JOHN H. ENGLAND, III, Magistrate Judge.
Defendants National Energy Solutions, Inc. ("NES") and Terra-Gen Power, LLC ("Terra-Gen") (collectively "Defendants") removed this action from the Circuit Court of Cleburne County, Alabama, to this Court on December 3, 2014, asserting federal jurisdiction pursuant to 28 U.S.C. § 1332, based upon diversity of citizenship and the amount in controversy.
Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Doc. 12). The motion is fully briefed and ripe for review.
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). Mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal, 556 U.S. at 678. (citations and internal quotation marks omitted). "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement." Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Rule 12(b)(6), Fed. R. Civ. P., permits dismissal when a complaint fails to state a claim upon which relief can be granted. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The complaint must establish "more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Bell Atl. Corp., 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level."). Ultimately, this inquiry is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
Plaintiffs are residents of Cleburne County, Alabama, each of whom "own real estate adjacent to land that is the site of Defendants' proposed wind turbines." (Doc. 1-1 at ¶1). Defendants have announced their intention "to build, own, and operate between fifteen (15) and thirty (30) wind turbines" that will be "approximately 570 feet tall" and "destroy some of Cleburne County's most scenic areas, such as those of the Plaintiff property owners." (Id. at ¶8). Plaintiffs further allege the huge wind turbines will produce very little electricity and are being built because of "huge government incentives" that benefit only the energy companies and the landowners who put the turbines on their property, with little or no benefit to the public. (Id. at ¶¶10-11). Additionally, Plaintiffs contend there is no provision for the removal of non-operational turbines. (Id. at ¶12).
(Doc. 1-1 at ¶14). More specifically, Plaintiffs allege they will sustain "great and irreparable injury" in the form of the following:
(Id. at ¶15). Plaintiffs further allege that "[t]he interference with the Plaintiffs' use and enjoyment of their land is both substantial and unreasonable for the above-stated reasons." (Id. at ¶17).
Finally, Plaintiffs state they "cannot be fully compensated in damages and are without an adequate remedy at law because the exact amount of damages the Plaintiffs will sustain will be difficult to determine, and the damages likely to be suffered are irreparable in nature." (Id. at ¶19).
Under Alabama law, a nuisance
In response to Defendants' motion to dismiss, Plaintiffs argue that a motion to dismiss is not proper because they have a right to present evidence at trial that the proposed wind turbine project would destroy the scenic beauty of their property, create "shadow flicker" that "could possibly be seen within the[ir] residences," and create noise. (Doc. 14 at 2). Specifically, Plaintiffs cite McCord v. Green, 555 So.2d 743 (Ala. 1989), stating that the Alabama Supreme Court has "been exceedingly unwilling to enjoin a proposed enterprise until it has been proven at trial to be a nuisance." (Doc. 14 at 1 citing McCord, 555 So. 2d at 745 (emphasis added by Plaintiffs)). While it is true that state courts generally do not enjoin an anticipatory nuisance prior to it being proven at trial, there is absolutely no indication that this alleviates a plaintiff from sufficiently stating a claim in these cases. See Jackson v. Downey, 42 So.2d 246 (Ala. 1949) (holding that "if the facts averred present such a situation that if proven equity will intervene to grant relief, the case should proceed to a hearing on the evidence . . . ."). The Alabama Supreme Court was not "exceedingly unwilling to enjoin a proposed enterprise until it has been proven at trial to be a nuisance" because all permanent injunction cases must go to trial. To the contrary, the court explained that the injunction of anticipatory nuisances is "an extraordinary power that must be cautiously and sparingly exercised." McCord, 555 So. 2d at 745. Plaintiffs must plead their claim by stating allegations, which, if proven true, show that, to a reasonable degree of certainty, the proposed wind turbine project will, in fact, constitute a nuisance, before proceeding to discovery and, if necessary, trial. See id.
Specifically, the Alabama Supreme Court has stated:
Hall v. North Montgomery Materials, LLC, 39 So.3d 159, 171 (Ala. Civ. App. 2008) (quoting McCord, 555 So.2d at 745) (quotations marks and citations omitted). Thus, a review of Plaintiffs' complaint must show (1) a reasonable degree of certainty that the proposed project will cause (2) irreparable damages.
Plaintiffs allege that Defendants intend to construct fifteen to thirty wind turbines that will be approximately 570 feet tall. (Doc. 1-1 at ¶8). Due to the height of these turbines, Plaintiffs allege the scenic beauty of their property will be destroyed. (Id.). Plaintiffs also point to their allegation that the turbines will create "shadow flicker" — "flashing of the blades when the sun strikes at a particular angle" — that "could possibly be seen within the[ir] residences." (Doc. 14 at 2 (citing doc. 1-1 at ¶¶14-15)). Plaintiffs also allege that the wind turbines will create noise, specifically low frequency noise. (Id. (citing doc. 1-1 at ¶15)). Finally, Plaintiffs point to the allegation that the proposed turbines will diminish their property values. (Id. at 3 (citing doc. 1-1 at §15)). Plaintiffs acknowledge that diminution of value of real estate without more is typically not enough for an injunction, but argue that this, factored in with all of the other allegations, "could allow the court to issue the injunction."
Neither party has presented the undersigned with Alabama case law addressing wind turbines as a nuisance. However, Alabama courts have addressed the alleged harms that Plaintiffs contend will result from the proposed project. First, Plaintiffs allege that, due to the proposed height of the wind turbines, the project will destroy their property's scenic beauty. (Doc. 1-1 at ¶8). General unsightliness, however, does not constitute a nuisance. Ala. Power Co. v. Stringfellow, 153 So. 629, 631 (Ala. 1934) ("The trial court charged out, and properly so, the claim of unsightliness of the substation."). Plaintiffs also complain about "shadow flicker" and the possibility it could be seen from inside their residences. (Doc. 1-1 at ¶¶14-15). The alleged possibility of a harm occurring is not enough to support an injunction of an anticipatory nuisance. Thus, the undersigned only considers the allegation that shadow flicker will occur and the implicit conclusion it will be seen from somewhere on Plaintiffs' properties. There are no allegations as to how this will cause the level of irreparable harm required to support an injunction.
Next, Plaintiffs complain the proposed project will cause "constant noise" and "low frequency noise" that will interfere with their use and enjoyment of their land. (Doc. 1-1 at ¶¶14, 15, 17). "Whether or not noise in itself, constitutes a nuisance is a question of fact dependent on the nature and character of the noise, its constancy or frequency, and the extent of the inconvenience caused by it." Hall v. N. Montgomery Materials, LLC, 39 So.3d 159, 173 (Ala. Civ. App. 2008) (citations omitted). While some of Plaintiffs' allegations describe the alleged harm in a speculative nature, the allegations regarding noise are stated in no uncertain terms. As property owners adjacent to a proposed project that will cause constant noise and low frequency noise, Plaintiffs have stated a claim for private nuisance. This is particularly true when considered in connection with the other allegations of injury.
Although at one point Plaintiffs state that "damages . . . will be difficult to determine," they otherwise allege their injury will be irreparable. (See doc. 1-1 at ¶19). Injunctive relief from an anticipatory nuisance is not available if legal damages can be calculated, even if that calculation becomes "difficult." Despite Plaintiffs' inconsistent statements regarding the nature of their injury, they clearly plead that they will be irreparably harmed if this project is allowed to proceed. Therefore, Plaintiffs are entitled to move forward with their claim and present evidence to the court on the many fact issues, including, but not limited to, the nature of this noise and other alleged harms.
Plaintiffs have stated a cause of action for an injunction of an anticipatory private nuisance. Accordingly, the motion to dismiss, (doc. 12), is
