throbber

`
`
`
`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 1 of 144
`
`
`
`
`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 19-1019
`
`
`JOYCE MCKIVER; DELOIS LEWIS; DAPHNE MCKOY; ALEXANDRIA
`MCKOY; ANTONIO KEVIN MCKOY; ARCHIE WRIGHT, JR.; TAMMY
`LLOYD; DEBORAH JOHNSON; ETHEL DAVIS; PRISCILLA DUNHAM,
`
`
`Plaintiffs - Appellees,
`
`
`
`and
`
`
`DENNIS MCKIVER, JR.; LAJUNE JESSUP; DON LLOYD, Administrator of the
`Estate of Fred Lloyd; TERESA LLOYD; TANECHIA LLOYD; CARL LEWIS;
`ANNETTE MCKIVER; KAREN MCKIVER; BRIONNA MCKIVER; EDWARD
`OWENS; DAISY LLOYD; A. (DAUGHTER); A. (SON),
`
`
`Plaintiffs,
`
`
`v.
`
`MURPHY-BROWN, LLC, d/b/a Smithfield Hog Production Division,
`
`
`Defendant – Appellant.
`
`
`------------------------------
`
`AMERICAN FARM BUREAU FEDERATION; NATIONAL PORK
`PRODUCERS COUNCIL; NORTH CAROLINA
`FARM BUREAU
`FEDERATION; NORTH CAROLINA PORK COUNCIL; NORTH AMERICAN
`MEAT INSTITUTE; NATIONAL ASSOCIATION OF MANUFACTURERS;
`GROCERY MANUFACTURERS ASSOCIATION;
`CHAMBER OF
`COMMERCE OF THE UNITED STATES OF AMERICA; NATIONAL TURKEY
`FEDERATION; NATIONAL CHICKEN COUNCIL; JOEY D. CARTER; JOEY
`CARTER FARMS; WILLIAM R. KINLAW; KINLAW FARMS, LLC; PAUL
`STANLEY; PAGLE CORP.; GREENWOOD LIVESTOCK, LLC,
`
`
`Amici Supporting Appellant.
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 2 of 144
`
`
`LAW PROFESSORS WITH EXPERTISE IN TORT AND REGULATORY LAW;
`AMERICAN ASSOCIATION FOR JUSTICE; NORTH CAROLINA JUSTICE
`CENTER; HUMANE SOCIETY OF THE UNITED STATES; PUBLIC JUSTICE,
`P.C.; FOOD & WATER WATCH; WATERKEEPER ALLIANCE, INC.; NORTH
`CAROLINA
`ENVIRONMENTAL
`JUSTICE
`NETWORK;
`RURAL
`EMPOWERMENT ASSOCIATION FOR COMMUNITY HELP; DR.
`LAWRENCE CAHOON; ELIZABETH CHRISTENSON; DR. BRETT
`DOHERTY; MIKE DOLAN FLISS; DR. JILL JOHNSTON; BOB MARTIN; DR.
`SARAH RHODES; DR. ANA MARIA RULE; DR. SACOBY WILSON; DR.
`COURTNEY WOODS,
`
`
`Amici Supporting Appellee.
`
`
`
`
`Appeal from the United States District Court for the Eastern District of North Carolina, at
`Wilmington. W. Earl Britt, Senior District Judge. (7:14-cv-00180-BR; 5:15-cv-
`00013.BR)
`
`
`
`
`Argued: January 31, 2020
`
`
`
`Decided: November 19, 2020
`
`
`
`Before WILKINSON, AGEE and THACKER, Circuit Judges.
`
`
`Affirmed in part, vacated and remanded in part by published opinion. Judge Thacker wrote
`the opinion, in which Judge Wilkinson concurred. Judge Wilkinson wrote a concurring
`opinion. Judge Agee wrote an opinion concurring in part and dissenting in part.
`
`
`
`
`
`
`ARGUED: Stuart Alan Raphael, HUNTON ANDREW KURTH, LLP, Washington, D.C.,
`for Appellant. Tillman J. Breckenridge, PIERCE BAINBRIDGE BECK PRICE &
`HECHT, LLP, Washington, D.C., for Appellee. ON BRIEF: Robert M. Tata,
`Washington, D.C., Trevor S. Cox, Kevin S. Elliker, David M. Parker, HUNTON
`ANDREWS KURTH LLP, Richmond, Virginia, for Appellant. Mona Lisa Wallace, John
`Hughes, WALLACE AND GRAHAM, P.A., Salisbury, North Carolina; Tanya Fridland,
`PIERCE BAINBRIDGE BECK PRICE & HECHT, LLP, Washington, D.C., for
`Appellees. Michael B. Kimberly, Washington, D.C., Timothy S. Bishop, Brett E. Legner,
`Jed Glickstein, Chicago, Illinois, Michael B. Kimberly, MAYER BROWN LLP,
`Washington, D.C.; Ellen Steen, Travis Cushman, AMERICAN FARM BUREAU
`FEDERATION, Washington, D.C.; Phillip Jacob Parker Jr., NORTH CAROLINA FARM
`
`
`
`2
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 3 of 144
`
`BUREAU FEDERATION, Raleigh, North Carolina; Michael C. Formica, NATIONAL
`PORK PRODUCERS COUNCIL, Washington, D.C., for Amici The American Farm
`Bureau Federation, National Pork Producers Council, North Carolina Farm Bureau
`Federation, and North Carolina Pork Council. Daryl L. Joseffer, Michael B. Schon,
`UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C., for Amicus
`Chamber of Commerce of the United States of America. Sean Marotta, HOGAN
`LOVELLS US LLP, Washington, D.C., for Amici Chamber of Commerce of the United
`States of America, North American Meat Institute, National Association of Manufacturers,
`Grocery Manufacturers Association, National Turkey Federation, and National Chicken
`Council. Matthew Nis Leerberg, Kip D. Nelson, Troy D. Shelton, FOX ROTHSCHILD
`LLP, Raleigh, North Carolina, for Amici Joey D. Carter, Joey Carter Farms, William R.
`Kinlaw, Kinlaw Farms, LLC, Paul Stanley, Pagle Corp., and Greenwood Livestock, LLC.
`Steven M. Virgil, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem,
`North Carolina, for Amici Law Professors with Expertise in Tort and Regulatory Law.
`Elise Sanguinetti, President, Jeffrey R. White, AMERICAN ASSOCIATION FOR
`JUSTICE, Washington, D.C.; David Arbogast, ARBOGAST LAW, San Carlos,
`California, for Amicus American Association for Justice. Elizabeth Haddix, Mark
`Dorosin, JULIUS L. CHAMBERS CENTER FOR CIVIL RIGHTS, Carrboro, North
`Carolina, for Amici North Carolina Environmental Justice Network and the Rural
`Empowerment Association for Community Help. Emily P. Turner, NORTH CAROLINA
`JUSTICE CENTER, Raleigh, North Carolina; J. Jerome Hartzell, HARTZELL &
`WHITEMAN, LLP, Raleigh, North Carolina, for Amicus North Carolina Justice Center.
`Anna Frostic, Laura Fox, Peter Brandt, THE HUMANE SOCIETY OF THE UNITED
`STATES, Washington, D.C., for Amicus The Humane Society of the United States.
`Marianne Engelman-Lado, YALE SCHOOL OF FORESTRY & ENVIRONMENTAL
`STUDIES, New Haven, Connecticut; Peter Hans Lehner, Alexis Andiman,
`EARTHJUSTICE, New York, New York, for Amici Dr. Lawrence B. Cahoon, Elizabeth
`Christenson, Dr. Brett Doherty, Mike Dolan Fliss, Dr. Jill Johnston, Bob Martin, Dr. Sarah
`Rhodes, Dr. Ana María Rule, Dr. Sacoby Wilson, and Dr. Courtney Woods. Tarah
`Heinzen, FOOD & WATER WATCH, Washington, D.C., for Amicus Food & Water
`Watch. David S. Muraskin, Jessica L. Culpepper, Kellan Smith, PUBLIC JUSTICE, P.C.,
`Washington, D.C., for Amici Public Justice and Food & Water Watch. Chandra T. Taylor,
`Blakely Hildebrand, Nick Jimenez, SOUTHERN ENVIRONMENTAL LAW CENTER,
`Chapel Hill, North Carolina, for Amicus Waterkeeper Alliance.
`
`
`
`
`
`
`
`3
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 4 of 144
`
`THACKER, Circuit Judge:
`
`Murphy-Brown, LLC (“Appellant”) challenges a jury verdict against it awarding
`
`compensatory and punitive damages to neighbors of its hog production facilities. Those
`
`neighbors, residents of rural Bladen County, North Carolina, sought relief under state
`
`nuisance law from odors, pests, and noises they attribute to farming practices Appellant
`
`implemented at an industrial-scale hog feeding farm. Having heard evidence of those
`
`harms and Appellant’s role in creating them, a jury returned a verdict in favor of the
`
`neighbors, to the tune of $75,000 in compensatory damages per plaintiff, along with a total
`
`of $5 million in punitive damages, which was subsequently reduced to $2.5 million due to
`
`North Carolina’s punitive damages cap.
`
`Appellant asserts seven reasons why we should overturn the decision below and
`
`grant a new trial. For the reasons detailed below, we affirm the jury’s verdict as to liability
`
`for compensatory and punitive damages, but we vacate the award of punitive damages and
`
`remand for a rehearing on that issue based on our evidentiary standards.
`
`I.
`
`A.
`
`Appellant is a commercial hog producer, who contracted with third-party “grower”
`
`Kinlaw Farms LLC (“Kinlaw Farms”) to operate an industrial hog feeding facility in
`
`Bladen County, North Carolina.1 Appellant is a single-member LLC of a wholly owned
`
`
`1 Appellant is a vertically integrated hog producer, which means Appellant farms
`hogs on an industrial scale by controlling each stage of pork production from the raising
`and feeding of the livestock to slaughter and packaging for sale. Appellant operates in part
`(Continued)
`
`
`
`4
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 5 of 144
`
`subsidiary of Smithfield Foods, Inc. (“Smithfield”), which is in turn owned by WH Group
`
`Limited (“WH Group”), a publicly traded company based in Hong Kong.
`
`Industrial farming operators like Appellant require their contract growers like
`
`Kinlaw Farms to comply with specific policies. The controlling industrial farmer issues
`
`detailed mandates to its growers in order to ensure consistency across their various contract
`
`operations. Appellant imposes standard operating procedures for all of its contract
`
`growers. Specifically, Appellant (1) directs grower management procedures; (2) mandates
`
`design and construction of operations; (3) can require the use of technological
`
`enhancements; (4) can require capital investments; (5) dictates how many of its hogs are
`
`to be placed at a given operation; and (6) controls hog waste management systems.
`
`Joyce McKiver, Delois Lewis, Daphne McKoy, Alexandria McKoy, Antonio Kevin
`
`McKoy, Archie Wright, Jr., Tammy Lloyd, Deborah Johnson, Ethel Davis, and Priscilla
`
`Dunham (collectively, “Appellees”) are North Carolina residents who owned properties
`
`near Kinlaw Farms. Appellees are a subset of a number of plaintiffs (“Plaintiffs”) who
`
`sued Appellant for alleged nuisances associated with the hog operations at Kinlaw Farms.
`
`The operation at Kinlaw Farms annually maintained nearly 15,000 of Appellant’s
`
`hogs. These hogs generated approximately 153,000 pounds of feces and urine daily.
`
`Kinlaw Farms housed the hogs in hog sheds that used vents and fans to move fumes from
`
`the hogs to the outside of the building. By design, the hog waste in the sheds fell through
`
`
`by supplying livestock and feed to contractors known as “growers” who house and care for
`Appellant’s hogs for certain portions of the animals’ life cycle, subject to Appellant’s
`control.
`
`
`
`5
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 6 of 144
`
`slats in the flooring, where the waste was then stored in three open-air pits within view of
`
`Appellees’ homes. These pits or “lagoons” contained millions of gallons of hog waste.
`
`As part of its standard operating procedures for contract growers, Appellant wrote
`
`the policy dictating how Kinlaw Farms disposed of the waste from Appellant’s hogs. At
`
`Appellant’s direction, Kinlaw Farms used what is known as the lagoon-and-sprayfield
`
`method for hog waste disposal. Kinlaw Farms periodically drained waste from the lagoons
`
`and spread it across open “sprayfields” on the Kinlaw Farms property. Approximately
`
`eight million gallons of hog feces were sprayed in the air annually at Kinlaw Farms.
`
`Appellant was aware of the proximity of Kinlaw Farms to neighboring residences
`
`because Appellant’s corporate predecessor had sited and designed the facility, and
`
`Appellant routinely visited the Kinlaw Farms property for inspections. Notably, because
`
`of its operations’ proximity to surrounding properties, Appellant instructed its growers to
`
`refrain from applying the hog waste to sprayfields “out of respect for [their] neighbors” if
`
`the contractor was aware that neighbors planned to have guests over for weddings or
`
`cookouts. Despite this policy, spraying of hog waste in summer months occurred at Kinlaw
`
`Farms as regularly as three to five days a week for an average of six hours per day.
`
`Additionally, through its contractual arrangement, Appellant was solely responsible
`
`for the Kinlaw Farms trucking schedule and for the decision of where to site the facility’s
`
`entrance road that passed near Appellees’ properties. Trucks frequented Kinlaw Farms on
`
`a regular basis to deliver new hogs, take away live hogs, and pick up dead hogs. Appellant
`
`set Kinlaw Farm’s delivery and pickup schedules for trucks at an all-day, all-night pace.
`
`
`
`6
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 7 of 144
`
`As an example, on one night in 2016, at least 12 trucks passed through to the Kinlaw Farms
`
`property between midnight and six in the morning.
`
`At Appellant’s direction, hog carcasses pending pickup were stored in “dead boxes,”
`
`dumpsters placed in open fields on the Kinlaw Farms property. Hog carcasses would pile
`
`up and rot in these dumpsters in open fields until collection of the carcasses was scheduled.
`
`These dead boxes attracted dozens of buzzards and flies that would accumulate around the
`
`dead boxes and frequent Appellees’ neighboring properties.
`
`B.
`
`For decades predating the lawsuit at issue here, agricultural experts and lay media
`
`alike researched and reported environmental effects associated with industrial hog
`
`operations in Eastern North Carolina. Indeed, Appellant itself collected and stored
`
`hundreds of newspaper articles documenting neighbors’ complaints about lagoon-and-
`
`sprayfield industrial hog operations and was aware of scientific studies and state
`
`government documents reporting the effects of odor, including upper respiratory and
`
`gastrointestinal ailments, on neighbors of concentrated animal feeding operations like
`
`Kinlaw Farms. For years, Appellant defended its practices against critics in North Carolina
`
`communities and public offices, and routinely opposed regulations that would require
`
`lagoon-and-sprayfield operations to curtail their effects on neighbors. In particular,
`
`Appellant’s former director Don Butler admitted that Appellant was aware of Bladen
`
`County community complaints about unabated lagoon-and-sprayfield hog operations of the
`
`
`
`7
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 8 of 144
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`kind Appellant prescribed to its growers -- specifically that individuals were complaining
`
`about “odor, flies, noise, trucks, [and] interference with their quality of life.” J.A. 7466.2
`
`Although there is no evidence of complaints made directly to Appellant about
`
`Kinlaw Farms specifically, Kinlaw Farms did receive complaints from one plaintiff in this
`
`suit and another neighbor, who also complained about Kinlaw Farms to the North Carolina
`
`Department of Environment and Natural Resources. The record demonstrates that all
`
`parties agreed Kinlaw Farms consistently followed Appellant’s policies, compliance which
`
`Appellant actively monitored. Yet before the recent nuisance suits, Appellant had neither
`
`monitored odor at any operation (including Kinlaw Farms), nor terminated a grower
`
`because of complaints about odor.
`
`C.
`
`Reacting to mounting community pressure, in 1997, North Carolina banned new
`
`lagoon-and-sprayfield hog operations. See N.C. Sess. Laws 1997–458. Existing farms
`
`including Kinlaw Farms were grandfathered in and not subjected to the ban, but the North
`
`Carolina legislature did bind the state’s Department of Agriculture to “develop a plan to
`
`phase out the use of . . . lagoons and sprayfields as primary methods of disposing of animal
`
`waste at swine farms.” See id. § 12.4(a). And in 1999, North Carolina’s governor
`
`announced an intention to end lagoon-and-sprayfield operations.
`
`The following year, Smithfield, Appellant’s parent company, signed an agreement
`
`with the Attorney General of North Carolina to fund research for replacement technologies
`
`
`2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
`
`
`
`8
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 9 of 144
`
`and to implement technologies found to be feasible (the “AG Agreement”). In 2006, the
`
`scientific expert designated by the AG Agreement identified alternative abatement
`
`technologies but, applying the AG Agreement’s criteria, the designee did not deem those
`
`technologies economically feasible at that time for existing hog farms. This 2006
`
`feasibility analysis did not consider Smithfield’s profits or ability to pay.
`
`Appellant’s growers were not expected to pay for waste management improvements
`
`on their own. Because of the extensive control Appellant maintained over its contract
`
`growers -- and the control in turn exerted over Appellant by Smithfield and its parent WH
`
`Group -- Appellant’s president explained it had the power to implement abatement
`
`technologies at its growers’ operations by prescribing those technologies and getting
`
`money from the parent companies to help pay for them. Due to the integrated nature of
`
`Appellant’s farming operations, company procedures would have Appellant receive
`
`funding from the parent companies for waste management improvements it might choose
`
`to implement.
`
`D.
`
`In 2013, Appellant and several of its contract growers, including Kinlaw Farms,
`
`were sued in North Carolina state court by neighbors of their hog operations, including
`
`Appellees. As Appellees explained, “after learning the full extent of [Appellant’s] control
`
`over the operations causing the nuisance and the growers’ powerlessness to address it,” the
`
`plaintiffs dismissed those state actions and refiled suit in federal court in the Eastern
`
`District of North Carolina in 2014, naming Appellant only. Appellees’ Br. 16.
`
`
`
`9
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 10 of 144
`
`The district court for the Eastern District of North Carolina coordinated 26 related
`
`cases filed by neighbors of Appellant’s various hog operations as part of a Master Case
`
`docket.3 During the Master Case proceedings, the district court issued a number of
`
`decisions, including denying Appellant’s motion for judgment on the pleadings based on
`
`failure to join its contract farmers including Kinlaw Farms as necessary parties. The court
`
`also denied Appellant’s motion to dismiss claims for noneconomic damages and motion
`
`for partial summary judgment on the plaintiffs’ punitive and annoyance damage claims.
`
`On the other hand, the court granted the plaintiffs’ motion for partial summary judgment
`
`on Appellant’s statute of limitations defense.
`
`In the fall of 2017, the district court ordered trials to move forward from the Master
`
`Case docket, with Appellees’ case being first in line. During the trial, the district court
`
`denied Appellant’s motion to bifurcate the punitive damages phase from the liability phase
`
`of the trial and also denied Appellant’s evidentiary objections as to proof of profits,
`
`executive compensation of its parent companies, and certain expert opinions. At the close
`
`of all evidence, the district court denied Appellant’s motion for judgment as a matter of
`
`law as to (i) the sufficiency of evidence to support punitive damages; (ii) vicarious liability;
`
`
`3 In all, this opinion refers to three sets of plaintiffs involved in suits against
`Appellant. Complainants in the Master Case Docket cases were neighbors of Appellant’s
`various hog operations. Among this broadest set of neighbor plaintiffs were our Plaintiffs,
`neighbors of Kinlaw Farms whose claims related particularly to Appellant’s operations
`there. Appellees are a subset of the Plaintiffs who originally brought suit against Appellant
`over the Kinlaw Farms operation.
`
`
`
`
`
`10
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 11 of 144
`
`(iii) the statute of limitations; and (iv) evidence supporting fear of future injuries. And,
`
`before submitting the case to the jury, the district court rejected Appellant’s proposed jury
`
`instructions relating to the (i) statute of limitations; (ii) scope of available compensatory
`
`damages; and (iii) vicarious liability for contractors.
`
`In Spring 2018, the jury returned a verdict awarding $75,000 in compensatory
`
`damages to each of the ten Appellees and also awarding $5 million in punitive damages.
`
`The district court then applied North Carolina’s punitive damages cap, reducing the total
`
`punitive award to $2.5 million. See N.C. Gen. Stat. § 1D-25(b) (limiting per-plaintiff
`
`punitive damages to the greater of $250,000 or treble compensatory damages); Rhyne v. K-
`
`Mart Corp., 594 S.E.2d 1, 5 (N.C. 2004) (explaining N.C. Gen. Stat. § 1D-25 “applies to
`
`limit recovery of punitive damages per each plaintiff”). Appellant timely appealed,
`
`challenging each of the rulings noted above.
`
`Following the judgment, Appellant terminated its relationship with Kinlaw Farms
`
`and withdrew its hogs from that facility, alleging in the termination letter that Kinlaw
`
`Farms failed to “comply with standard operating procedures.” J.A. 9593 (quoting May 4,
`
`2018 Kinlaw Letter at 2, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C.
`
`Sept. 28, 2018), ECF No. 324-2). On appeal, Appellant asserts, “[t]he jury’s nuisance
`
`finding effectively required that Kinlaw Farm cease operations until any nuisance is
`
`abated.” Appellant’s Br. 12.
`
`II.
`
`Appellant raises seven purported errors on appeal, each of which Appellant
`
`contends will require a new trial. We address each in turn.
`
`
`
`11
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 12 of 144
`
`A.
`
`Necessary and Indispensable Party
`
`First, Appellant argues that Kinlaw Farms was a necessary and indispensable party
`
`
`
`to this suit, and thus, should have been joined pursuant to Federal Rule of Civil Procedure
`
`19. Appellant presented this argument to the district court in both a motion pursuant to
`
`Federal Rule of Civil Procedure 12(c) and in a post-trial motion. The district court rejected
`
`Appellant’s contentions on each occasion.
`
`1.
`
`We review a district court’s Rule 19 rulings for an abuse of discretion. Nat’l Union
`
`Fire Ins. Co. of Pittsburgh v. Rite Aid of S.C., Inc., 210 F.3d 246, 250 (4th Cir. 2000)
`
`(citation omitted). Generally, “[t]he inquiry contemplated by Rule 19 is a practical one,”
`
`properly “addressed to the sound discretion of the trial court.” Coastal Modular Corp. v.
`
`Laminators, Inc., 635 F.2d 1102, 1108 (4th Cir. 1980) (citations omitted).
`
`2.
`
`Rule 19 sets up “a two-step inquiry.” Owens-Illinois, Inc., v. Meade, 186 F.3d 435,
`
`440 (4th Cir. 1999) (citation omitted). We ask “first whether the nonjoined party is
`
`necessary under Rule 19(a) and then whether the party is indispensable under Rule 19(b).”
`
`Gunvor SA v. Kayablian, 948 F.3d 214, 218 (4th Cir. 2020) (citation omitted).
`
`Pursuant to Rule 19(a), a party is necessary if
`
`
`in that person’s absence, the court cannot accord
`complete relief among existing parties; or
`that person claims an interest relating to the subject of
`an action and is so situated that disposing of the action
`in the person’s absence may: (i) as a practical matter
`12
`
`(A)
`
`(B)
`
`
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 13 of 144
`
`impair or impede the person’s ability to protect the
`interest; or (ii) leave an existing party subject to a
`substantial risk of incurring double, multiple, or
`otherwise inconsistent obligations because of the
`interest.
`
`Fed. R. Civ. P. 19(a). A necessary party should be ordered into the action. See Owens-
`
`Illinois, Inc., 186 F.3d at 440. But “[w]hen a party cannot be joined because its joinder
`
`destroys diversity, the court must determine whether the proceeding can continue in its
`
`absence or whether it is indispensable pursuant to Rule 19(b) and the action must be
`
`dismissed.” Id. (citation omitted).
`
`Rule 19(b) provides guidance on the identification of an indispensable party: “If a
`
`person who is required to be joined if feasible cannot be joined, the court must determine
`
`whether, in equity and good conscience, the action should proceed among the existing
`
`parties or should be dismissed.” Fed. R. Civ. P. 19(b). In this regard, we are given the
`
`following nonexclusive factors to consider:
`
`(1) the extent to which a judgment rendered in the person’s
`absence might prejudice that person or the existing parties;
`(2) the extent to which any prejudice could be lessened or
`avoided by: (A) protective provisions in the judgment; (B)
`shaping the relief; or (C) other measures;
`(3) whether a judgment rendered in the person’s absence would
`be adequate; and
`(4) whether the plaintiff would have an adequate remedy if the
`action were dismissed for nonjoinder.
`
`Id. “Courts are loath to dismiss cases based on nonjoinder of a party, so dismissal will be
`
`ordered only when the resulting defect cannot be remedied and prejudice or inefficiency
`
`will certainly result.” Owens-Illinois, Inc., 186 F.3d at 441 (citations omitted).
`
`
`
`13
`
`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 14 of 144
`
`Neither prong of Rule 19 is to be applied merely as a “procedural formula.” Home
`
`Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 433 (4th Cir. 2014) (quoting Provident
`
`Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119 n.16 (1968)). To the
`
`contrary, the “[d]ecisions must be made pragmatically, in the context of the substance of
`
`each case, and courts must take into account the possible prejudice to all parties, including
`
`those not before it.” Id. (citations and internal quotation marks omitted).
`
`3.
`
`Applying Rule 19(a), there is nothing before us to suggest that the district court
`
`could not have “accord[ed] complete relief among existing parties” in this suit without the
`
`addition of Kinlaw Farms, and Appellant does not so claim. Fed. R. Civ. P. 19(a)(1)(A).
`
`Nor does Appellant argue that it would be subject to multiple or inconsistent judgments.
`
`Fed. R. Civ. P. 19(a)(1)(B)(ii).
`
`Instead, Appellant argues “Kinlaw Farms has significant pecuniary and contractual
`
`interests threatened by this litigation.” Appellant’s Br. 55. This argument is aimed at the
`
`second prong of Rule 19(a)’s test -- whether a third party “claims an interest relating to the
`
`subject of an action” whose ability to protect that interest “as a practical matter” will be
`
`impaired or impeded if excluded from the existing suit. Fed. R. Civ. P. 19(a)(1)(B)(i). This
`
`aspect of the test “directs us to consider a non-joined party’s ability to protect its own
`
`interests.” Home Buyers Warranty Corp., 750 F.3d at 433.
`
`Appellant insists that Kinlaw Farms needed to be made a party to this suit in order
`
`to protect its own interests. Yet Kinlaw Farms did not seek to join the suit or otherwise
`
`“claim[ ] an interest relating to the subject of an action” before the district court, and
`14
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`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 15 of 144
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`Appellant did not assert a claim against Kinlaw Farms to bring the grower into the suit.
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`Fed. R. Civ. P. 19(a)(1)(B)(i). Unlike the instant case, our Rule 19(a) decisions Appellant
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`cites each involve a situation where the contracts or obligations of the “necessary” party
`
`were being interpreted or were otherwise directly at issue. See Home Buyers Warranty
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`Corp., 750 F.3d at 434 (determining third parties “actively contesting their liability in state
`
`court” under a contract and entitled to insurance by the defendants for construction defects
`
`like those alleged had “a natural interest in any adjudication of the terms of [the] contract”);
`
`Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 552–53 (4th Cir. 2006) (deeming
`
`necessary and indispensable the third party whose preferential hiring policy dictated the
`
`defendant casino operator’s conduct, where the court would be deciding the legality of the
`
`policy); Nat’l Union Fire Ins. Co. v. Rite Aid of S.C., Inc., 210 F.3d 246, 251 (4th Cir.
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`2000) (indicating that the court’s decision would “necessarily require it to interpret the
`
`notice provisions of the policy and other agreements” between the plaintiff and the absent
`
`party).
`
`“[E]ven if [an absent party] is alleged to have played a central role” in the action at
`
`issue, “and even if resolution of the action will require the court to evaluate the absent
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`party’s conduct,” that party “in many cases . . . will not have interests that warrant
`
`protection under Rule 19(a)(1)(B)(i).” Ward v. Apple Inc., 791 F.3d 1041, 1050 (9th Cir.
`
`2015). The interest in question should “be more than a financial stake, and more than
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`speculation about a future event.” Id. at 1051 (internal quotation marks omitted).
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`Here, the suit’s practical consequence for the third party, Kinlaw Farms, was
`
`Appellant’s termination of its grower relationship. But Appellant’s post-verdict
`15
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`

`

`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 16 of 144
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`termination of Kinlaw Farms was not a necessary or inevitable consequence of anything
`
`resolved in this suit. Though no doubt financially difficult for Kinlaw Farms, that
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`termination was not compelled by the court’s decision and cannot control Appellees’ case.
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`Appellant’s termination letter to Kinlaw Farms suggested that Kinlaw Farms failed to
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`“comply with standard operating procedures.” J.A. 9593 (quoting May 4, 2018 Kinlaw
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`Letter at 2, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C. Sept. 28,
`
`2018), ECF No. 324-2). But this is the exact opposite of what Appellant (and Appellees)
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`argued at trial, where both parties had contended that Kinlaw Farms followed Appellant’s
`
`policies to the letter.
`
`Nothing found by the jury in this case or mandated by the judgment required
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`Appellant’s termination of its relationship with Kinlaw Farms after the litigation was over.
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`The jury’s decision left Appellant free to continue its grower relationship with Kinlaw
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`Farms in a manner that respects the property rights of its neighbors if it so chose.
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`Appellant’s assessment of the costs and benefits of doing so -- and its business decision
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`based thereon -- cannot retroactively make Kinlaw Farms a necessary party.
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`And even assuming Kinlaw Farms was a necessary party, dismissal of a case is “a
`
`drastic remedy that should be employed only sparingly.” Gunvor SA, 948 F.3d at 219
`
`(quoting Home Buyers Warranty Corp., 750 F.3d at 433). Owing deference to the district
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`court’s determination under the abuse of discretion standard, we see no reason to hold that
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`Kinlaw Farms is a necessary party, let alone an indispensable one whose absence warrants
`
`dismissal. Appellant’s arguments that Kinlaw Farms is indispensable are cursory and do
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`not creditably address any of the Rule 19(b) factors, other than pointing out that Plaintiffs
`16
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`

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`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 17 of 144
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`could have brought this suit against Kinlaw Farms and Appellant in state court. There is
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`nothing to indicate that the judgment rendered is not adequate or that Kinlaw Farms’s
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`absence unfairly prejudices either Kinlaw Farms or Appellant. We therefore affirm the
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`district court’s judgment as to Rule 19.
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`B.
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`Statute of Limitations
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`Next, Appellant contends the district court erred in rejecting its statute of limitations
`
`
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`defense. Appellant contended that Plaintiffs’ claims should have been barred by a three-
`
`year statute of limitations applying to actions involving a “continuing” nuisance. In
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`response, Plaintiffs moved for partial summary judgment on Appellant’s statute of
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`limitations defense, asserting that this case involves a “recurrent” nuisance, for which the
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`three-year limit acts only to constrain the amount of damages available, not to completely
`
`bar the claim. The district court partially denied Plaintiffs’ summary judgment motion
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`with regard to certain other affirmative defenses but held “as a matter of law” with regard
`
`to the statute of limitations defense that the alleged nuisance was recurring. J.A. 3473.4
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`Appellant alleges this was error. Appellant further claims the court erred in refusing to
`
`give an instruction for the jury to decide whether the nuisance was continuing or recurring.
`
`
`4 The denial of Plaintiffs’ summary judgment motion with regard to the other
`affirmative defenses is not at issue in this appeal.
`
`
`
`17
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`USCA4 Appeal: 19-1019 Doc: 136 Filed: 11/19/2020 Pg: 18 of 144
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`1.
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`We review a district court’s summary judgment decision de novo, Woods v.
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`Berryhill, 888 F.3d 686, 691 (4th Cir. 2018) (citation omitted), and the court’s refusal to
`
`grant a jury instruction for abuse of discretion, United States v. Savage, 885 F.3d 212, 222
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`(4th Cir. 2018). A district court’s refusal to provide a jury instruction is reversible only if
`
`the defendant’s requested instruction “(1) was correct; (2) was not substantially covered by
`
`the court’s charge to the jury; and (3) dealt with some point in the trial so important, that
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`failure to give the requested instruction seriously impaired the defendant’s ability to
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`conduct his defense.” Savage, 885 F.3d at 22

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