Documentos de Académico
Documentos de Profesional
Documentos de Cultura
16CV25390
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CARMEN KONTOUR-GONQUIST; and
JANINE CONNORS; on behalf of themselves )
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and all others similarly situated,
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Plaintiffs,
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v.
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AMERITIES WEST, LLC,
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Defendant.
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Plaintiffs allege:
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INTRODUCTION
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1.
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(facility). Through its wood preserving process, Defendant releases noxious odors that
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
invade Plaintiffs properties, causing damages through, nuisance, trespass, negligence and
gross negligence.
2.
As residents of The Dalles, Oregon community, Plaintiffs do not want to close the
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facility or stop Defendants business. Rather, Plaintiffs seek to stop Defendants current
practices that result in the release of noxious odors and to accomplish a change in
Defendants practices to ensure Plaintiffs properties are not unreasonably exposed to these
noxious odors. Accordingly, Plaintiffs seek an Order holding that entrance of the
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further seek compensatory damages caused as a result of the noxious odors and other relief
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permitted by law.
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PARTIES
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3.
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At all times relevant hereto, Plaintiff Carmen Kontour-Gonquist has resided at 2307
E. 10th St., in the City of The Dalles, County of Wasco, State of Oregon.
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4.
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At all times relevant hereto, Plaintiff Janine Connors has resided at 3000 Old Dulfur
Rd., in the City of The Dalles, County of Wasco, State of Oregon.
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5.
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operating a wood preserving facility located at 100 Tie Plant Road, in the City of The Dalles,
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//
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
6.
This Court has jurisdiction pursuant to Oregon Revised Statutes (ORS) Chapter 14,
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Section 14.030.
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Venue is proper in Wasco County Circuit Court because Defendant has sustained,
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continuous business activity in Wasco County, has an office for the transaction of business in
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Wasco County, and a substantial part of the events giving rise to the claims at issue in this
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Complaint occurred in Wasco County. Plaintiffs reside and suffered damages in Wasco
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County.
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GENERAL ALLEGATIONS
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9.
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Plaintiffs properties have been, and continue to be, physically invaded by noxious
odors.
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10.
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The noxious odors which entered Plaintiffs properties originated from Defendants
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facility located at 100 Tie Plant Road, in the City of The Dalles, County of Wasco, State of
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Oregon.
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11.
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Defendant operates a wood preserving facility which includes two boilers, three
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//
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
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The Defendants facility treats wood cross ties for the railroad industry using, among
other things, creosote or creosote solutions.
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Creosotes are a category of carbonaceous chemicals and have the ability to emit very
strong odors.
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Defendants facility preserves wood by placing it in retorts. These are large sealed
tanks in which rail cars loaded with cross ties are chemically treated with creosotes. The cars
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are parked on a drip pad area until the chemicals stop dripping. The freshly treated ties are
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Defendants facility, and specifically its emissions, has been the subject of frequent
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complaints from residents in the adjacent residential area. As a result, more than 100
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households have contacted Plaintiffs counsel documenting the odors they attribute to the
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Defendants facility.
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Defendant has a well-documented history of failing to control its odorous emissions,
including, but not limited to the following:
a.
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b.
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
c.
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a.
The Amerities facility is spewing the awful odor again, this morning, longer
than usual. The smell is inside my house now, since I had my windows open
b.
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Rail road tie plant in The Dalles. Consistent emission of foul odors causing
c.
We have lived in The Dalles, OR and Dallesport, WA for the last 33 years.
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The odor from the creosote plant has continually been very nauseating and
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unpleasant over the years . . . . There are days that we cant open our
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Citizens continue to voice complaints about the noxious odors emanating from
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On April 8, 2016, the OR DEQ and Defendant entered into a Mutual Agreement and
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Final Order (MAFO) to implement multiple odor control measures at the facility. The
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a.
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Creosote is used as a wood preservative in the process and has the ability to
emit strong odors.
b.
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
complained to DEQ that strong odors emanate from the Facility. On February
was triggered due to the number and description of the odor complaints DEQ
received concerning the Facility. As a result, DEQ staff have been conducting
odor surveys in The Dalles area and have documented that creosote-type
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The invasion of Plaintiffs properties by noxious odors has interfered with Plaintiffs
use and enjoyment of their properties, resulting in damages in excess of $25,000.
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21.
Defendant intentionally, recklessly, willfully, wantonly, maliciously, grossly and
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negligently failed to properly construct, maintain and/or operate its facility, and caused the
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22.
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control emissions of noxious odors onto Plaintiffs properties. Such failures include, but are
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a.
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b.
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c.
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d.
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e.
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f.
Inadequate design of air handling and oil scrubber systems for the retort door
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
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g.
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h.
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Plaintiffs bring this action individually and on behalf of all persons as the Court may
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Procedure (ORCP 32). Plaintiffs seek to represent a Class of persons preliminarily defined
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as: All owner/occupants and renters of residential property residing within one and one-half
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24.
The definitional boundary articulated in paragraph 23 is subject to modification as
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discovery will disclose the location of all class members. Plaintiffs reserve the right to propose
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one or more sub-classes if discovery reveals that such subclasses are appropriate.
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Numerosity
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The Class consists of hundreds if not thousands of members and therefore is so numerous
that joinder is impracticable.
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Commonality
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Numerous common questions of law and fact predominate over any individual questions
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
a.
maliciously, grossly and negligently failed to construct, maintain and operate the
facility;
b.
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which steps Defendant has and has not taken in order to control the release of
noxious odors through the construction, maintenance and operation of its facility;
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whether and to what extent the facilitys noxious odors were dispersed over the
class area;
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f.
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g.
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whether the degree of harm suffered by Plaintiffs and the class constitutes a
substantial annoyance or interference; and
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h.
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Typicality
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27.
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Plaintiffs have the same interests in this matter as all the other members of the Class
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and their claims are typical of all members of the Class. If brought and prosecuted
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individually, the claims of each Class member would require proof of many of the same
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material and substantive facts, utilize the same complex evidence including expert testimony,
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rely upon the same legal theories and seek the same type of relief.
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//
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
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28.
The claims of Plaintiffs and the other Class members have a common cause and their
damages are of the same type. The claims originate from the same failure of the Defendant to
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29.
All Class members have suffered injury in fact as a result of the invasion of their
property by Defendants release of noxious odors, causing damage to Plaintiffs properties.
Adequacy of Representation
30.
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Plaintiffs claims are sufficiently aligned with the interests of the absent Class
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members to ensure that the Class claims will be prosecuted with diligence and care by
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Plaintiffs as representatives of the Class. Plaintiffs will fairly and adequately represent the
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interests of the Class and do not have interests adverse to the Class.
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31.
Plaintiffs have retained the services of counsel who are experienced in complex class
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action litigation and in particular class actions stemming from invasions of industrial
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emissions. Plaintiffs counsel will vigorously prosecute this action and will otherwise protect
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and fairly and adequately represent Plaintiffs and all absent Class members.
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32.
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AmeriTies West, LLC (Defendant) by mailing a copy of this complaint and along with a
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letter detailing the particular causes of action against Defendant and demanding that
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Defendant correct or rectify its wrongs. More than 30 days has elapsed since Plaintiffs
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
submitted their pre-litigation notice to Defendant in writing via certified mail return receipt
COUNT ONE
Nuisance
33.
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Plaintiffs restate the allegations set forth in all previous paragraphs of this Complaint
as if fully rewritten herein.
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The noxious odors, that entered Plaintiffs properties originated from the wood
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35.
By failing to reasonably construct, operate, repair and/or maintain its facility,
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Defendant has negligently created an unreasonable risk of harm by causing the invasion of
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noxious odors onto Plaintiffs properties. Such failures include, but are not limited to:
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a.
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b.
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c.
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d.
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e.
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f.
Inadequate design of air handling and oil scrubber systems for the retort door
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
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36.
As a direct and proximate result of the foregoing conduct of Defendant, Plaintiffs
suffered damages to their properties as alleged herein.
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37.
Plaintiffs did not consent to noxious odors to enter upon their properties.
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38.
By causing noxious odors by Defendant to physically invade Plaintiffs properties,
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disregard for the rights and safety of Plaintiffs created a nuisance which substantially and
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unreasonably interfered with Plaintiffs' use and enjoyment of their properties. Such
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a.
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loss of use and ability to enjoy the outside areas of Plaintiffs properties due to
the presence of noxious odors;
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b.
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c.
annoyance, and inconvenience, including but not limited to, being woken up
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noxious odors, and the inability to invite guests to Plaintiffs residences due to
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properties.
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39.
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
enjoyment of their properties constitutes a nuisance for which Defendant is liable to Plaintiffs
for all damages arising from such nuisance, including compensatory relief.
COUNT TWO
Trespass
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Plaintiffs restate the allegations set forth in all previous paragraphs of this Complaint
as if fully rewritten herein.
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maintain and/or operate its facility, which caused the invasion of Plaintiffs properties by
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noxious odors on intermittent and reoccurring dates. As a direct and proximate result of
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Defendants conduct, noxious odors entered and physically intruded upon Plaintiffs
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properties.
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42.
It was reasonably foreseeable that Defendants failure to properly construct, maintain
and/or operate its facility could result in an invasion of Plaintiffs possessory interests.
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As a further direct and proximate result of the foregoing conduct of Defendant,
Plaintiffs suffered substantial and continued damages to their properties as alleged herein.
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The noxious odors, which entered and physically invaded Plaintiffs properties and
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land interfered with Plaintiffs interests in the exclusive possession of said properties and land
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
45.
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Plaintiffs did not consent to noxious odors to physically enter and invade their land and
properties.
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Defendants actions, which resulted and continue to result in a trespass upon Plaintiffs
land and properties were, and continue to be, intentional, willful, negligent and made with a
knowing and conscious disregard for the rights and safety of Plaintiffs.
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COUNT THREE
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Negligence
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48.
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Plaintiffs restate the allegations set forth in all previous paragraphs of this Complaint
as if fully rewritten herein.
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49.
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constructed, maintained and/or operated its facility in that the facility caused noxious odors
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50.
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maintaining and/or operating the facility, Plaintiffs properties, on occasions too numerous to
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//
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
51.
Plaintiffs suffered physical damages to their properties as alleged herein. Such physical
damage includes, but is not limited to diminution in the value of Plaintiffs properties.
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52.
By failing to properly construct, maintain and/or operate its facility, Defendant failed
to exercise its duty of ordinary care and diligence so that noxious odors would not invade
Plaintiffs properties.
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53.
By failing to properly construct, maintain and/or operate its facility, Defendant has
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caused the invasion of Plaintiffs properties by noxious odors. Such failures, include, but are
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a.
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b.
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c.
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d.
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e.
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f.
Inadequate design of air handling and oil scrubber systems for the retort door
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h.
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
i.
Defendant knowingly breached its duty to exercise ordinary care and diligence
knew, or should have known upon reasonable inspection that such actions
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54.
As a direct and proximate result of the failure of Defendant to exercise ordinary care,
Plaintiffs residences were physically invaded by noxious odors.
COUNT FOUR
Gross Negligence
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55.
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Plaintiffs restate the allegations set forth in all previous paragraphs of this Complaint
as if fully rewritten herein.
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56.
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Defendants gross negligence was malicious and made with a conscious disregard for
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the rights and safety of Plaintiffs, which entitles Plaintiffs to an award of compensatory relief.
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JURY DEMAND
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59.
Plaintiff is entitled to recover prejudgment interest pursuant to ORS 82.010(1)(a).
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
60.
Plaintiff reserves the right to amend this Complaint to add a claim for punitive
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WHEREFORE, Plaintiffs, individually and on behalf of the proposed Class, pray for
judgment as follows:
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3.
Judgment in favor of Plaintiffs and the Class members and against Defendant;
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4.
Award Plaintiffs and the Class members compensatory damages, including pre-
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5.
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Defendant repair and/or correct the operation of its facility in a manner that is practically
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abatable and economically feasible as determined by Plaintiffs expert, so that odors no longer
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and/or practices that are violative of the rights of Plaintiffs and/or potential class members;
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An Order holding that entrance of the aforementioned noxious odors upon Plaintiffs
Orders for temporary, preliminary and permanent injunctive relief requiring that
An Order holding that Defendant cease and desist from engaging in such methods, acts
Award Plaintiffs and the Class members attorneys fees and costs; and
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204
9.
Respectfully submitted,
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Trial Attorneys:
Nicholas A. Kahl, OSB #101145
Nick Kahl, LLC
209 SW Oak Street, Suite 400
Portland, OR 97204
Tel: 971-634-0829
Fax: 503-227-6840
nick@nickkahl.com
Steven D. Liddle
Nicholas A. Coulson
Pro Hac Vice Motions to be Submitted
LIDDLE & DUBIN P.C.
975 E. Jefferson Avenue
Detroit, Michigan 48207-3101
Tel: (313) 392-0015
Fax: (313) (313) 392-0025
sliddle@ldclassaction.com
Attorneys for Plaintiffs
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p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204