JCM, LLC a Kansas Limited Liability Company and JERRY C. MEACHAM, Plaintiffs
HEINEN BROS. AGRA SERVICES, INC., Defendant.
MEMORANDUM AND ORDER
Sam A. Crow, U.S. District Senior Judge
The case comes before the court on the defendant Heinen Bros. Agra Services, Inc.’s (“Heinen Bros.”) motion for summary judgment (Dk. 45) arguing that the plaintiffs lack standing to bring this action and that the plaintiffs’ punitive damages claim lacks sufficient evidence to raise a genuine issue of material fact. As the owner and operator of a hunting lodge and outfitting business on property in Chautauqua County, Kansas, in June of 2011, the plaintiff JCM, LLC (“JCM”) brings this action alleging the Heinen Bros. aerially applied a herbicide on abutting land so as either to spray directly the plaintiff’s property or to allow drifting of the spray onto the plaintiff’s property. The spray killed a large number of trees for which JCM is seeking damages in excess of $100, 000. After researching the issues and reviewing the filings, the court denies the defendant’s motion finding that the plaintiff JCM has standing and that there are genuine issues of material fact to preclude summary judgment on the punitive damages claim.
STATEMENT OF UNCONTROVERTED MATERIAL FACTS
In June of 2011, Adam Way, an employee-pilot for Heinen Bros., aerially sprayed the herbicide Remedy Ultra to crop ground belonging to Lynn Kelly in rural Chautauqua County, Kansas. Immediately south of this ground was property used as a hunting preserve and owned by the plaintiff JCM. This action was brought when trees on the plaintiff’s property were damaged allegedly because of herbicide drift from this aerial spraying.
Sometime in July 2012, the Kansas business registration for JCM was forfeited. By special warranty deed dated November 14, 2012, JCM transferred its property to JCM 082763, a Florida limited liability company registered on November 6, 2012. The plaintiff Jerry C. Meacham (“Meacham”) is the member/manager of both limited liability companies. This transfer of property between the companies did not include an express transfer of money or any agreement regarding the damage, damage claim or payment for damage, arising from the alleged event in June of 2011. On December 5, 2012, JCM 082763 filed this suit, and on April 4, 2013, JCM’s business registration with the State of Kansas was reinstated. The court granted JCM 082763’s motion to substitute JCM and Meacham as the plaintiffs in this action.
The Kansas Department of Agriculture (“KDA”) sent its investigator, Brice Denton, to make investigatory findings about this spraying incident. Adam Way, Heinen Bros.’s pilot, told Denton that he applied the herbicide when the winds were out of the northwest at a speed of 5 mph. The weather data for nearby communities showed wind speeds from 11.5 to 13.8 mph for the same time period. Denton testified that these higher wind speeds would be consistent with the herbicide damage he observed on the plaintiff’s property located three-quarters of a mile from the spray site. For purposes of this motion, the defendant concedes to wind speeds of between 11.8 to 13.8 mph.
Denton’s report summarized that Heinen Bros. aerially applied Remedy Ultra to “157 acres of pasture on 6/15/11 immediately north of Jerry Meacham’s property and that tree leaves were showing symptoms consistent with phenoxy exposure.” (Dk. 49-3, p. 2). Denton inspected the plaintiff’s property and took vegetation and soil samples. Denton recorded his observation that, “[t]he north side of trees on Mr. Meacham’s property where (sic) showing signs of herbicide injury for at least 3/4 of a mile to the south of the target field.” Id. Denton’s report included the following taken from herbicide’s label:
Label: Remedy Ultra EPA Reg# 62719-552 on page 2 under Avoiding Injurious Spray Drift make applications only when there is little or no hazard from spray drift. Small quantities of spray, which may not be visible, may seriously injure susceptible plants. Do not spray when wind is blowing toward susceptible crops or ornamental plants that are near enough to be injured.
(Dk. 49-3, p. 3). Denton testified that this herbicide is more toxic than 2, 4-D.
Bert Hawkins monitors the plaintiff’s property and keeps some of his cattle on this property. Living approximately one mile east of the property, he recalls the spraying incident and has experience with using herbicide to control weeds. Hawkins has averred “that it was way too windy to be spraying that morning. I saw the cropduster doing the spraying and it was drifting like crazy.” (Dk. 49-5, p. 3). Hawkins also states the wind speeds that morning were at least between 11.5 and 13.8 mph.
“[T]he party seeking to invoke federal jurisdiction bears the burden of establishing standing.” Cressman v. Thompson, 719 F.3d 1139, 1144 (10th Cir. 2013) (internal quotation marks and citation omitted). “Absent a plaintiff with constitutional standing, federal courts lack jurisdiction.” Southern Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013) (internal citation omitted). “[S]tanding is determined as of the date of the filing of the complaint.” Hill v. Vanderbilt Capital Advisors, LLC, 702 F.3d 1220, 1224 (10th Cir. 2012) (internal quotation marks and citation omitted). “To have Article III standing, the plaintiff must show that the conduct of which he complains has caused him to suffer an injury in fact that a favorable judgment will redress.” The Wilderness Soc. v. Kane County, Utah, 632 F.3d 1162, 1168 (10th Cir. 2011) (internal quotation marks and citation omitted).
In arguing that JCM lacks standing, the defendant relies principally on the following statement appearing in the Tenth Circuit decision of Morsey v. Chevron, USA, Inc., 94 F.3d 1470, 1478 (10th Cir. 1996):
Assuming without deciding that Morsey acquired his leasehold by an assignment broad enough to include his predecessors’ causes of action as to Section 20, he cannot recover for injuries inflicted on the leasehold before he acquired it. Any tort for damages done to the leasehold before he acquired it belonged to his predecessors-in-interest and lapsed ...