict liability.15 (ECF No. 6-1, 25.) Plaintiffs assert that JCI Defendants’

manufacturing and releasing of toxic chemicals into the environment constitutes an abnormally

dangerous activity. (ECF No. 6-2, ¶ 130.) Plaintiffs contend that pollution of the environment was

accomplished when “JCI Defendants dumped and buried toxic chemicals at the Industrial Site

which migrated to Plaintiffs’ properties.” (ECF No. 33, 21; ECF No. 6-2, ¶¶ 79-80.)

In Tennessee, “defendants engaged in ultrahazardous activities are held strictly liable for

injuries caused to the person or property of another by defendant's participation in the

activity.” Leatherwood v. Wadley, 121 S.W.3d 682, 699 (Tenn. Ct. App. 2003); See England v.

Burns Stone Co., Inc., 874 S.W.2d 32, 37 (Tenn. Ct. App. 1993). The care exercised by a

defendant in carrying out said activity is irrelevant. Leatherwood, 121 S.W.3d at 700 (indicating

storage of highly toxic chemicals is an ultrahazardous activity.); see Miller v. Alman Constr.

Co., 666 S.W.2d 466, 468 (Tenn. Ct. App. 1983) (citations omitted); see also Sterling v. Velsicol

Chem. Corp., 647 F. Supp. 303, 311 (W.D. Tenn. 1986), aff'd in part, rev'd in part, 855 F.2d 1188

(6th Cir. 1988) (holding that a defendant was carrying on an abnormally dangerous activity when

it created, implemented, operated and closed a chemical waste burial site in Hardeman County,

Tennessee). The operation of an abnormally dangerous activity by a defendant makes that

defendant strictly liable to the plaintiffs for all injuries caused thereby. Id.

15 The Court notes that JCI Defendants provide case law regarding what constitutes abnormally dangerous activity

from jurisdictions outside of the Sixth Circuit.

In this case, the Second Amended Complaint alleges that JCI Defendants stored and

dumped large quantities of highly toxic chemical waste on the Industrial Site. The act of dumping

huge quantities of highly toxic chemicals on the Industrial Site is factually sufficient to support a

claim for strict liability. Therefore, JCI Defendants’ Motion to Dismiss the Second Amended

Complaint as to Plaintiffs’ strict liability claim is DENIED.

Count 11: Punitive Damages

As far as a claim for punitive damages, JCI Defendants argue that “Plaintiffs’ Second

Amended Complaint shows that Adient reported the contamination to TDEC and undertook

substantial investigative and remedial work under TDEC’s oversight—even if Plaintiffs contended

the work should have been done differently.” (ECF No. 6-2, ¶¶ 26-29 & 43.) They further assert

that the “compounds originated from onsite manufacturing activities and inadvertent discharges

from process areas and wastewater conveyances.” (Id.; ¶ 27.) JCI Defendants argue that punitive

damages are not warranted in this case because they reported the contamination to TDEC and took

steps to investigate and commence remedial work under TDEC’s oversight. Because of this, the

JCI Defendants contend that Plaintiffs’ allegations that Adient disposed of chemicals in an

improper way fall short of showing the required intent to do harm or malice in order to award

punitive damages. (ECF No. 6-1, 28.)

Plaintiffs argue that JCI Defendants intentionally and illegally dumped the hazardous

chemicals in violation of environmental laws. (ECF No. 33, 22.) Plaintiffs further argue that any

reference to “inadvertent discharge” was meant only to show JCI Defendants acknowledgement

of causing the contamination. Thus, Plaintiffs aver that JCI Defendants willfully, intentionally, or

purposefully disposed of toxic chemicals in a manner they knew to be unsafe, illegal, and

dangerous to nearby properties, owners, and residents. (ECF No. 6-2, ¶ 64.)

In Tennessee, a court may award punitive damages only if it finds a defendant has acted

either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly. Hodges v. S.C. Toof &

Co., 833 S.W.2d 896, 901 (Tenn. 1992). Punitive damages are available in cases involving “only

the most egregious of wrongs.” N.H. ex rel. Hernandez v. Sequoyah Council, Inc., No. 2:11-CV-

171, 2012 WL 2126863, at *2 (E.D. Tenn. Apr. 30, 2012). Where punitive damages are sought,

the pleadings must properly disclose circumstances which justify an allowance of such damages.

Smith v. Tri-Cty. Elec. Membership Corp., 689 S.W.2d 181, 185 (Tenn. Ct. App. 1985).

Here, the Second Amended Complaint contains sufficient facts to support JCI Defendants’

liability for punitive damages. Plaintiffs allege that JCI Defendants knew or should have known

of the unsafe conditions and support a claim for punitive damages based on recklessness. Not

having malice or an intent to do harm, as JCI Defendants suggest, does not negate JCI Defendants’

admission to the discharge of the toxic chemicals. Thus, JCI Defendants’ Motion to Dismiss the

Second Amended Complaint as to Plaintiffs’ claim for punitive damages is DENIED.

Count 12: Injunctive Relief

JCI Defendants argue that the broad remedial injunction Plaintiffs seek is precluded by the

TWQCA and the TSWDA. (ECF No. 39, 22.) JCI Defendants assert that “no injunction should

be issued because the State ha[s] exclusive authority to enjoin pollution.” (Id. at 21.) Therefore,

JCI Defendants indicate the State has charged the TDEC, not tort plaintiffs or the courts, with

determining and implementing appropriate environmental remedial measures. (ECF No. 6-1, 28.)

Plaintiffs assert that “TDEC does not have exclusive authority to enjoin or abate pollution of the

waters of the State of Tennessee” and that a violation of the environmental laws enacted by the

legislature is competent evidence to be considered in determining whether appropriate relief is to

be afforded the aggrieved citizen. (ECF No. 33, 23.) Plaintiffs suggest that if the Court does not

intervene Plaintiffs will be irreparably injured due to continued mental anguish, emotional distress,

physical harm, threat of physical harm and injury, as well as loss of value to their properties. (ECF

No. 6-2, ¶¶ 136-140.)

As stated previously, the TWQCA explicitly reserves the ability for “… a person to

exercise their rights in equity or under the common law or statutory law to suppress nuisances, to

abate pollution, or to recover damages resulting from pollution.” See infra Count 1, Negligence

claims. Additionally, the TWQCA expressly states that “the people of Tennessee, as beneficiaries

of the trust, have a right to unpolluted waters.” (Id.) “The penalties, damages, and injunctions

provided for in §§ 69-3-115 – 69-3-119 are intended to provide additional and cumulative remedies

to prevent, abate, and control the pollution of the waters of the state.” (Id.) Any citizen has the

right to intervene on grounds that the penalties or remedies imposed by regulatory officials are

inadequate or are based on erroneous findings of fact. Goff v. Elmo Greer & Sons Const. Co., 297

S.W.3d 175, 185–86 (Tenn. 2009).

The TWQCA provides that plaintiffs are permitted to exercise their rights in equity, under

common law, or through enforcing statutory law to abate the toxic chemicals that formed the

pollution. Thus, plaintiffs are authorized to recover damages from the pollution where the

penalties or remedies imposed by regulatory officials are allegedly inadequate or based on

erroneous findings of fact. After reviewing the Second Amended Complaint in the light most

favorable to the Plaintiff, the Court finds that Plaintiffs have stated factual allegations to

sufficiently support a claim for injunctive relief. (ECF No. 6-2, ¶¶ 135-140.) Thus, JCI

Defendants’ Motion to Dismiss the Second Amended Complaint as to Plaintiffs’ claim for

injunctive relief is DENIED.

Count 13: Successor Liability

JCI Defendants argue that successor liability, corporate veil piercing, and indemnification

involve an independent cause of action. (ECF No. 6-1, 29.) JCI Defendants say that Plaintiffs’

allegations are merely arguments that some JCI Defendants may be responsible for the liabilities

of other JCI Defendants allegedly arising from the other twelve counts in the Plaintiffs’ Second

Amended Complaint. (Id.) Therefore, JCI Defendants argue that Plaintiffs have not sufficiently

stated a successor liability claim because it is not an independent claim, and all other claims should

be dismissed. (ECF No. 33, 24; ECF No. 6-1, 29; ECF No. 39, 22.)

In support of Plaintiffs claim for successor liability, Plaintiffs allege in their Second

Amended Complaint that “Defendants John Zardis and Andre Gist made distributions to

themselves without properly dissolving or winding up the Dissolved MIG.” (ECF No. 6-2, ¶ 143.)

Plaintiffs state that John Zardis, Andre Gist, and the Manufacturers Industrial Group LLC (“Active

MIG”) have the exact same name as Dissolved MIG except that the Dissolved MIG ends in

“L.L.C.” whereas the Active MIG ends in “LLC.” (Id. at 146.) The Dissolved MIG and the Active

MIG have the same members. (Id. at 149.) Plaintiffs claim that “the transfer of assets, including

goodwill, from the Dissolved MIG to the Active MIG was not supported by sufficient

consideration and was to defraud creditors and third-party claimants.” and that “Johnson Controls,

Inc. is responsible for any liabilities Adient US LLC or Hoover Universal, Inc. may incur given

the transfer of assets to Adient US LLC or Hoover Universal, Inc. was intended to defraud creditors

and third-party claimants from recovering any claims relating to or arising from Johnson Controls,

Inc.’s illegal and wrongful activities within its division of auto parts manufacturing, including the

illegal and wrongful dumping of toxic chemicals.” (Id.; ¶¶ 151-52, 156.) Lastly, Plaintiffs allege

that Defendant Johnson Controls is also responsible for any liabilities of its predecessor in interest,

Ferro Manufacturing, and its subsidiaries or affiliates based on successor liability because of the

agreements with its subsidiaries or affiliates. (Id.; ¶ 159.)

The absence of common identity of ownership should not be conclusive against a finding

of successor liability. City Mgmt. Corp. v. U.S. Chem. Co., 43 F.3d 244, 252 (6th Cir. 1994). Even

where there is not a common identity of ownership, successor liability may attach where there is

sufficient continuity of the enterprise between the two corporations. Id. The following factors

must be considered as guidelines in determining whether there is such continuity: (1) whether there

is a continuation of the enterprise of the selling corporation, including a continuity of management,

personnel, physical location, assets, and general business operations; (2) whether the selling

corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and

practically possible; and (3) whether the purchasing corporation assumes those liabilities and

obligations of the selling corporation ordinarily necessary for the uninterrupted continuation of the

normal business operations of the seller. Id.

Here, Plaintiffs’ underlying claims presented in their Second Amended Complaint contain

sufficient factual matter that the Court has already accepted as true and plausible on its face.

Plaintiffs adequately plead that the transfer of assets and liabilities, including goodwill, between

the Active MIG and Dissolved MIG was not supported by adequate consideration, and that the

Active MIG and Dissolved MIG defendants defrauded creditors and third-party claimants.

Additionally, Plaintiffs allege that Johnson Controls, Inc. is responsible for any liabilities Adient

US LLC or Hoover Universal, Inc. may incur because the transfer of assets was intended to defraud

creditors and third-party claimants. Plaintiffs allege that JCI Defendants engaged in this deception

to prevent the recovery for any claims arising from Johnson Controls, Inc.’s allegedly illegal and

wrongful dumping.

The ultimate question is whether there is sufficient continuity of the enterprise between the

two corporations to implicate successor liability. The factual allegations concerning the Active

MIG and Dissolved MIG having the same name and the same members demonstrates common

identity of ownership sufficiently support a finding of successor liability. Therefore, at the motion

to dismiss stage, the Court finds that Plaintiffs have sufficiently plead a claim for successor

liability. Accordingly, JCI Defendants’ Motion to Dismiss the Second Amended Complaint as to

Plaintiffs’ successor liability is DENIED.

II. Plaintiffs’ Alternative Motion to Amend Complaint

Plaintiffs make numerous references to their ability to amend their Second Amended

Complaint if the Court conclude that deficiencies are present. (ECF No. 38-1, 2.) Plaintiffs argue

JCI Defendants will not be prejudiced because a deadline to amend has not been set, the parties

are still in written discovery, the parties have not begun depositions, and a scheduling order has

not been entered. (Id.) Plaintiffs further argue that they have not altered their primary claims from

the original complaints filed in the case, and that “the amendments so far have only dealt with

adding and removing parties, adding separate successor liability and miscellaneous legal theories,

and removing a reference to federal law. (Id.)

JCI Defendants argue that Plaintiffs’ Alternative Motion to Amend Complaint is the

Plaintiffs fourth attempt to correct their deficiencies. (ECF No. 40, 1.) JCI Defendants argue that

Plaintiffs provided no hint as to the substance of any proposed amendments. (Id.) Thus, Plaintiffs

are improperly seeking leave to submit an “unknown, unseen, potential future complaint if the

Court finds Plaintiffs’ Second Amended Complaint is deficient.” (Id.)

The burden of pleading sufficient facts rests with Plaintiffs. Red Hed Oil, Inc. v. H.T.

Hackney Co., 292 F. Supp. 3d 764, 779 (E.D. Ky. 2017). “[A] party may amend its pleading only

with the opposing party’s written consent or the court’s leave. “The court should freely give leave

when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend should be denied when the

Court finds “repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, and futility of the

amendment.” Morse, 290 F.3d at 800; see also Miller v. Champion Enterprises Inc., 346 F.3d 660,

690 (6th Cir. 2003). Pursuant to Local Rule 7.2(a)(1)(B), failing to include a certificate of

consultation with a motion may be deemed good grounds for denying the motion.

In the instant case, Plaintiffs have had three opportunities to amend their complaint.16

Despite Plaintiffs not altering their primary claims from the original complaints, the Court finds

Plaintiffs have had multiple opportunities to cure deficiencies. The Court is aware of its discretion

to freely give leave when justice so requires. However, given Plaintiffs’ repeated attempts to

amend their complaint in this case, the Court finds that having another opportunity is not justified.

Given the number of years since the filing of Plaintiffs’ first complaint, any additional amendments

from Plaintiffs would unduly prejudice JCI Defendants. Accordingly, Plaintiffs’ Alternative

Motion to Amend Complaint is DENIED.

CONCLUSION

JCI Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint is DENIED in

part and GRANTED in part. JCI Defendants’ Motion to Dismiss is GRANTED as to Plaintiffs’

Negligence Per Se claims as well as to Plaintiffs who serve as business entities in Count 2 and

16 Plaintiffs First Amended Complaint was filed on November 18, 2018. See First Am. Compl., Adams v. Adient US

LLC, No. 1:18-cv-01179-JDB-egb (W.D. Tenn. Nov. 18, 2019) (ECF No. 38)). Plaintiffs’ original complaint was filed

on August 2, 2018. (ECF No. 1-1, 4-33).

Count 3 of the negligent and intentional infliction of emotional distress claims. Also, Plaintiffs’

Alternative Motion to Amend Complaint is DENIED.

IT IS SO ORDERED this 12th day of September, 2022.

s/John T. Fowlkes, Jr.____

JOHN T. FOWLKES, JR.

UNITED STATES DISTRICT JUDGE