IFF Motion To Dismiss

Case 3:21-cv-00012-BJD-MCR Document 17 Filed 05/18/21 Page 1 of 30 PageID 120
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JENNY WRIGHT, NATALIE SOUD, and

JAMES COBB on behalf of themselves and
all others similarly situated,
Plaintiffs,
vs. Case No. 3:21-cv-12-J-39MCR
IFF CHEMICAL HOLDINGS, INC.,

Defendant.
DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’

SECOND AMENDED COMPLAINT
TABLE OF CONTENTS
Page
Table of Contents .......................................................................................................ii

Table of Authorities ................................................................................................. iii
Introduction ............................................................................................................... 1
Background ................................................................................................................2
Legal Standard ...........................................................................................................4
Memorandum of Law ................................................................................................4
I. The Amended Complaint is (still) a shotgun pleading. ............................4
II. Plaintiffs do not state a viable claim for private nuisance. ....................... 5
III. Plaintiffs’ public nuisance claim must be dismissed.................................9
A. Plaintiffs have not alleged the necessary “special injury.” ................ 10
B. Alternatively, the Court should dismiss Plaintiffs’ public nuisance
claim and request for injunctive relief without prejudice under
the doctrine of primary jurisdiction. .................................................. 15
IV. Plaintiffs’ negligence claim fails as a matter of law. ............................... 19
A. Plaintiffs fail to allege facts supporting an inference that a
reasonable person would foresee the alleged harms. ....................... 20
B. Plaintiffs fail to allege any actions or inactions by IFF that
Plaintiffs claim are unreasonable. ...................................................... 21
Conclusion ...............................................................................................................23
Local Rule 3.01(g) Certification ............................................................................. 24
Certificate of Service ............................................................................................... 24
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Am. Energy Corp. v. Tex. E. Transmission, LP,

701 F. Supp. 2d 921 (S.D. Ohio 2010) ..................................................................6
Arch Ins. Co. v. Clements, Purvis & Stewart, P.C.,

850 F. Supp. 2d 1371 (S.D. Ga. 2011) .................................................................22
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................................................................4
Bair v. Cent. & S. Fla. Flood Control Dist.,

144 So. 2d 818 (Fla. 1962) ............................................................................ 14, 15
Banyan Cafeterias, Inc., No. 3 v. Faith Lutheran Church of Hialeah,

151 So. 2d 426 (Fla. 1963) .................................................................................. 10
Baptiste v. Bethlehem Landfill Co.

965 F.3d 214, 224–25 (3d Cir. 2020) ..................................................................9
Boucher v. Novotny,
102 So. 2d 132 (Fla. 1958) ............................................................................ 13, 14
Bower v. Hog Builders, Inc.,

461 S.W.2d 784 (Mo. 1970) ..................................................................................6
Brown v. Carnival Corp.,

202 F. Supp. 3d 1332 (S.D. Fla. 2016) ............................................................... 21
Carroll v. City of W. Palm Beach,

276 So 2d 491 (Fla. 4th DCA 1973) .................................................................... 13
Chapman v. Town of Redington Beach,

282 So. 3d 979 (Fla. 2d DCA 2019) ................................................................... 13
City of Ludlow v. Commonwealth,

56 S.W.2d 958 (Ky. 1933).....................................................................................6
Clay Elec. Co-Op., Inc v. Johnson,

873 So. 2d 1182 (Fla. 2003) .............................................................................. 20
iii
Coffie v. Fla. Crystals Corp.,

460 F. Supp. 3d 1297 (S.D. Fla. 2020) ................................................ 8, 9, 18, 19
Conn v. Seawind Enters., Inc.,

406 So. 2d 104 (Fla. 3d DCA 1981) ....................................................................23
N. Carolina ex rel. Cooper v. Tenn. Valley Auth.,

615 F.3d 291 (4th Cir. 2010)............................................................................... 16
Coover v. Neosho Ridge Wind LLC,

No. 5:19-cv-4064, 2019 WL 11695617 (D. Kan. Oct. 25, 2019)...........................6
Echevarria v. Taco Bell of Am., LLC,

No. 20-cv-22810, 2020 WL 5817237 (S.D. Fla. Sept. 30, 2020) ......................22
Flo-Sun, Inc. v. Kirk,

783 So. 2d 1029 (Fla. 2001) .................................................................... 16, 17, 19
Frost v. Berkeley Phosphate Co.,

20 S.E. 280 (S.C. 1894) ........................................................................................6
Gordon v. Target Corp.,

No. 07-cv-80412, 2008 WL 2557509 (S.D. Fla. June 23, 2008) .......... 21, 22, 23
Gunter v. Advanced Corr. Healthcare, Inc.,

844 F. App’x 189 (11th Cir. 2021).........................................................................4
Harding v. NCL Bahamas Ltd.,

90 F. Supp. 3d 1305 (S.D. Fla. 2015) .................................................................22
Jackson v. BellSouth Telecomms.,

372 F.3d 1250 (11th Cir. 2004) ............................................................................4
King v. Columbian Carbon Co.,

152 F.2d 636 (5th Cir. 1945) .................................................................................6
Lombardozzi v. Taminco US Inc.,

No. 3:15-cv-533, 2016 WL 4483856 (N.D. Fla. Aug. 24, 2016) ........................ 19
Longhini v. J.U.T.A., Inc.,

No. 6:17-cv-987, 2018 WL 1305909 (M.D. Fla. Mar. 13, 2018) .......................... 7
Lucero v. Trosch,
121 F.3d 591 (11th Cir. 1997) ................................................................................6
iv
Maxwell v. Lax,
292 S.W.2d 223 (Tenn. App. 1954) ......................................................................6
Maykut v. Plasko,
365 A.2d 1114 (Conn. 1976) ..................................................................................6
McClosky v. Martin,
56 So. 2d 916 (Fla. 1951)....................................................................................... 7
Millman v. United Techs. Corp.,

No. 1:16-cv-312, 2019 WL 6112559 (N.D. Ind. Nov. 18, 2019).......................... 15
Novak v. Cobb Cnty. Kennestone Hosp. Auth.,

74 F.3d 1173 (11th Cir. 1996) ................................................................................ 5
Pelican Marine Carriers Inc. v. City of Tampa,

No. 90-cv-407, 1991 WL 325793 (M.D. Fla. July 30, 1991) ................................9
Pinto v. Collier Cnty.,

No. 2:19-cv-551, 2019 WL 5722172 (M.D. Fla. Nov. 5, 2019) ............................. 5
Prior v. White,
180 So. 347 (Fla. 1938) ................................................................................. 6, 7, 9
Rhodes v. E.I. du Pont de Nemours & Co.,

636 F.3d 88 (4th Cir. 2011) ................................................................................ 15
Roebuck v. Sills,
306 So. 3d 374 (Fla. 1st DCA 2020)..................................................................... 7
Russell Corp. v. Sullivan,

790 So. 2d 940 (Ala. 2001) ..................................................................................6
Russell v. State,
69 N.E. 482 (Ind. 1904) .......................................................................................6
Sarhan v. Miami Dade Coll.,

800 F. App’x 769 (11th Cir. 2020) .......................................................................4
Scribner v. Summers,
84 F.3d 554 (2d Cir. 1996) ...................................................................................6
Thomas v. Wade,
37 So. 743 (Fla. 1904) .............................................................................. 10, 11, 12
v
Town of Rentz v. Roach,

115 S.E. 94 (Ga. 1922) ...........................................................................................6
Yeyille v. Miami Dade Cnty. Pub. Sch.,

643 F. App’x 882 (11th Cir. 2016) ........................................................................ 5
Zinn v. United States,

835 F. Supp. 2d 1280 (S.D. Fla. 2011) .............................................................. 20
Other Authorities
Rest. (2d) of Torts § 821C .................................................................................... 9, 16
Fed. R. Civ. P. 8........................................................................................................22
Fed. R. Civ. P. 12(b)(6) ..............................................................................................4
vi
Defendant, IFF Chemical Holdings, Inc. (“IFF”), moves to dismiss the Sec-
ond Amended Complaint (Doc. 16) pursuant to Rule 12(b)(6), Fed. R. Civ. P.
INTRODUCTION
Attempting to usurp state and local agencies’ enforcement authority, Plain-
tiffs filed this action seeking millions of dollars on behalf of a putative class spread
over more than 23 square miles for odors allegedly emanating from IFF Chemical
Holdings, Inc.’s (“IFF”) Jacksonville plant (the “Plant”). Plaintiffs purport to bring
claims for public and private nuisance and for negligence on behalf of thousands
of putative class members for diminution in property value and interference with
the use and enjoyment of their property. Not only does Plaintiffs’ complaint violate
basic pleading standards, Plaintiffs ignore the special requirements necessary to
bring nuisance claims under Florida law and cannot identify a specific duty owed
by IFF to Plaintiffs who reside more than 3.7 miles away.
Plaintiffs do not bother to separate their private and public nuisance allega-
tions, and neither are sufficient. It is well settled in Florida that private nuisance
claims are limited to one or a “few” plaintiffs who have adjacent or adjoining prop-
erties to the alleged offender. Plaintiffs live more than 3.7 miles away and seek to
represent thousands of class members, some of whom live as far as five miles from
the Plant. Plaintiffs therefore cannot bring a private nuisance claim.
Plaintiffs’ public nuisance claim also fails because a public nuisance claim
would require Plaintiffs to plead a “special injury,” and they cannot do so. They
explicitly allege their injuries affect an entire community with nothing distinctive
1
about Plaintiffs (much less the thousands they seek to represent). Even if Plaintiffs
had a special injury, the Florida Supreme Court has made clear that, absent unu-
sual circumstances not present here, courts should defer to the agencies tasked
with protecting the public from environmental nuisances, lest they allow private
parties to usurp the regulatory scheme enacted by the Legislature. Plaintiffs’ own
allegations show that multiple agencies are actively addressing the alleged nui-
sance. The Court should defer to those agencies and allow the regulatory process
prescribed by the Administrative Procedures Act to run its course, particularly
given the other emitters in the area.
As for Plaintiffs’ negligence claims, they do not contain sufficient factual in-
formation to show IFF owed a duty to thousands of residents living several miles
from the Plant. More glaringly still, Plaintiffs do not allege any factual allegations
other than the mere existence of the alleged odors to support their claim that IFF
somehow committed a breach. Plaintiffs recite the elements of negligence and at-
tempt to support them with conclusory statements, but they fail to provide any
factual allegations to support their negligence claims.
For all these reasons, the Court should dismiss Plaintiffs’ Complaint.
BACKGROUND 1
On January 6, 2021, Plaintiffs filed a two-count complaint against IFF and
International Flavors & Fragrances Inc. (Doc. 1.) On January 7, 2021, the Court
1In accordance with the standard applicable to a motion to dismiss, the well-pleaded allegations
of Plaintiffs’ operative pleading are assumed true for purposes of this Motion only.
2
dismissed Plaintiffs’ complaint sua sponte as “an impermissible shotgun pleading”
because each count adopted all preceding allegations. (Doc. 3 at 3.) The Court fur-
ther noted that failure to file an amended pleading that “conforms with the direc-
tives in this Order, the Federal Rules of Civil Procedure, and the Local Rules . . .
could result in dismissal of this action.” (Id.) On January 15, 2021, Plaintiffs filed
an Amended Complaint (Doc. 4) and, on May 4, 2021, filed a Second Amended
Complaint (Doc. 16), dropping International Flavors & Fragrances Inc. as a party.
In the Second Amended Complaint, Plaintiffs allege IFF owns and operates
the Plant, where aroma precursors are manufactured. (Doc. 16 ¶¶ 20–23.) Plain-
tiffs claim the Plant emits noxious odors that physically invade Plaintiffs’ property.
(Id. ¶ 25.) Indeed, Plaintiffs’ allege “the odors have dispersed across all public and
private land” as far as five miles away. (Id. ¶¶ 40, 45.) Plaintiffs allege that all mem-
bers of the public experience the odors but say the odors affect owners, occupants,
and renters of residential property within a proposed “Class Area” spanning ap-
proximately five miles southeast of the Plant (the “putative class”) differently. (Id.
¶¶ 42, 45.) Specifically, Plaintiffs claim that the same odors experienced by the
public generally affect members of the putative class “in the form of diminished
property values and/or loss of use and enjoyment” of private property. (Id.)
Based on these allegations, Plaintiffs assert a single claim for both public and
private nuisance (id. at 13) and a claim for negligence (id. at 19).
3
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must con-
tain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plau-
sible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be “plausible,” a complaint “must
go beyond merely pleading the ‘sheer possibility’ of unlawful activity” and “offer
factual content that allows the court to draw the reasonable inference that the de-
fendant is liable for the misconduct alleged.” Gunter v. Advanced Corr.
Healthcare, Inc., 844 F. App’x 189, 192 (11th Cir. 2021) (internal quotation marks
omitted). Importantly, “the tenet that a court must accept as true all of the allega-
tions contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S.
at 678. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.; see also Jackson v. BellSouth Tele-
comms., 372 F.3d 1250, 1262 (11th Cir. 2004) (“[C]onclusory allegations . . . or le-
gal conclusions masquerading as facts will not prevent dismissal.”).
MEMORANDUM OF LAW
I. The Amended Complaint is (still) a shotgun pleading.
“Shotgun pleadings violate [Rule] 8’s requirement that a complaint contain
a short and plain statement of the claim.” Sarhan v. Miami Dade Coll., 800 F.
App’x 769, 771 (11th Cir. 2020). This Court previously explained that shotgun
pleadings include “those that do not separate each cause of action or claim for relief
into a different count” and “those that . . . are replete with conclusory, vague, and
4
immaterial facts not obviously connected to any particular cause of action.” Yeyille
v. Miami Dade Cnty. Pub. Sch., 643 F. App’x 882, 884 (11th Cir. 2016) (internal
quotation marks omitted). In their most recent complaint, Plaintiffs continue to
commit both of these violations.
First, Plaintiffs improperly amalgamate two distinct causes of action—public
nuisance and private nuisance—into a single count. (Doc. 16 at 13.) This is a quin-
tessential shotgun pleading. Novak v. Cobb Cnty. Kennestone Hosp. Auth., 74 F.3d
1173, 1175 & n.5 (11th Cir. 1996); see also Pinto v. Collier Cnty., No. 2:19-cv-551,
2019 WL 5722172, at *2 (M.D. Fla. Nov. 5, 2019) (“[S]ome of the counts improperly
mix several different causes of action and/or claims for relief. . . . This improper
mixing of claims makes it difficult for Defendants to respond . . . and for the Court
to appropriately adjudicate this case.”).
Second, Plaintiffs litter their pleading with purported media reports and
hearsay from non-parties that are superfluous to—and appear designed to distract
from Plaintiffs’ failure to properly allege—the elements of the claims asserted. (See,
e.g., Doc. 16 ¶¶ 36, 58, 62–63.) These “vague, and immaterial facts not obviously
connected to any particular cause of action” should be removed. Yeyille, 643 F.
App’x at 884. For both of these reasons, Plaintiffs’ Second Amended Complaint
should be dismissed as a shotgun pleading, again.
II. Plaintiffs do not state a viable claim for private nuisance.
In a single count, Plaintiffs allege that the odors from the Plant are both a
public and a private nuisance. (See Doc. 16 at 13.) Notwithstanding the improper
5
conflation of causes of action noted above (see Part I, supra.), the allegations in
Plaintiffs’ amalgamated nuisance count fail to state either type of claim.
Plaintiffs’ private nuisance claim cannot be maintained because it is asserted
on behalf of thousands of individuals who reside miles away from the purported
nuisance. “A private nuisance is a private wrong to an individual” or a small num-
ber of individuals. Prior v. White, 180 So. 347, 355 (Fla. 1938). Applying this prin-
ciple, courts have identified two key characteristics of private nuisances, neither
one of which is satisfied here. First, courts have applied numerical limitations,
holding that a harm that would otherwise constitute a private nuisance “becomes
a public nuisance when it affects an entire community or any considerable number
of persons.” Prior, 180 So. at 355; see also King v. Columbian Carbon Co., 152 F.2d
636, 638 (5th Cir. 1945) (“A private nuisance . . . produces damages to but one or
a few persons and cannot be said to be public.” (citing 2 BOUVIER’S LAW DICTION-
ARY, Rawle’s Third Revision, at 2379)). 2
Second, courts have applied geographic limitations, holding that the focus
of a private nuisance claim is not a wide geographic area or an entire neighborhood
or community, but “adjacent landowner[s]” and “adjoining propert[ies].”
2 The same requirement has been applied across numerous jurisdictions over more than a century.
See, e.g., Coover v. Neosho Ridge Wind LLC, No. 5:19-cv-4064, 2019 WL 11695617, at *2 n.2 (D.
Kan. Oct. 25, 2019); Am. Energy Corp. v. Tex. E. Transmission, LP, 701 F. Supp. 2d 921, 934 (S.D.
Ohio 2010); Russell Corp. v. Sullivan, 790 So. 2d 940, 951 (Ala. 2001); Lucero v. Trosch, 121 F.3d
591, 599 (11th Cir. 1997); Scribner v. Summers, 84 F.3d 554, 559 (2d Cir. 1996); Maykut v. Plasko,
365 A.2d 1114, 1118 (Conn. 1976); Bower v. Hog Builders, Inc., 461 S.W.2d 784, 796 (Mo. 1970);
Maxwell v. Lax, 292 S.W.2d 223, 226 (Tenn. App. 1954); City of Ludlow v. Commonwealth, 56
S.W.2d 958, 959 (Ky. 1933); Town of Rentz v. Roach, 115 S.E. 94, 94 (Ga. 1922); Russell v. State,
69 N.E. 482, 484 (Ind. 1904); Frost v. Berkeley Phosphate Co., 20 S.E. 280, 281 (S.C. 1894).
6
See, e.g., Roebuck v. Sills, 306 So. 3d 374, 378 (Fla. 1st DCA 2020) (emphasis
added and internal quotation marks omitted); see also McClosky v. Martin, 56
So. 2d 916, 918 (Fla. 1951) (addressing nuisance claim by adjacent landowners).
Here, Plaintiffs run afoul of both the numerical and the geographic limitations.
Far from affecting only a few people, the odors Plaintiffs allege are wide-
spread, allegedly “forc[ing] a whole community indoors.” (Doc. ¶ 36(a)(vi) (inter-
nal quotation marks omitted).) Plaintiffs say the odors “have dispersed across all
public and private land.” (Id. ¶¶ 40, 45.) In stark contrast to a “private wrong done
to an individual,” Prior, 180 So. at 355, Plaintiffs purport to bring claims on a class-
wide basis, indiscriminately encompassing every resident within an arbitrary geo-
graphic boundary. (Doc. 16 ¶ 45.) Plaintiffs allege “thousands” of affected persons
“so numerous that joinder is impracticable.” (Id. ¶ 47.) These are clearly alleged
harms that “affect[ ] . . . [a] considerable number of persons.” Prior, 180 So. at 355.
Plaintiffs likewise allege harms that go far beyond “adjacent” or “adjoining”
properties. Roebuck, 306 So. 3d at 378. Plaintiffs themselves reside more than 3.7
miles away from the Plant (id. ¶¶ 3–6), and they purport to represent others who
live up to five miles away (Doc. 16 ¶¶ 3–6, 40, 45, 47). 3 This case therefore does
not satisfy the proximity requirements to maintain a private nuisance claim—it
plainly purports to address public, community-wide issues.
3Although not alleged, the distances between the Plant and Plaintiffs’ residences is a fact of which
the Court may take judicial notice. See, e.g., Longhini v. J.U.T.A., Inc., No. 6:17-cv-987, 2018 WL
1305909, at *3 n.3 (M.D. Fla. Mar. 13, 2018). For the Court’s convenience, these distances can be
easily calculated using the “measure distance” feature of Google Maps. See id.
7
Courts in Florida do not hesitate to look past a plaintiff’s labels to determine
whether they assert a public or private nuisance. Otherwise, plaintiffs could easily
circumvent the special limitations applicable to public nuisance claims—including
the special-injury rule and the primary jurisdiction doctrine (see Parts III.A.–B.,
infra)—through artful pleading. For example, in Coffie v. Florida Crystals Corp.,
the plaintiffs attempted to evade the primary jurisdiction doctrine by claiming they
were asserting “private nuisance” claims. 460 F. Supp. 3d 1297, 1310 (S.D. Fla.
2020). The court, relying on Prior v. White, among other Florida Supreme Court
precedents, saw through this attempt at artful pleading. Because the plaintiffs as-
serted claims on behalf of “‘[a]ll persons . . . who have resided in the Affected Area,”
they were asserting harms common to an entire community. Id. at 1310–11. Thus,
“despite Plaintiffs’ labels,” the claim was for a public nuisance, and it was subject
to rigorous application of the primary jurisdiction doctrine. Id.
The same logic applies here. Plaintiffs allege harm to thousands of people
defined solely by their common residence in a broad “Class Area.” (Doc. 16 ¶¶ 45,
47.) They therefore allege harm to—and purport to assert claims on behalf of—an
entire community. Indeed, Plaintiffs’ own pleading states that the alleged odors
“‘force a whole community indoors.’” (Doc. 4 ¶ 36(a)(vi) (emphasis added).) Ac-
cordingly, to the extent the claims in Count I purport to be for private nuisance,
they should be dismissed with prejudice. 4
4 Plaintiffs may attempt to rely on cherry-picked authorities from other jurisdictions that have
rejected a rule that harms affecting a considerable number of persons are public rather than pri-
vate nuisances. Respectfully, this case is governed by Florida law, and the Florida Supreme Court
8
III. Plaintiffs’ public nuisance claim must be dismissed.
Unlike a private nuisance, a public nuisance is “an unreasonable interfer-
ence with a right common to the general public.” Pelican Marine Carriers Inc. v.
City of Tampa, No. 90-cv-407, 1991 WL 325793, at *4 (M.D. Fla. July 30, 1991).
“It is such an inconvenience or troublesome offense as annoys the whole commu-
nity . . . and not merely some particular person.” Coffie, 460 F. Supp. 3d at 1310.
Florida has delegated the power to remedy alleged public nuisances to competent
agencies. (See Part III.B., infra; see also Rest. (2d) of Torts § 821C cmt. b. (explain-
ing that invasions of public rights “should be left to be remedied by action of public
officials”).) This makes sense because harm from “[a] common or public nuisance
affects the public.” Prior, 180 So. at 355. For these reasons, private parties are al-
lowed to bring lawsuits to address public nuisances in very limited circumstances.
Specifically, they must allege a “special injury,” which is an “injury to [themselves]
different in kind, as opposed to a difference in degree, from that sustained by other
has clearly spoken on what distinguishes a private nuisance from a public nuisance. This Court
should decline to rely on authorities from jurisdictions where the state law at issue did not hold,
as the Florida Supreme Court has held, that a particular harm “becomes a public nuisance when
it affects an entire community or any considerable number of persons.” Prior, 180 So. at 355.
For example, in Baptiste v. Bethlehem Landfill Co., the U.S. Court of Appeals for the Third Circuit
rejected a rule that a private nuisance cannot encompass harms to large numbers of persons. 965
F.3d 214, 224–25 (3d Cir. 2020). However, “neither party ha[d] submitted a decision of the Penn-
sylvania Supreme Court directly addressing the question of whether there is a limit on the number
of plaintiffs that can recover private property damages on a nuisance theory.” Id. at 225. Here, by
contrast, there is a Florida Supreme Court decision directly on point. See Prior, 180 So. at 355.
Moreover, the Baptiste court acknowledged that “some courts have stated that a private nuisance
is limited to a ‘relatively few persons’ or a ‘determinate number of persons.’” 965 F.3d at 226. The
Florida Supreme Court is just such a court. Thus, while the Baptiste court found that similar prin-
ciples had not “gained any traction in Pennsylvania,” the same is not true in Florida. For that
reason, Baptiste and similar cases from foreign jurisdictions are inapposite. Id.
9
members of the community.” Banyan Cafeterias, Inc., No. 3 v. Faith Lutheran
Church of Hialeah, 151 So. 2d 426, 428 (Fla. 1963).
Plaintiffs’ public nuisance claim should be dismissed for two reasons. First,
Plaintiffs cannot satisfy the “special injury” requirement to maintain a claim for
public nuisance, necessitating a dismissal with prejudice. Alternatively, the Court
should defer to the “primary jurisdiction” of the administrative agencies already
reviewing the same harms alleged by Plaintiffs, and dismiss the public nuisance
claim and request for injunctive relief without prejudice to allow for agency review.
A. Plaintiffs have not alleged the necessary “special injury."
To qualify as a “special injury” for purposes of a private claim for public nui-
sance, an injury must be different in kind from injuries to other members of the
community “under similar circumstances.” Thomas v. Wade, 37 So. 743, 743 (Fla.
1904). When the same kind of deprivation the plaintiff alleges is also experienced
by others who are similarly situated in the community, the injury is not “special.”
Id. Here, Plaintiffs allege that odors have dispersed across all public and private
lands, depriving the entire community of clean, odor-free air. (Doc. 16 at ¶¶ 42,
63(d).) Even though the lack of odor-free air allegedly diminishes Plaintiffs’ prop-
erty values and ability to use and enjoy their property, the very same deprivation
also impacts others who are not part of the putative class. Under Florida law, this
makes Plaintiffs’ allegations insufficient to state a special injury.
The facts of Thomas are instructive. In Thomas, the plaintiff brought suit to
abate a nuisance where defendants erected a bridge across a navigable stream that
10
obstructed navigation. Id. Plaintiff alleged he had a “special and particular injury
and damage . . . different from that of the public” because the bridge destroyed his
steamboat business and damaged his boat that sat idle. Id. The Florida Supreme
Court rejected this as a “special injury,” explaining:
There is no showing of injury or damage to complainant different in kind

from that of any other person who might undertake to use the stream for
purposes of navigation under similar circumstances. The only right the
complainant shows he is deprived of is the public right of naviga-
tion in the stream. An injury to this right can be redressed only
at the suit of the proper public authorities.
Id. (emphasis added). Even though the Thomas plaintiff’s business harms and lost
profits were different than harms faced by others in the community who did not
have businesses navigating the blocked river (and therefore were not “under simi-
lar circumstances”), the Court concluded that the underlying deprivation was the
same, so the injury was not special. Id.
Similar to the plaintiff in Thomas, Plaintiffs here have not alleged a depriva-
tion of a right that is different in kind and degree from others in the community—
their injuries flow from the same deprivation allegedly affecting the entire commu-
nity. Plaintiffs attempt to allege a special injury by stating they have suffered dam-
ages to their property “relating to the use and enjoyment of land and property” and
“diminution of property values.” (Doc. 16 ¶ 64). Yet Plaintiffs also claim that IFF’s
“facility produces highly odiferous emissions which are regularly dispersed
across the surrounding neighborhood,” that IFF’s “‘business should not be
able to force a whole community indoors,’” and “[t]he odors have dispersed
11
across all public and private land.” (Id. ¶¶ 58(h)(i)(1), 62(a)(vi), 63(b) (empha-
ses added).) Following the Court’s reasoning in Thomas, the only right IFF’s al-
leged conduct deprived Plaintiffs of is the right to breathe air without odor. “An
injury to this public right can be redressed only at the suit of the proper public
authorities.” Thomas, 37 So. at 743. Thus, Plaintiffs (and the putative class of thou-
sands Plaintiffs seek to represent) have not suffered an injury that is different in
kind and degree from the rest of the community “under similar circumstances.” Id.
Plaintiffs may argue that the alleged diminution in value to Plaintiffs’ prop-
erty is “special” relative to the annoyance and discomfort experience by a hypo-
thetical community passerby. As Thomas makes clear, Florida law does not allow
plaintiffs to circumvent the special-injury requirement so easily. The focus is on
the underlying deprivation and how that deprivation affects people “under similar
circumstances,” not on nuanced distinctions in the particular way the same depri-
vation affects every conceivable person. Thomas, 37 So. at 743. Thus, just as the
diminution in the value of the Thomas plaintiff’s business was insufficient to show
a special injury because it flowed from the same deprivation the entire community
faced, the same is true here. Plaintiffs’ alleged injuries all flow from the very same
deprivation allegedly faced by the community in general—i.e., the right to be free
from noxious odors. Id. Plaintiffs cannot allege a “special injury” giving them
standing merely by claiming that the same deprivation experienced by the “whole
community” affects people who are not “under similar circumstances” in slightly
different ways. Thomas, 37 So. at 743.
12
Numerous other Florida cases illustrate courts’ unwillingness to allow plain-
tiffs to circumvent the “special injury” requirement for widespread harms. For ex-
ample, in the zoning context, 5 the Florida Supreme Court rejected an effort, iden-
tical to Plaintiffs’ here, to show a special injury by alleging depreciation of the value
of their property. Boucher v. Novotny, 102 So. 2d 132, 136 (Fla. 1958). Although
the Boucher plaintiffs alleged diminished property values, the Court found “the
strength of the allegation [was] destroyed” because the plaintiffs’ own allegations
showed that “the depreciation of land values . . . is an injury suffered by the com-
munity.” Id. (emphasis added). Because the “depreciation in land values” occurred
“throughout the community,” it was not “special,” and the plaintiffs did not have
standing to assert a private right of action. 6 Id.
5 Zoning law features a similar “special injury” rule derived from “the common law governing
nuisance.” Chapman v. Town of Redington Beach, 282 So. 3d 979, 983 n.3 (Fla. 2d DCA 2019).
Notably, courts have occasionally enforced a “more lenient application” of the special injury rule
in the zoning context due to “‘changed conditions, including increased population growth and
density.’” Id. at 986 (quoting Renard v. Dade Cnty., 261 So. 2d 832, 837–38 (Fla. 1972)). How-
ever, there is no indication that the “more lenient application” applies outside of the zoning con-
text, and Plaintiffs could not satisfy it even if it did.
The more lenient standard for zoning cases depends on a showing of geographic proximity. Id. at
84–85 (“[A]n owner of property which is adjacent to or nearby land upon which there is a zoning
ordinance violation may, by virtue of proximity, be peculiarly affected . . . even if his or her inju-
ries might at some level of generality be described as similar to those of other community mem-
bers.” (emphasis added)). By contrast, if a plaintiff alleges harms that are “sufficiently removed
from the area in which the alleged . . . violation was occurring . . . the plaintiff’s damages [are] no
different in kind from that of other property owners in the general area.” Carroll v. City of W.
Palm Beach, 276 So 2d 491, 493 (Fla. 4th DCA 1973).
Unlike in Chapman and the cases cited therein, Plaintiffs are not adjacent to the Plant or even
close to it. They reside more than 3.7 miles away and purport to represent others as far as 5 miles
away. (Doc. 4 ¶¶ 3–6, 40, 45.) Consequently, Plaintiffs’ “damages [are] no different in kind from
that of other property owners in the general area,” Carroll, 276 So 2d at 493, and they cannot
satisfy even the lenient form of the special-damages rule applied in zoning cases.
6 Boucher and similar holdings are fatal to Plaintiffs’ attempt to show their alleged injury is “spe-
cial” relative to hypothetical passersby who are bothered by odors but suffer no property damage.
13
Here, as noted above, Plaintiffs assert that odors have dispersed across and
impacted public and private lands in the surrounding neighborhoods. (Doc. 16
¶ 40.) While Plaintiffs claim they and other residents have suffered diminution in
property value, like Boucher, all non-residential properties within the proposed
class area (even outside of the proposed class area) would, based on Plaintiffs’ the-
ories, also suffer property diminution. Thus, Plaintiffs’ injuries have “occurred
throughout the community” and are not special. Id at 136.
Finally, the sheer number of putative class members who purportedly all
share the same injury—i.e., property diminution and interference with use and en-
joyment—suggests that that the alleged injury is not “special.” (See Doc. 16 ¶ 47.)
Many courts, including the Florida Supreme Court, have refused to find a special
injury for claims brought on behalf of a large class, notwithstanding allegations of
“depreciating and lowering” property values. See, e.g., Bair v. Cent. & S. Fla. Flood
Control Dist., 144 So. 2d 818, 819 (Fla. 1962). In Bair, a group of landowners
brought a nuisance claim alleging “a nuisance by alleged pollution of waters adja-
cent to their properties.” Id. As here, the Bair plaintiffs brought a putative class
action “‘for themselves and for the benefit of all other similarly situated owners’
who were ‘so numerous that it is impractical to bring all of said owners . . . as indi-
vidual party-plaintiffs.’” Id. Even though the Bair plaintiffs (unlike the instant
Plaintiffs) were “adjacent” to the alleged nuisance and claimed that they suffered
If showing a “special injury” were so simple, no property owner would ever fail to do so, and the
requirement for a “special injury” would essentially be eviscerated.
14
decreased property values, the Court still held that “there [was] no showing of in-
jury or damage of the essential character different from that which might be suf-
fered by the populace generally.” Id. at 821.
Courts in other jurisdictions have likewise held that, by asserting a private
action for public nuisance on behalf of a large putative class, plaintiffs fatally un-
dermine their ability to allege a special injury different from others in the commu-
nity. Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 97–98 (4th Cir. 2011)
(“[B]ecause the plaintiffs allege that all the water customers exposed to PFOA since
2005 have suffered the same personal injury, the plaintiffs’ own pleadings refute
their contention of ‘special injury.’”); Millman v. United Techs. Corp., No. 1:16-cv-
312, 2019 WL 6112559, at *4 (N.D. Ind. Nov. 18, 2019) (“Since the Plaintiffs seek
class certification, they necessarily lack ‘a special or peculiar injury.’”).
In sum, Plaintiffs allege injuries tracing back to the same deprivation suf-
fered by a “‘whole community’” numbering in the thousands due to odors spread
across “all public and private land.” (Doc. 16 ¶¶ 62(a)(vi), 63(b)). Accordingly,
Plaintiffs cannot establish a “special injury” and, for that reason, lack standing to
bring a private claim for a public nuisance.
B. Alternatively, the Court should dismiss Plaintiffs’ public

nuisance claim and request for injunctive relief without
prejudice under the doctrine of primary jurisdiction.
“The doctrine of primary jurisdiction dictates that when a party seeks to in-
voke the original jurisdiction of a trial court by asserting an issue which is beyond
the ordinary experience of judges and juries, but within an administrative agency’s
15
special competence, the court should refrain from exercising its jurisdiction over
that issue until such time as the issue has been ruled upon by the agency.” Flo-Sun,
Inc. v. Kirk, 783 So. 2d 1029, 1036–37 (Fla. 2001). The doctrine “enables a court
to have the benefit of an agency’s experience and expertise in matters with which
the court is not as familiar, protects the integrity of the regulatory scheme . . . and
promotes consistency and uniformity in areas of public policy.” Id. at 1037.
The Florida Supreme Court has applied this doctrine with special force to
public nuisance claims alleging environmental harms. Id. at 1040. This is particu-
larly true following enactment of the modern Administrative Procedures Act be-
cause its “impressive arsenal of varied and abundant remedies for administrative
error require[d] judicial freshening of the doctrine[ ] of primary jurisdiction . . .
and greater judicial deference to the legislative scheme.” Id. (internal quotation
marks omitted). Courts outside of Florida have likewise counseled against allowing
plaintiffs “to use vague public nuisance standards to scuttle . . . carefully created
system[s] for accommodating the need for . . . clean air.” N. Carolina ex rel. Cooper
v. Tenn. Valley Auth., 615 F.3d 291, 296 (4th Cir. 2010). Otherwise, courts would
supplant carefully considered legislative schemes with “a confused patchwork of
standards, to the detriment of industry and environment alike.” Id.; see also Rest.
(2d) of Torts § 821C cmt. b (1979).
Plaintiffs’ allegations show that the doctrine of primary jurisdiction requires
dismissal. Just as in Kirk, see 783 So. 2d at 1032, Plaintiffs in this case assert a
public nuisance claim and seek injunctive relief based on allegations that chemical
16
emissions are damaging surrounding neighborhoods. (See, e.g., Doc. 4 ¶¶ 27, 29,
33.) And, whereas the Kirk plaintiffs attempted to evade the primary jurisdiction
doctrine by alleging that government complicity made reliance on agency regula-
tion futile, see 783 So. 2d at 1032, here, Plaintiffs allege active regulatory efforts by
multiple government agencies with no explanation why the agencies’ efforts would
not be sufficient or should not be entitled to deference. (See Doc. 4 ¶ 38.)
Specifically, Plaintiffs allege the City of Jacksonville Environmental Quality
Division (“EQD”) issued IFF a citation related to the odors from the Plant. (Id.
¶ 38(d).) Plaintiffs also allege that EQD has investigated public complaints, held a
town hall, and that there are ongoing “administrative actions” involving the odor
emissions being complained of by the Plaintiffs. (Id. ¶¶ 38, 45.) Plaintiffs also
acknowledge that the Florida Department of Environmental Protection (“FDEP”)
has issued IFF a permit and that regulations of the FDEP and the Jacksonville En-
vironmental Protection Board apply to the activity Plaintiffs allege. (Id. ¶ 38(d).)
These active regulatory efforts, pending in multiple agencies, counsel strongly in
favor of judicial restraint. See Kirk, 783 So. 2d at 1041. As was true in Kirk:
[i]n this case it is abundantly apparent that the comprehensive legislative

scheme established to deal with environmental concerns is aptly suited to
address the complex technical issues which may arise in this case. Specifi-
cally, the scheme now in force extensively controls pollutant discharge, re-
quires comprehensive permitting, establishes air and water quality stand-
ards . . . . This legislative scheme is implemented by numerous volumes of
regulations containing extensively detailed, scientific criteria and is en-
forced by agencies having the required experience and expertise, such as the
DEP. These are not simple, routine matters which may be easily understood
by trial judges and juries.
Id. at 1040. The trial court’s reasoning in Kirk, which the Florida Supreme Court
17
upheld, also applies:
If [Plaintiffs] were granted the relief prayed for in their Amended Com-
plaint, the result would be to have this Court substitute its judgement for
that of the Florida Legislature, the Florida Department of Environmental
Protection, the [Environmental Protection Agency], and other state and fed-
eral agencies as it relates to the environmental laws, rules, regulations and
standards under which [IFF’s] activities are controlled and regulated. This
would require the Court to make decisions and set standards with regard to
numerous areas of environmental regulation, responsibility for which has
been delegated to various state and federal regulatory agencies, and would
further require this Court to develop the resources and special expertise
which these agencies possess to control air and water pollution and to pro-
tect the environment and the public health of [Jacksonville]. The simple fact
is that the judicial branch is neither possessed of the technical expertise nor
would it be appropriate for it to entertain jurisdiction over a public nuisance
complaint such as the one pleaded by [Plaintiffs] here. To do so would create
a substantial risk of inconsistent requirements among the separate
branches of state and federal government and would allow claims to be ad-
vanced which are not cognizable in this Court under controlling case law.
Id. at 1032–33 (internal quotation marks omitted).
Other district courts in Florida have applied the same reasoning in refusing
to allow public nuisance claims to usurp agency regulation of environmental air
quality. For example, in Coffie, the court explained that “air quality in Florida is
monitored and regulated by the FDEP, which sets standards for air quality” and
that “Florida law does not allow claims [for public nuisance and injunctive relief]
to bypass administrative remedies.” Coffie, 460 F. Supp. 3d at 1309–10. Even
though the plaintiffs in Coffie attempted to evade the holding in Kirk by styling
their claim as one for private nuisance rather than public nuisance, the court rec-
ognized that, “despite [p]laintiffs’ labels, the inclusion of all persons who have re-
sided in the Affected Areas makes [their] claims for a public nuisance—a nuisance
that causes damage or inconvenience to the public generally.” Id. at 1311.
18
Plaintiffs here take an identical approach, purporting to bring their claims
on behalf of “[a]ll owner/occupants and renters of residential property residing
within the area enclosed” by a geographic boundary—i.e., the affected area. (Doc.
4 ¶ 47.) Just as in Coffie, the Court should dismiss Plaintiffs’ public nuisance claim
and allow the relevant agencies to carry out the administrative process entrusted
to them by the Legislature. 7 460 F. Supp. 3d at 1311; see also Lombardozzi v.
Taminco US Inc., No. 3:15-cv-533, 2016 WL 4483856, at *1 (N.D. Fla. Aug. 24,
2016) (dismissing a request for injunctive relief that “impermissibly intrude[d] on
Florida’s comprehensive regulatory scheme for environmental pollution”).
IV. Plaintiffs’ negligence claim fails as a matter of law.
Plaintiffs seek to impose a nearly limitless duty on IFF to prevent all odors
from affecting anyone within a 23 square mile area. Florida law does not support
such unending tort liability. To state a negligence claim, Plaintiffs must allege facts
sufficient to plausibly allege the following elements:
(1) “[a] duty, or obligation, recognized by the law, requiring [IFF] to

conform to a certain standard of conduct, for the protection of others
against unreasonable risks”; (2) “[a] failure on [IFF’s] part to conform to the
standard required: a breach of the duty . . .”; (3) “[a] reasonably close causal
connection between the conduct and the resulting injury” also known as
7Plaintiffs do not allege any facts that would support the limited exceptions to the primary juris-
diction doctrine set forth in Kirk. 783 So. 2d at 1038. For example, there is no “compelling reason
why the APA . . . does not avail the complainants in their grievance.” Id. Nor do Plaintiffs “allege
a lack of general authority in the agency” or “that the APA has no remedy for it.” Id. Plaintiffs also
cannot show any “illegal conduct by the agency [and] that the APA cannot remedy that illegality”
or that the administrative agencies are “ignoran[t] of the law, the facts, or public good [and] that
the Act provides no remedy.” Id. Finally, Plaintiffs cannot show that “the agency ignores or refuses
to recognize related or substantial interests and refuses to afford a hearing or otherwise refuses
to recognize that the complainants' grievance is cognizable administratively.” Id. To the contrary,
Plaintiffs own allegations show active administrative regulation in this matter and that hearings
were already underway before Plaintiffs brought this matter to court. (Doc. 16 ¶ 36.)
19
“legal cause,” or “proximate cause”; and (4) actual loss or damage.
Clay Elec. Co-Op., Inc v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003); see also Zinn
v. United States, 835 F. Supp. 2d 1280, 1311 (S.D. Fla. 2011) (same). Plaintiffs fail
to do so because, while they dutifully recite the elements of negligence, they fail to
allege facts from which the Court can reasonably infer that IFF was under a duty
to protect Plaintiffs from alleged odors or that IFF breached that duty.
A. Plaintiffs fail to allege facts supporting an inference that a

reasonable person would foresee the alleged harms.
Duty turns on foreseeability. Zinn, 835 F. Supp. 2d at 1311 (“Duty for pur-
poses of a negligence claim encompasses concepts of foreseeability . . . .”). Plain-
tiffs recite in conclusory terms that IFF owes a “duty” to Plaintiffs (Doc. 16 ¶ 75)
and that the alleged harm was “reasonably foreseeable” (id. ¶ 79), but they allege
no facts that make these conclusory allegations plausible (see id. ¶¶ 75–84). Courts
recognize that the existence of a duty can be supported by “legislative enactments
or administrative regulations,” “judicial interpretations of such enactments,” or
“other judicial precedent,” Zinn, 835 F. Supp. 2d at 1311, but Plaintiffs cite none of
these (see Doc. 16 ¶¶ 75–84). And although, in the absence of the foregoing, a duty
can “aris[e] from the general facts of the case,” Zinn, 835 F. Supp. 2d at 1311, Plain-
tiffs give no facts that would plausibly explain why a reasonable person in IFF’s
shoes would foresee that its operations would produce odors allegedly causing
harms over such great distances (see Doc. 16 ¶¶ 75–84). Plaintiffs simply say that
the harms are foreseeable and leave it at that. (Id.) This is plainly insufficient, par-
ticularly given the substantial distances involved and the vast, 23-square-mile
20
“Class Area” at issue. See, e.g., Brown v. Carnival Corp., 202 F. Supp. 3d 1332,
1338 (S.D. Fla. 2016) (“Simply alleging that [Defendant] owed Plaintiff a duty of
‘reasonable care’ in a conclusory fashion . . . is not sufficient . . . .”). Without more,
Plaintiffs have not met their burden of alleging IFF owed them or any of the puta-
tive class members a duty.
B. Plaintiffs fail to allege any actions or inactions by IFF that

Plaintiffs claim are unreasonable.
To allege a breach, a plaintiff must show that a reasonable person would
have exercised a degree of care that would have prevented the alleged harm. See,
e.g., Gordon v. Target Corp., No. 07-cv-80412, 2008 WL 2557509, at *4 (S.D. Fla.
June 23, 2008). As with duty, Plaintiffs recite the word “breach” (Doc. 16 ¶ 76) but
do not explain what particular action IFF could reasonably have taken (or avoided)
that would have prevented the alleged odors from harming Plaintiffs or the puta-
tive class. (See id. ¶¶ 75–84.) Plaintiffs simply assert in conclusory fashion that “[a]
properly constructed, operated, maintained, and managed Facility” would prevent
the alleged odors without explaining what the hypothetical reasonable facility
would actually do differently than IFF and how that would stop the alleged odors.
(Id.) It is hard to imagine how Plaintiffs’ allegation of breach could be more vague,
as it encompasses the construction, management, operation, maintenance, and
management of the Plant—essentially everything IFF could conceivably do with
respect to the Plant. In a valid negligence claim, a plaintiff clearly delineates the
action a reasonable person would have taken—e.g., stopping at a red light—but
here, IFF is left to wonder what Plaintiffs believe IFF should have done differently.
21
See, e.g., Echevarria v. Taco Bell of Am., LLC, No. 20-cv-22810, 2020 WL
5817237, at *3 (S.D. Fla. Sept. 30, 2020) (explaining that, without “definite facts”
supporting a negligence claim, a defendant “lacks any meaningful notice of the ac-
cusations it faces or the ability to properly defend itself against such accusations”).
Slip-and-fall cases illustrate these principles. The mere fact that someone
falls is not sufficient to establish a breach, nor is a generic allegation that the sur-
face the person slipped on was unsafe. Gordon, 2008 WL 2557509, at *5. Instead,
the plaintiff must allege “the nature of the substance or condition of the floor that
caused her to fall.” Id. Similarly here, Plaintiffs need to allege the nature of the
actions or inactions at the Plant that they believe causes it to emit noxious odors—
i.e., how it is negligent, not merely that it is negligent. See, e.g., Arch Ins. Co. v.
Clements, Purvis & Stewart, P.C., 850 F. Supp. 2d 1371, 1373 (S.D. Ga. 2011) (find-
ing an allegation “conclusory . . . because it fail[ed] to state any facts regarding
what [actions] Defendant did or did not perform, or how Defendant deviated from
the standard of care” (emphasis added)). Without knowing what Plaintiffs believe
IFF should have done or not done, IFF cannot meaningfully assess or challenge
whether the alleged actions or inactions were reasonable. Echevarria, 2020 WL
5817237, at *3. Put simply, because there are no facts in Plaintiffs’ complaint (other
than the alleged odors themselves) that suggest IFF has done anything wrong,
Plaintiffs have offered “precisely the type of unadorned, the-defendant-unlawfully-
harmed-me accusations Rule 8 seeks to avoid.” Harding v. NCL Bahamas Ltd., 90
F. Supp. 3d 1305, 1308 (S.D. Fla. 2015) (internal editing marks omitted); see also,
22
e.g., Conn v. Seawind Enters., Inc., 406 So. 2d 104, 104 (Fla. 3d DCA 1981) (“[T]he
mere occurrence of an accident does not give rise to an inference of negligence
. . . .”); Gordon, 2008 WL 2557509, at *4 (same).
CONCLUSION
Even after multiple attempts, Plaintiffs have failed to state a claim. Plaintiffs’
amalgamated nuisance count is, in reality, a public nuisance claim alleging a public
harm that affects an entire community. Given the lack of proximity, and the size of
the purported class, the private nuisance claim fails. Plaintiffs are also unable to
state viable claims for public nuisance given the lack of special injuries that are
allegedly shared by thousands of individuals. Moreover, the public issues Plaintiffs
raise are already being addressed by the agencies entrusted and equipped to regu-
late them. Finally, Plaintiffs have also failed to, and in any event cannot, state a
negligence claim, because IFF does not have an unbounded duty to protect the
thousands of residents residing in the 23-square-mile proposed class area from
odors, nor has IFF acted unreasonably in its operation of the Plant. Plaintiffs have
not alleged any facts to the contrary. For these reasons, the Court should grant this
motion and dismiss Plaintiffs’ Second Amended Complaint (Doc. 16). 8
8IFF reserves its right to challenge Plaintiffs’ deficient class allegations at an appropriate time
under Rule 23. See Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1279 (11th Cir. 2009).
23
Dated: May 18, 2021 HOLLAND & KNIGHT LLP

/s/ Christina M. Schwing
Christina M. Schwing (FBN 11420)
[email protected]
Daniel Mahfood (FBN 94879)
[email protected]
50 North Laura Street, Suite 3900
Jacksonville, Florida 32202
Telephone: (904) 353-2000
Facsimile: (904) 358-1872
-and-
Jessica S. Kramer (FBN 125420)
[email protected]
100 North Tampa Street, Suite 4100
Tampa, Florida 33602
Telephone: (813) 227-8500
Facsimile: (813) 229-0134
Counsel for Defendant, IFF Chemical
Holdings, Inc.
LOCAL RULE 3.01(g) CERTIFICATION
I certify that I have conferred with counsel for Plaintiffs, who do not agree
to the relief requested. The parties conferred by means of a virtual meeting via
Zoom.

Attorney
CERTIFICATE OF SERVICE
I certify that, on May 18, 2021, I filed this document using the Court’s
CM/ECF system, which will cause a copy to be served on all counsel of record.

Attorney
24

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Case 3:21-cv-00012-BJD-MCR Document 17 Filed 05/18/21 Page 1 of 30 PageID 120

UNITED STATES DISTRICT COURT

JENNY WRIGHT, NATALIE SOUD, and

IFF CHEMICAL HOLDINGS, INC.,

DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’

Table of Contents .......................................................................................................ii

Am. Energy Corp. v. Tex. E. Transmission, LP,

Arch Ins. Co. v. Clements, Purvis & Stewart, P.C.,

Bair v. Cent. & S. Fla. Flood Control Dist.,

Banyan Cafeterias, Inc., No. 3 v. Faith Lutheran Church of Hialeah,

Baptiste v. Bethlehem Landfill Co.

Bower v. Hog Builders, Inc.,

Brown v. Carnival Corp.,

Carroll v. City of W. Palm Beach,

Chapman v. Town of Redington Beach,

City of Ludlow v. Commonwealth,

Clay Elec. Co-Op., Inc v. Johnson,

Coffie v. Fla. Crystals Corp.,

Conn v. Seawind Enters., Inc.,

N. Carolina ex rel. Cooper v. Tenn. Valley Auth.,

Coover v. Neosho Ridge Wind LLC,

Echevarria v. Taco Bell of Am., LLC,

Flo-Sun, Inc. v. Kirk,

Frost v. Berkeley Phosphate Co.,

Gordon v. Target Corp.,

Gunter v. Advanced Corr. Healthcare, Inc.,

Harding v. NCL Bahamas Ltd.,

Jackson v. BellSouth Telecomms.,

King v. Columbian Carbon Co.,

Lombardozzi v. Taminco US Inc.,

Longhini v. J.U.T.A., Inc.,

Millman v. United Techs. Corp.,

Novak v. Cobb Cnty. Kennestone Hosp. Auth.,

Pelican Marine Carriers Inc. v. City of Tampa,

Pinto v. Collier Cnty.,

Rhodes v. E.I. du Pont de Nemours & Co.,

Russell Corp. v. Sullivan,

Sarhan v. Miami Dade Coll.,

Town of Rentz v. Roach,

Yeyille v. Miami Dade Cnty. Pub. Sch.,

Zinn v. United States,

Rest. (2d) of Torts § 821C .................................................................................... 9, 16

Fed. R. Civ. P. 8........................................................................................................22

Fed. R. Civ. P. 12(b)(6) ..............................................................................................4

Attempting to usurp state and local agencies’ enforcement authority, Plain-

basic pleading standards, Plaintiffs ignore the special requirements necessary to

by IFF to Plaintiffs who reside more than 3.7 miles away.

the Plant. Plaintiffs therefore cannot bring a private nuisance claim.

prescribed by the Administrative Procedures Act to run its course, particularly

given the other emitters in the area.

factual allegations to support their negligence claims.

On January 6, 2021, Plaintiffs filed a two-count complaint against IFF and

dismissed Plaintiffs’ complaint sua sponte as “an impermissible shotgun pleading”

an Amended Complaint (Doc. 4) and, on May 4, 2021, filed a Second Amended

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must con-

fendant is liable for the misconduct alleged.” Gunter v. Advanced Corr.

tions contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S.