City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

THE CITY OF HUNTINGTON,

Plaintiff,

v. Civil Action No. 3:17-01362

AMERISOURCEBERGEN DRUG

CORPORATION, et al.,

Defendants.

v. Civil Action No. 3:17-01665

CABELL COUNTY COMMISSION,

Plaintiff,

v.

AMERISOURCEBERGEN DRUG

CORPORATION, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is defendants’ motion for summary

judgment on the ground that plaintiffs lack standing. (ECF No.

238.) For the reasons that follow, the motion is DENIED.

I. Background

Plaintiffs, a West Virginia city and a West Virginia

county, proceed in this case on a single cause of action against

defendants, three prescription drug distribution companies.

That cause of action is public nuisance. Defendants say that

the court should grant summary judgment because plaintiffs lack

standing under West Virginia law to sue for the public nuisance

plaintiffs allege. Defendants say that for over one hundred

years, courtroom doors have been shut to West Virginia

municipalities that seek abatement of public nuisances, except

for public nuisances that are (1) nuisances per se or (2)

nuisances as defined pursuant to formal ordinances. Plaintiffs

disagree. Plaintiffs say that defendants are mistaken about

West Virginia law and that, even if defendants were correct,

plaintiffs would still have standing.1

II. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides:

A party may move for summary judgment, identifying

each claim or defense—or the part of each claim or

defense—on which summary judgment is sought. The

court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a

matter of law.

The moving party has the burden of establishing that there is no

genuine issue as to any material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). This burden can be met by

showing that the nonmoving party has failed to prove an

essential element of the nonmoving party’s case for which the

nonmoving party will bear the burden of proof at trial. Id. at

1 Standing under Article III of the United States Constitution is

not at issue in this motion.

322. This is so because “a complete failure of proof concerning

an essential element of the nonmoving party’s case necessarily

renders all other facts immaterial.” Id. at 323.

Once there is a proper challenge to the sufficiency of the

nonmoving party’s evidence on an essential element, the burden

shifts to the nonmoving party to produce sufficient evidence for

a jury to return a verdict for the nonmoving party. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

The mere existence of a scintilla of evidence in

support of the plaintiff’s position will be

insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff. The judge’s

inquiry, therefore, unavoidably asks whether

reasonable jurors could find, by a preponderance of

the evidence, that the plaintiff is entitled to a

verdict . . . .

Id. at 252. “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id.

at 250-51. All reasonable inferences are to be drawn in the

nonmoving party’s favor. See id. at 255.

III. Discussion

Defendants cast the analysis as straightforward: A West

Virginia municipality has no standing to sue to abate an alleged

nuisance unless it is (1) a nuisance per se or (2) a nuisance

per ordinance.2 Because neither exists here, defendants say,

2 The court will refer to a nuisance created by conduct that

violates an ordinance with the shorthand “nuisance per

ordinance.”

plaintiffs have no standing. On the nuisance per se analysis,

defendants frame the relevant activity broadly: distribution of

pharmaceutical drugs in general. From this bird’s-eye view,

there cannot be a nuisance per se because plaintiffs cannot show

that the drug distribution business is always a nuisance, as

they must to show nuisance per se. On the nuisance per

ordinance analysis, defendants contend that because plaintiffs

passed mere resolutions, not formal ordinances, there is no

nuisance per ordinance here.3

Plaintiffs contest defendants’ framing of both the rule and

of the relevant activity. The rule that plaintiffs put forward

is that municipalities have standing to sue to abate common law

public nuisances; they just do not have the power to make up

nuisance law out of whole cloth and then summarily enforce it

(as the municipalities in cases that defendants rely on sought

to do). Plaintiffs also frame the conduct at issue more

narrowly, focusing on defendants’ alleged violations of the law

in connection with their drug distribution businesses.

Plaintiffs say that they are trying to abate a public nuisance

arising from defendants’ failure to follow applicable drug

3 Defendants also contend that even if plaintiffs had passed such

ordinances, they would function as ex post facto laws or bills

of attainder (if they purported to apply retroactively) and

would very likely be preempted by federal law.

distribution laws, not shutter defendants’ entire drug

distribution operations.

a. Applicable West Virginia Law

i. Limitations on Municipalities’ Nuisance Abatement

Power

The standing rule that defendants set forth comes primarily

from Parker v. City of Fairmont, 79 S.E. 660 (W. Va. 1913). The

Parker syllabus states,

Under the provision of the charter of the city of

Fairmont, same as Code 1906, ch. 47, sec. 28, that

“the council shall have power to abate or cause to be

abated anything which, in the opinion of a majority of

the whole council, shall be a nuisance,” the council

may abate only that as a nuisance which is recognized

as such per se, or branded as such by lawful statute

or ordinance.

Id. at 660. In that case, the City of Fairmont’s charter

authorized it “to abate or cause to be abated anything which, in

the opinion of a majority of the whole [city] council, shall be

a nuisance.” Id. at 661. Further, a Fairmont ordinance

provided that, upon a majority vote, the city council could

order the abatement of “any out–house, privy, hog–pen, stable or

other building.” Id. If the owner did not comply with the

abatement order, the mayor could “direct the proper officer of

the city” to abate the nuisance by force. See id.

The city ordered that a dye works be torn down. Id.

Notably, the city did not involve the courts before seeking to

tear down this private property. See id. The lack of due

process and judicial oversight was a particular problem because

the charter provision essentially allowed the opinion of the

city council to determine what nuisance law was. See id. at

661-62. As the Supreme Court of Appeals of West Virginia

observed, the power that the Fairmont city council claimed was

essentially to “make the law and enforce it at the same time in

individual cases.” Id. at 662. The court did not confront a

situation where a municipality was using the judicial process to

seek relief against what the law already held to be a nuisance.

Instead, the court confronted a situation where a

municipality was making up its own law and then applying that

law to “arbitrarily singl[e] out a lawful business of one

individual and mak[e] the law applicable to him alone.” Id.

This system was untenable because it made everyone in the city

subject not to law but to “the uncontrolled will of temporary

local authorities.” Id. Because the nuisance determination was

based solely on the opinion of the city council, in this

instance the city was functioning as a government of men, not

laws.4 It was trying to use its “police power of abatement” to

create law and call something a nuisance “which by no law [was]

4 Cf. Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J.,

dissenting) (“It is the proud boast of our democracy that we

have ‘a government of laws and not of men.’”).

known to be such.” See id. at 661. Parker thus holds that a

city may not act as a legislative, executive, and judicial

branch all in one to suddenly decide that private property is a

nuisance and tear it down by force.

Donohoe v. Fredlock, 79 S.E. 736 (W. Va. 1913), upon which

defendants also rely, likewise presented a situation where a

city attempted to tear down private property without court

involvement on the purported power of its just-made-up law (the

“law” of the opinion of the city council). There, the city

council of the City of Elkins decided a certain fence was a

nuisance, gave the owner “a few hours” to remove it, and, when

that time expired, directed the police to remove it and bill the

property owner for the cost of doing so. Id. at 736. Citing

Parker, the court disapproved of these “summary proceedings.”

Id. at 736-38. The city did not claim that the fence was a

nuisance under a statute or the common law, but, as in Parker,

only under the law of “because I said so.”

ii. Nuisance Per Se

“A nuisance per se has been generally defined as an act,

occupation, or structure which is a nuisance at all times and

under any circumstances, regardless of location or

surroundings.” Duff v. Morgantown Energy Assocs., 421 S.E.2d

253, 257 n.8 (W. Va. 1992); Harless v. Workman, 114 S.E.2d 548,

548 (W. Va. 1960). “[A] lawful business or a business

authorized to be conducted by the government cannot constitute a

nuisance per se.” Burch v. Nedpower Mount Storm, LLC, 647

S.E.2d 879, 892 (W. Va. 2007). There are varying degrees of

strictness with which the term “nuisance per se” may be used.

See Frye v. McCrory Stores Corp., 107 S.E.2d 378, 382 (W. Va.

1959) (quoting 66 C.J.S. Nuisances § 9 as follows: “The lawful

and proper use of property or conduct of business does not

ordinarily create an actionable nuisance, and is never a

‘nuisance per se’ in the strict sense of that term.”). “[A]n

act involving culpable and unlawful conduct causing

unintentional harm” constitutes an “absolute nuisance,” which is

generally synonymous with a nuisance per se. See 66 C.J.S.

Nuisances § 3.

In Harless, the “operation by the defendant of a coal

loading tipple and a coal crusher” was not a nuisance per se.

114 S.E.2d at 549, 556. The court stated,

Such business enterprise was not unlawful in itself,

it did not constitute a nuisance per se, and the

resultant injuries of which plaintiffs complain were

not inflicted unlawfully, wilfully or wantonly. The

business was not concerned with a substance or product

inherently dangerous or deleterious to the health of

human beings.

Id. at 556.

In State ex rel. Ammerman v. City of Philippi, the court

noted that a tire recapping business is not a nuisance per se:

“No doubt some noises and some odors obnoxious to some

individuals result therefrom. This is not sufficient, however,

to constitute a business a nuisance per se.” 65 S.E.2d 713,

713–16 (W. Va. 1951). The city there had an ordinance making

the ability to “erect or operate” any of several enumerated

businesses “or shop of a like kind” subject to the approval of

the city council on a case-by-case basis in the city council’s

discretion. Id. at 714-15. The lack of meaningful standards

bounding the city council’s discretion allowed for the exercise

of power unmoored from any actual law:

Sole discretion is attempted to be vested in the city

council, which it may exercise in the interest of a

favored applicant or against the interest of an

unfavored one. The value of the property of one

citizen could be diminished or destroyed to the

advantage of another property owner. Power granted a

municipality to regulate is not power to destroy.

Such power does not accord with due process of law.

Id. at 715 (emphasis added).

The court there looked to Donohoe as a similar case of a

municipality claiming the power to abate as a nuisance anything

it deemed to be one in its sole discretion and noted that, as in

Donohoe, there was no statute or ordinance to support the

nuisance determination. See id. at 716. Importantly, the

relevant conduct at issue was the tire capping business as a

whole because the city council’s denial of the permit prohibited

the construction of the building for the business. See id. at

713-14.

At issue in Duff was an alleged prospective nuisance

involving a Morgantown power plant that “was constructed to

produce steam for West Virginia University and electricity for

Monongahela Power Company.” Id. at 255. There was a plan in

place “to transport coal, gob, limestone and ash by truck into

and out of the power plant facility.” Id. Plaintiffs sought an

injunction against that plan. Id. The court noted that “the

heart of th[at] case” was “the prospective or anticipatory

nature of the alleged nuisance.” Id. at 257. Because the

alleged nuisance was anticipatory in nature, plaintiffs had to

prove that the execution of the trucking plan would be a

nuisance “beyond all ground of fair questioning.” Id. (citing

Syl. Pt. 3, Chambers v. Cramer, 38 S.E. 691 (W. Va. 1901)). In

holding that plaintiffs had not met their burden, the court

noted, “Clearly, trucking is not a nuisance per se.” Id. at

260.

Similarly, Burch involved prospective relief. Homeowners

sought “to permanently enjoin [the defendants] from constructing

and operating [a] wind power facility.” Burch, 647 S.E.2d at

885. After noting that “a lawful business or a business

authorized to be conducted by the government cannot constitute a

nuisance per se,” the court concluded that the “wind power

facility cannot be considered a nuisance per se.” Id. at 892-

93. It was the operation of a wind facility as a whole that was

alleged to be a nuisance, and the remedy sought was to stop the

business before it even started. Because the business as a

whole was lawful and government-authorized, it could not be a

nuisance per se.

b. More Than Two Paths to Municipal Standing

Having carefully reviewed the West Virginia case law upon

which defendants rely, the court disagrees with the rule that

defendants synthesize. Specifically, the court disagrees that

West Virginia municipalities lack standing to sue to abate a

public nuisance unless it is (1) a nuisance per se or (2) a

nuisance per ordinance. West Virginia law leaves courtroom

doors open to municipalities to seek relief in a manner

consistent with due process for that which constitutes a public

nuisance under law. What West Virginia law forbids is summary

municipal abatement of a purported nuisance that is not such

under any law or is only a private nuisance.5

Parker is the anchor for the case law upon which defendants

rely. In contrast with this case, the municipality in Parker

sought to abate a nuisance summarily and on the exclusive

strength of its own declaration that something constituted a

nuisance (in other words, on the strength no actual law). To

5 The dye works and the fence in Parker and Donohoe,

respectively, would seem to be private nuisances, if nuisances

at all.

the extent that plaintiffs here rely on applicable nuisance law

other than their own declaration that defendants’ conduct

constitutes a nuisance (such as the common law), Parker does not

apply.

This case does not present the same concerns animating the

Parker decision. The municipalities here are not attempting to

1. “make the law and enforce it at the same time in

individual cases,” Parker, 79 S.E. at 662;

2. bypass the courts and deny defendants due process;

3. “arbitrarily singl[e] out a lawful business . . .

and mak[e] the law applicable to [it] alone,” id.;

or

4. subject defendants to “the uncontrolled will of

temporary local authorities,” id.

Extending Parker to the facts here stretches Parker too far.

The Supreme Court of Appeals of West Virginia has apparently not

had occasion to address a challenge to municipal standing like

this one, which challenges not the right of municipalities to

act peremptorily on their councilmembers’ opinions of what a

nuisance is and order its abatement, but rather, the right of

municipalities to seek judicial redress to abate something

alleged to be a common law public nuisance. The Parker court

acknowledged that the City of Fairmont had the power to “abate

what the law holds to be a nuisance.” See id. at 661-62. That

is what plaintiffs seek to do here. Even if Parker meant only

nuisances per se, such a limitation should not be read to apply

beyond cases like Parker.6

Parker had less to do with a municipality’s power to seek

judicial redress for a violation of existing law than it had to

do with a municipality’s power to make up nuisance law and then

immediately issue an abatement order, bypassing the courts. If

localities truly do not have standing to sue to abate nuisances

unless they are nuisances per se (under defendants’ definition7)

or nuisances pursuant to an ordinance, it would seem that

localities could not sue to abate the following without an

applicable ordinance:

1. a ranch where cattle are allowed to roam across

public roads 99% of the time;

2. a hotel with a bed bug infestation 99% of the time;

or

3. a driving range with a faulty net that allows golf

balls to escape and hit pedestrians 99% of the time.

6 For similar reasons, this case contrasts sharply with Donohoe.

7 Defendants suggest that in order to be a nuisance per se, acts

not only must be unlawful, but specifically declared a nuisance

under the law. The court’s opinion is that illegal actions can

be nuisances per se without such a specific declaration, but for

purposes of the following examples, adopts defendants’ nuisance

per se rule.

None of these would qualify as nuisances per se under

defendants’ definition because they are generally lawful

businesses and do not constitute a nuisance at all times (1% of

the time, they are not a nuisance). So, even if these

conditions constitute a public nuisance under West Virginia law,

municipalities cannot sue to abate them under defendants’

municipal standing rule unless there is a statute or ordinance

specifically declaring them to be a nuisance.

c. Illegal Acts As Public Nuisance Per Se

Even if defendants are correct that municipalities have no

standing to sue in the absence of a nuisance per se or a

nuisance per ordinance, plaintiffs still have standing because

their claims arise from alleged illegal conduct that, if proved,

may constitute a nuisance per se.8 The court finds plaintiffs’

framing the relevant conduct for the nuisance per se analysis

more persuasive than defendants’ framing. Thus, the relevant

conduct is the alleged violations of law in connection with

defendants’ distribution of pharmaceutical drugs, not the lawful

business of pharmaceutical drug distribution in general.

The cases suggest that the scope of the activity sought to

be abated defines the relevant conduct. In Burch, the main case

8 As to nuisance per ordinance, defendants are correct (and

plaintiffs appear to concede) that plaintiffs did not pass an

ordinance of general applicability to serve as the law grounding

their nuisance claim.

upon which defendants rely to conclude that the lawfulness of a

business precludes its ability to create a nuisance per se, the

“remedy sought” was “an injunction against the construction and

operation of [a] wind power facility.” 647 S.E.2d at 892. It

was the facility itself that the court determined not to be a

nuisance per se. Id. at 893 (“[A]ppellees’ wind power facility

cannot be considered a nuisance per se.”). The court in Burch

had occasion to discuss nuisances per se only by reference to

the remedy sought, which was to stop the entire wind turbine

project before it even started.

Because the remedy here is much more limited, Burch is not

on point. Unlike the plaintiffs in Burch, plaintiffs here do

not seek to stop defendants’ distribution operations in their

entirety. The action here is much more targeted. It seeks a

remedy for a subset of defendants’ operations: the allegedly

illegal subset. Plaintiffs frame the nuisance per se as

defendants’ alleged violations of law in connection with

prescription drug distribution. They seek abatement of those

violations; they do not attack the very existence of defendants,

as the plaintiffs in Burch did.9

9 Similarly, in Parker, the city sought to close the dye works

entirely. In Ammerman, the city denied a permit for the

construction of the business (so it could not even begin to

operate). In Harless, although it appears that plaintiffs

sought damages, not an injunction shutting down defendant’s coal

crushing operation, the operation as a whole was the alleged

Moreover, the implications of defendants’ reading of West

Virginia municipal standing law are concerning. If defendants

are right, and a company’s engaging in a generally legal line of

business “conclusively establishes that their business activity

cannot constitute a per se nuisance,” (ECF No. 358, at 4), then

it would seem that none of the following can be a nuisance per

se:

1. a dental office that allows unlicensed staff to

perform root canals when the dentist is on vacation;

2. a local restaurant’s habitual service of alcohol to

minors without checking identification; or

3. a local lawn maintenance company that applies

illegal pesticides throughout the city.

Because the overall businesses of practicing dentistry, running

a restaurant, and operating a lawn maintenance company are

lawful, illegal acts that further those businesses would be

shielded from the law of public nuisance regardless of the

threat to public health.

nuisance, and a jury found that the defendant had “exercised due

care and observed reasonable precautions to minimize the problem

of coal dust necessarily incident to the operation of his lawful

business enterprise.” 114 S.E.2d at 556. By contrast, here

plaintiffs allege specific illegal conduct and seek to abate the

results of that conduct. In Duff, trucking—not operation of a

power plant—was the relevant activity for the nuisance per se

analysis, but that was because only that aspect of the business

was at issue.

In the absence of West Virginia case law that is on point,

the court finds instructive the case of Courtland Company v.

Union Carbide Corporation, No. 2:19-CV-00894, 2020 WL 5047131,

at *12 (S.D.W. Va. Aug. 26, 2020). There, plaintiffs alleged a

public nuisance per se against Union Carbide for the maintenance

of a rail yard and landfill as open dumps. Id. at *6. The

lawfulness of Union Carbide’s general line of business was not

in dispute. But the court there held that the plaintiff stated

a claim for public nuisance per se because it alleged illegal

actions in relation to certain of Union Carbide’s business

operations:

Courtland alleges, in its complaint, that UCC has

operated the Filmont Landfill and the UCC Railyard as

“open dumps,” by collecting, processing, and disposing

of both solid waste and hazardous waste without the

required permit and without complying with applicable

waste disposal standards, which makes both properties

public nuisances per se under federal and state laws.

Id. at *12.

The West Virginia statute prohibiting open dumps does not

expressly declare that an open dump is a nuisance; it simply

declares the maintenance of one illegal. See W. Va. Code Ann.

§ 22-15-10. The same is true of the federal statutes. See 42

U.S.C. §§ 6944-6945. The court did not find such a specific

declaration necessary. Instead, the allegations of illegal

conduct that “operate[d] to hurt or inconvenience an indefinite

number of persons” sufficiently stated a cause of action for

public nuisance per se. Courtland, 2020 WL 5047131, at *9. The

general lawfulness of Union Carbide’s business did not preclude

it from committing a nuisance per se.

Although the alleged illegal conduct here is not as obvious

as the maintenance of an open dump, the same principles apply

and lead the court to find that the alleged illegal acts in

relation to defendants’ prescription drug distribution, if

proved, may constitute a nuisance per se.

Iv. Conclusion

For the reasons expressed above, defendants’ motion for

summary judgment (ECF No. 238) is DENIED.

The Clerk is directed to send a copy of this Memorandum

Opinion and Order to those counsel of record who have registered

to receive an electronic NEF.

IT IS SO ORDERED this 3lst day of March, 2021.

ENTER:

Raut O Dabo

David A. Faber

Senior United States District Judge

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