Jarrod Johnson v. Water, Light, and Sinking Fund Commission of City of Dalton
Date Filed2022-12-21
Docket21-13663
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13663
____________________
JARROD JOHNSON,
Individually, and on Behalf of a Class of persons
similarly situated,
Plaintiff-Appellee,
versus
3M COMPANY, et al.,
Defendants,
WATER, LIGHT, AND SINKING FUND COMMISSION
OF CITY OF DALTON,
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2 Opinion of the Court 21-13663
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:20-cv-00008-AT
____________________
Before LUCK, BRASHER, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
Dalton, Georgia, which has been called the âcarpet capital of
the world,â boasts on its website that the city is âunrivaled in its
production of carpet.â 1 Since more than ninety percent of the
worldâs carpet comes from manufacturers in and around Dalton, it
would be hard to argue with that. But the title and boast say noth-
ing about any pollution resulting from all of that carpet production.
The allegations in this lawsuit do.
Plaintiff Jarrod Johnson alleges that toxic chemicals used
during the carpet manufacturing process have been allowed to seep
into the rivers that supply drinking water to communities near Dal-
ton, including Rome, Georgia and the rest of Floyd County. On
behalf of himself and a proposed class of water subscribers and
1 See Dalton, Carpet Center, Dalton, Ga., https://www.daltonga.gov/
community/page/dalton-carpet-center (last visited Dec. 19, 2022).
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21-13663 Opinion of the Court 3
ratepayers, he sued Dalton Utilities, a municipal corporation that
operates Daltonâs wastewater treatment system, for violating the
Clean Water Act and for creating a public nuisance. His lawsuit
claims that Dalton Utilities has caused the City of Romeâs domestic
water supply to be contaminated with dangerously high levels of
toxic chemicals. As the case comes to us, the question is whether
Dalton Utilities is entitled to municipal immunity from Johnsonâs
nuisance abatement (injunctive relief) claim. The answer is that it
is not.
I.
The facts, as alleged in the third amended complaint (the op-
erative one) and which we assume to be true for present purposes,
see McGroarty v. Swearingen, 977 F.3d 1302, 1306 (11th Cir. 2020),
are these.
More than ninety percent of the worldâs carpet comes from
manufacturers in and around Dalton. During the manufacturing
process the facilities use man-made chemicals called per- and
polyfluoroalkyl substances (PFAS) that repel oil and water and,
when applied to carpets, make them resistant to stains. But the
chemical properties that make PFAS ideal for carpet manufacturing
also make them toxic and everlasting (hence the nickname âforever
chemicalsâ). When released into the environment PFAS do not
break down, and they tend to collect and spread in water. They
have been linked to many adverse health effects, including devel-
opmental defects in fetuses, cancer, immunotoxicity, thyroid dis-
ease, ulcerative colitis, and high cholesterol.
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4 Opinion of the Court 21-13663
After the carpet manufacturing facilities use PFAS, they dis-
charge industrial wastewater containing dangerously high levels of
the chemicals directly into Daltonâs wastewater treatment system.
That system is owned and operated by Daltonâs Board of Water,
Light and Sinking Fund Commissioners, which does business as
Dalton Utilities. Dalton Utilities collects and treats the wastewater,
then pumps it to a 9,800-acre Riverbend Wastewater Land Appli-
cation System where it is sprayed across the surface of the land.
Instead of degrading during treatment, the PFAS accumulate in the
Land Application System and flow into the neighboring Conasauga
River and its tributaries. After that, they travel downstream to the
Oostanaula River, the primary source of Rome, Georgiaâs drinking
water, exposing its residents to âdangerously high levelsâ of the
chemicals.
In 2016 the City of Rome implemented an emergency filtra-
tion process to remove some PFAS from its water supply. To cover
the cost of this emergency filtration system and to pay for a new,
permanent one, the City imposed a surcharge on the price of water
for all ratepayers. The City estimates that the rate will increase by
at least 2.5% each year for the foreseeable future.
Johnson, a Rome resident, filed this action in the Superior
Court of Floyd County in 2019 on behalf of himself and a proposed
class of water subscribers and ratepayers who are harmed by the
contamination of their drinking water and the payment of sur-
charges. He named as defendants various chemical suppliers and
carpet manufacturers and alleged state law claims for tortious
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21-13663 Opinion of the Court 5
conduct, public nuisance, and nuisance abatement. The case was
later removed to the Northern District of Georgia under the Class
Action Fairness Act, 28 U.S.C. § 1332(d).
Johnson brought Dalton Utilities into the case with his first
amended complaint, which alleged a Clean Water Act claim
against it. That first amended complaint also alleged a Clean Water
Act claim against the Dalton/Whitfield Regional Solid Waste Au-
thority and reorganized the state law tort claims, adding a negli-
gence per se claim against the carpet manufacturers and chemical
suppliers. Then Johnson amended his complaint a second time to
correct misnomers and clarify which chemical supplier defendants
are subject to his negligence per se claim. That was followed by a
third amended complaint, which added some defendants, substi-
tuted others, and updated the Clean Water Act allegations. He also
asserted in it public nuisance and nuisance abatement claims
against Dalton Utilities. His third amended complaint generally al-
leges that the contamination of Romeâs drinking water endangers
his health, damages his property, interferes with his use and enjoy-
ment of his property, and increases the price of his water. It seeks
compensatory and punitive damages and injunctive relief.
Dalton Utilities moved to dismiss the third amended com-
plaint for failure to state a claim. Relevant to this appeal, the mo-
tion asserted that Dalton Utilities is entitled to municipal
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6 Opinion of the Court 21-13663
immunity 2 from Johnsonâs nuisance abatement claim. Relying on
the Georgia Supreme Courtâs Sustainable Coast decision, the mo-
tion contended that municipalities are immune from a nuisance
claim unless the claim seeks monetary relief for the taking or dam-
aging of private property. See Ga. Depât of Nat. Res. v. Ctr. for a
Sustainable Coast, Inc., 755 S.E.2d 184 (Ga. 2014). Dalton Utilities
asserted that Johnsonâs nuisance claim sought only injunctive relief
for personal injury, and as a result municipal immunity applied to
that claim against Dalton Utilities.
After a hearing, the district court denied Dalton Utilitiesâ
motion to dismiss Johnsonâs nuisance abatement claim on munici-
pal immunity grounds. Relying on Gatto v. City of Statesboro, 860
S.E.2d 713 (Ga. 2021), the court found that âas it stands now, [Geor-
gia] law allows for a nuisance claim against a municipality for injury
to property (or the use and enjoyment thereof) or personal injury.â
And the court expressed its view that Johnson had adequately al-
leged a nuisance claim against Dalton Utilities both for injury to
property and for personal injury. This is Dalton Utilitiesâ interloc-
utory appeal of the district courtâs order.
While this appeal was pending, Johnson filed with Dalton
Utilitiesâ consent a fourth amended complaint in the district court.
2 Although the parties and the district court refer to âsovereign immunityâ or
âmunicipal sovereign immunity,â we follow the lead of the Georgia Supreme
Court and use âmunicipal immunityâ to refer to the governmental immunity
afforded to cities. Gatto v. City of Statesboro, 860 S.E.2d 713, 715 n.1 (Ga.
2021).
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This latest amended complaint makes two changes to the claims
against Dalton Utilities: it adds another Clean Water Act claim, and
it withdraws the public nuisance claim that sought damages. But
it leaves the nuisance abatement claim seeking injunctive relief in-
tact, and thatâs the only claim at issue in this appeal.
II.
Johnson has moved to dismiss this appeal, contending that
we lack jurisdiction because the district courtâs order denying Dal-
ton Utilitiesâ motion to dismiss the nuisance abatement claim is not
a final order. An order denying a motion to dismiss is not a final
decision, and we lack jurisdiction to review it âunless it is otherwise
made appealable by statute or jurisprudential exception.â Parker
v. Am. Traffic Sols., Inc., 835 F.3d 1363, 1367 (11th Cir. 2016) (quo-
tation marks omitted); see also 28 U.S.C. § 1291 (providing that the
federal courts of appeals âhave jurisdiction of appeals from all final
decisions of the district courts of the United Statesâ). The only ex-
ception that could conceivably apply here is the collateral order
doctrine. âThat doctrine permits the immediate appeal of an inter-
locutory order if it (1) conclusively determines an important issue
that is both (2) completely separate from the merits of the case and
(3) effectively unreviewable on appeal from a final judgment.â Par-
ker, 835 F.3d at 1367.
Under the collateral order doctrine, an order denying state
sovereign immunity âis immediately appealable if state law defines
the immunity at issue to provide immunity from suit rather than
just a defense to liability.â Id. Under Georgia law state sovereign
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8 Opinion of the Court 21-13663
immunity is immunity from suit, and an order denying state sover-
eign immunity is immediately appealable. Griesel v. Hamlin, 963
F.2d 338, 341 (11th Cir. 1992).
We have not decided whether the denial of a motion to dis-
miss based on Georgia municipal immunity, as distinguished from
Georgia state immunity, is immediately appealable. Dalton Utili-
ties says that there is no meaningful difference for interlocutory ap-
peal purposes because, like Georgia state sovereign immunity,
Georgia municipal immunity is immunity from suit. We agree.
See Primas v. City of Milledgeville, 769 S.E.2d 326, 328 (Ga. 2015)
(â[U]nder the doctrine of sovereign immunity, a municipal corpo-
ration is immune from suit unless its immunity is waived by the
General Assembly . . . .â) (emphasis added); Koehler v. Massell, 191
S.E.2d 830, 833 (Ga. 1972) (referring to the legislature having the
authority to delegate to municipalities âthe power and authority to
waive their immunity from suit on claims arising because of negli-
gence in the performance of [their] governmental functionsâ) (em-
phasis added).
Johnson argues that the collateral order doctrine does not
apply because the issue of Dalton Utilitiesâ immunity is inseparable
from the merits of his nuisance abatement claim. But a question of
immunity is separate from the merits of the underlying action for
purposes of the collateral order doctrine, âeven though a reviewing
court must consider the plaintiffâs factual allegations in resolving
the immunity issue.â Mitchell v. Forsyth, 472 U.S. 511, 529 (1985).
Any overlap of the immunity issue with the merits of the nuisance
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21-13663 Opinion of the Court 9
abatement claim, under these particular circumstances, does not
affect our appellate jurisdiction.
We also must consider what effect (if any) Johnsonâs fourth
amended complaint has on our jurisdiction. See Vital Pharms., Inc.
v. Alfieri, 23 F.4th 1282, 1288 (11th Cir. 2022) (requiring that we
ensure âup until the moment our mandate issuesâ that intervening
events have not divested us of jurisdiction by mooting the appeal).
The filing of a notice of appeal âconfers jurisdiction on the
court of appeals and divests the district court of its control over
those aspects of the case involved in the appeal.â Griggs v. Provi-
dent Consumer Disc. Co., 459 U.S. 56, 58 (1982) (emphasis added).
For that reason, we have held that if a proposed amended com-
plaint would âalter[] the status of the caseâ on interlocutory appeal,
the district court lacks jurisdiction to allow the plaintiffs to file it.
Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d
1292, 1309 (11th Cir. 2003).
Even so, âan interlocutory appeal does not completely di-
vest the district court of jurisdiction.â Id. âThe district court has
authority to proceed forward with portions of the case not related
to the claims on appeal.â Id.(quoting May v. Sheahan,226 F.3d 876
, 880 n.2 (7th Cir. 2000)) (alteration omitted); see also Wooten
v. Roach, 964 F.3d 395, 403 (5th Cir. 2020). The key point is that
Johnsonâs fourth amended complaint does not change the nuisance
abatement allegations on which Dalton Utilitiesâ municipal im-
munity defense is based. It leaves the status of this appeal of the
immunity order unaffected. The notice of appeal divested the
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10 Opinion of the Court 21-13663
district court of jurisdiction over only one claim in a single count,
and that is the nuisance abatement (injunction relief) claim against
Dalton Utilities.
III.
Having determined that we have jurisdiction to decide Dal-
ton Utilitiesâ appeal, we turn to the remaining issue: whether under
Georgia law a municipality has immunity from a nuisance claim
for personal injury.3 Relying on Sustainable Coast, Dalton Utilities
contends that municipalities may be liable for only one kind of nui-
sance claim: the kind that involves a taking of private property.
And according to Dalton Utilities, thatâs not the kind of nuisance
claim Johnson has asserted. We review de novo a district courtâs
denial of sovereign immunity at the motion to dismiss stage. See
Tamiami Partners, Ltd. ex rel. Tamiami Dev. Corp. v. Miccosukee
Tribe of Indians of Fla., 177 F.3d 1212, 1224 (11th Cir. 1999).
In Sustainable Coast the Georgia Supreme Court held that
the only way state sovereign immunity can be waived is if the
Georgia legislature does it. 755 S.E.2d at 188. In doing so it over-
ruled one of its earlier decisions, IBM v. Evans, 453 S.E.2d 706 (Ga.
1995), in part because Evans âwrongly recognizedâ a judicially
3 In the district court, Dalton Utilities argued that under Sustainable Coast
municipalities are immune from nuisance claims that seek either monetary
damages for personal injury or injunctive relief. It now argues only that Sus-
tainable Coast shields municipalities from nuisance claims for personal injury
(as opposed to property damage).
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created âexception to sovereign immunity for suits seeking injunc-
tive relief to restrain an illegal act.â 755 S.E.2d at 190.
In reaching its holding in Sustainable Coast, the Georgia Su-
preme Court acknowledged that in the past it had recognized what
it had called a ânuisance exceptionâ to sovereign immunity, which
is the âlongstanding principle that a municipality is liable for creat-
ing or maintaining a nuisance which constitutes either a danger to
life and health or a taking of property.â Id. (quotation marks omit-
ted). It clarified that: âthe ânuisance exceptionâ . . . was not an ex-
ception at all, but instead, a proper recognition that the [Georgia]
Constitution itself requires just compensation for takings and can-
not, therefore, be understood to afford immunity in such cases.â
Id. The court recognized that its past application of what it had
then called the ânuisance exceptionâ to sovereign immunity did
not mean the court had authority to create exceptions not recog-
nized by the Georgia Constitution. Id.
According to Dalton Utilities, Sustainable Coastâs discussion
about nuisance claims and sovereign immunity was inextricably
linked to the Georgia Constitutionâs just compensation provision.
It argues that the decision implicitly limited municipal liability for
nuisance to claims that the municipality took or damaged private
property. 4 That Sustainable Coast-based argument might have
4 Sustainable Coast involved state sovereign immunity, not municipal im-
munity. Though state and municipal sovereign immunity may not be coex-
tensive, see Gatto, 860 S.E.2d at 716 & n.3, the Georgia Supreme Court re-
cently explained that âthe scope of whatever waiverâ the just compensation
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more appeal if it were the only decision on the subject. But five
years after Sustainable Coast, the Georgia Supreme Court issued
its Gatto decision. In it the court reaffirmed the common law prin-
ciple that municipalities may be held liable not only for nuisances
that take or damage property but also for nuisances that threaten
life or health. See Gatto, 860 S.E.2d at 716.
The court agreed to hear the Gatto case âto consider the
contours of municipal immunity with respect to nuisance claims.â
Id. at 715 (footnote omitted). Its decision in that case gave a de-
tailed history of the ânuisance exception,â which it renamed the
ânuisance doctrine.â See id. at 716â20. For our purposes the most
important part of the helpful history lesson in the Gatto opinion is
this: while a municipalityâs nuisance liability was traditionally lim-
ited to injuries to the physical condition of the plaintiffâs property
or his use and enjoyment of it, the Georgia Supreme Court aban-
doned that limitation in 1968 in Town of Fort Oglethorpe v. Phil-
lips, 165 S.E.2d 141 (Ga. 1968). See Gatto, 860 S.E.2d at 718â19.
In Phillips the Georgia Supreme Court had concluded that
the plaintiff stated a valid nuisance claim against a city for its failure
to fix a faulty traffic light, which caused the plaintiffâs injuries. 165
S.E.2d at 144. That decision expanded the scope of municipal lia-
bility for nuisance claims âto include personal injuries beyond
those tied to the plaintiffâs property.â Gatto, 860 S.E.2d at 719.
provision provides âis not limited to the sovereign immunity of the State, but
extends to . . . municipal immunity,â Depât of Transp. v. Mixon, 864 S.E.2d 67,
70 n.2 (Ga. 2021).
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That was the last word on the subject from the Georgia Supreme
Court before the Georgia Constitution was amended in 1974 to
constitutionalize the common law doctrine of sovereign immunity
and the decisions involving it.
The 1974 Georgia constitutional amendment removed from
the court its authority to expand (or contract) the sovereign im-
munity doctrineâs scope in the future, effectively freezing in place
Georgia sovereign immunity law. See id. at 720â21. As the Geor-
gia Supreme Court summarized it in Gatto, the amendment âpre-
served the scope of [sovereign immunity] as it existed at common
law,â which included Phillips, and ârendered it unmodifiable by the
courts.â Id. at 721. The development convinced the Georgia Su-
preme Court that it ânow has no authority to alter these outer lim-
its of municipal nuisance liability.â Id. at 720â21.
The Sustainable Coast decision in 2014 cast some doubt on
the 1968 Phillips decision by making âclearâ that, because the Geor-
gia Constitution gives the legislature the sole authority to waive
sovereign immunity, âjudge-made exceptions are unauthorized
and have no validity.â 5 Gatto, 860 S.E.2d at 717â18 (quotation
5 Sustainable Coast also muddied the waters somewhat by stating that â[o]pin-
ions of Georgia appellate courts dealing with the judicial application of sover-
eign immunity prior to the 1974 constitutional amendment are not applicable
to claims against the State arising after the 1974 amendment . . . .â 755 S.E.2d
at 190â91 (quotation marks omitted). But in a later decision, the Georgia Su-
preme Court clarified that the â1974 constitutional amendment did not change
the scope of sovereign immunity; it merely gave it a new constitutional status
that put changes beyond the reach of the courts.â Bd. of Commârs of Lowndes
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marks omitted). But the Georgia Supreme Court has cited Phillips
favorably and followed it even after the 1974 constitutional amend-
ment, see, e.g., City of Bowman v. Gunnells, 256 S.E.2d 782, 784
(Ga. 1979) (relying on Phillips to determine âwhat it takes to con-
stitute a nuisanceâ that would subject a municipality to liability);
Mayor of Savannah v. Palmerio, 249 S.E.2d 224, 229â30 (Ga. 1978)
(relying on Phillips for the principle that a municipality can be held
liable for creating âa nuisance dangerous to life or healthâ), which
is some evidence that Phillips stands as common law that survived
the 1974 amendment. See also Gatto, 860 S.E.2d at 171 (explaining
that in Palmerio and Gunnells, the court âattempted to elucidate
parameters for [Phillipsâ] more expansive notion of municipal lia-
bilityâ).
In any event, as the Georgia Supreme Court stressed in
Gatto, the ânuisance exceptionâ is not an exception at all but in-
stead a âdoctrineâ that is still used to âevaluat[e] whether municipal
liability may be imposed in a given case.â Id. at 718; see also
Beasley v. Ga. Depât of Corr., 861 S.E.2d 106, 111 n.14 (Ga. Ct. App.
2021) (explaining that under Georgia Supreme Court precedent
âthere may be recovery for personal injuries sustained by the
Cnty. v. Mayor of Valdosta, 848 S.E.2d 857, 860, 861 n.2 (Ga. 2020). The court
also noted that âthe sovereign immunity preserved by the 1974 amendment
and the common law doctrine as previously understood by Georgia courts
were one and the same.â Id. at 860 (emphasis added). The courtâs pre-1974
case law is not âirrelevantâ; instead, âit is the only way that we can discern the
nature of the sovereign immunity that the Georgia Constitution now pre-
serves.â Id. at 861 n.2.
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21-13663 Opinion of the Court 15
maintenance of a nuisance in the municipality context under cer-
tain circumstancesâ).
The Georgia Supreme Courtâs latest word in Gatto controls
us when it comes to Georgia law. See Blue Cross & Blue Shield of
Ala., Inc. v. Nielsen, 116 F.3d 1406, 1413 (11th Cir. 1997) (âThe final
arbiter of state law is the state supreme court, which is another way
of saying that [a stateâs] law is what the [stateâs] Supreme Court
says it is.â). And according to Gatto, the 1974 amendment pre-
served Phillipsâ removal of municipal immunity for nuisance
claims involving personal injury. See Gatto, 860 S.E.2d at 721 (cit-
ing Bd. of Commârs of Lowndes Cnty. v. Mayor of Valdosta, 848
S.E.2d 857, 859â61, 861 n.2 (Ga. 2020)). We are bound to follow,
and do follow, the Georgia Supreme Courtâs holding in Gatto and
Phillips about Georgia law on municipal immunity.
At oral argument, counsel for Dalton Utilities conceded that
if Phillips is still good law, Johnson has properly alleged a Phillips
kind of nuisance claim for personal injury. 6 We agree. Municipal
6 In its briefs to this Court, Dalton Utilities argued that even under Phillipsâ
expanded version of the nuisance doctrine, Johnson has failed to state a nui-
sance claim because he has not alleged that Dalton Utilities created or main-
tained a nuisance. That contention may be outside the scope of the interloc-
utory appeal, and Dalton Utilities did not press the matter in the district court.
When asked at oral argument, âDid they properly allege a Phillips kind of
claim, assuming Phillips is good law, all of it?â Dalton Utilities answered: âAs-
suming Phillips is good law, yes, Your Honor, I think they did.â See Crowe v.
Coleman, 113 F.3d 1536, 1542 (11th Cir. 1997).
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16 Opinion of the Court 21-13663
immunity does not shield Dalton Utilities from Johnsonâs nuisance
abatement claim.
IV.
Johnsonâs motion to dismiss Dalton Utilitiesâ appeal for lack
of jurisdiction is DENIED.
The district courtâs order denying Dalton Utilitiesâ motion
to dismiss Johnsonâs nuisance abatement claim on municipal im-
munity grounds is AFFIRMED.