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C&M Property Management LLC v. Moark, LLC

United States District Court, D. Maine

March 20, 2017

MOARK, LLC d/b/a MOARK MAINE, Defendant.


          George Z. Singal United States District Judge.

         Before the Court is Defendant's Motion for Partial Summary Judgment (ECF No. 42). As explained herein, the Court GRANTS IN PART AND DENIES IN PART the Motion. Specifically, the Court GRANTS the Motion as to the scope of damages, GRANTS IN PART and DENIES IN PART the Motion as to Plaintiff's defamation claim, and DENIES the Motion as to Plaintiff's negligence claim.


         Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).

         The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).

         Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (internal quotation marks and punctuation omitted); see also Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment for the moving party.” In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993).


         In 2006, Plaintiff C&M Property Management, LLC (“C&M”), a Connecticut limited liability company whose sole member and principal is Michael Warbin, began performing pest-control services for commercial egg-laying facilities that were subsequently acquired by Defendant Moark, LLC (“Moark”).[1] Moark is a Missouri limited liability company whose members include Land O'Lakes, Inc. (“Land O'Lakes”), a Minnesota corporation with its principal place of business in that state. At the time C&M began servicing the facilities, John Howard was employed as a production manager for the facility in Bozrah, Connecticut. Howard was aware that Warbin used a .22 caliber rifle at the facility in Bozrah to shoot pests. Howard also did some shooting of pests at that facility.

         At the end of a trial period for C&M's services in 2006, Warbin and his ex-wife, who was involved with C&M's operations at the time, met with Blair “Skip” Hagy to discuss the continuation of C&M's pest control services. Hagy would later become the General Manager of Moark's Eastern Division, which eventually included Connecticut and Maine. As General Manager, Hagy was ultimately responsible for all safety issues at Moark's facilities in the division. Warbin alleges that he told Hagy at the meeting that C&M would like to implement safety protocols regarding the use of firearms, including the notification of Moark employees that C&M was using firearms and the hanging of signs to that effect. Warbin further alleges that Hagy indicated in response that he did not wish to create any official or written safety protocols because he did not want people outside of Moark to know that C&M was using firearms at Moark's facilities. No written safety procedures or policies were ever created for C&M's use of firearms at Moark's facilities.

         In 2011, C&M began servicing Moark's facility in Turner, Maine (hereinafter, “the facility”). Gwen (then Ken) Gruver was Plant Manager at the facility. Moark maintained a no-firearms policy at the facility but allowed Warbin to use a .22 caliber rifle to shoot pests as an exception to that policy.[2] According to Moark's production manager in Maine, it was common knowledge at Moark that Warbin would routinely use a gun to shoot rats and other pests as part of C&M's services. From at least May 2012 through the date of the fatal shooting at the center of this case, Moark received several invoices from C&M that included charges for ammunition.

         When shooting rodents, Warbin would use pellet shot. Pellet shot is not usually lethal to humans. (See 10/05/16 Warbin Dep., Ex. A to Def.'s Statement of Material Facts (ECF No. 43-2), Page ID # 298.) When shooting stray chickens, however, he would use .22 caliber bullets. Warbin may have only shot chickens during the day when employees were present at the facility on one other occasion prior to the fatal shooting. (See 10/05/16 Warbin Dep., Ex. A1 to Def.'s Statement of Material Facts (ECF No. 43-3), Page ID # 310; 10/05/16 Warbin Dep., Ex. A2 to Def.'s Statement of Material Facts (ECF No. 43-4), Page ID # 332.) Warbin would notify a Moark employee and/or a manager before doing any shooting.[3]

         On August 19, 2013, Warbin went to the facility for the purpose of spraying weeds around the egg-laying barns with herbicide as part of C&M's services. While he was spraying weeds, Warbin encountered Kempton MacDougall, a Moark employee involved with pest control. MacDougall informed Warbin that he was on his way to an egg-laying barn, Barn 51, to remove stray chickens left behind in the barn after the barn was emptied.[4] Warbin offered to assist MacDougall by shooting any stray chickens. It was mid-afternoon and more than two hundred employees were working at the facility at that time, but MacDougall informed Warbin that Barn 51 was shut down for the day. Other than MacDougall, no Moark employee was aware that Warbin would be using his rifle in Barn 51. After retrieving his rifle from his truck and loading it with .22 caliber bullets, Warbin walked with MacDougall through the barn to make sure that nobody was inside and then began shooting.[5] Unbeknownst to Warbin, Moark management had separately instructed an employee, Manuel Adame, to gather stray chickens in Barn 51 and euthanize them by wringing their necks.

         Sometime after Warbin shot the chickens, Maine State Police were called to the facility due to the discovery of a bleeding and unresponsive man, who turned out to be Adame.[6] Officer Eric Paquette questioned several employees about what could have happened and asked Hagy and Gruver about the possibility of a shooting in Barn 51.[7] Hagy responded that Moark maintained a no-firearms policy (of which Officer Paquette had long been aware), but that Warbin could have been shooting rats with a pellet gun. Specifically, the summary of the police interview with Hagy records the following:[8]

Mike Warbin kills rodents and chickens on the farm. Hagy didn't know if Warbin was scheduled to kill any chickens or rodents today. It surprises Hagy that Warbin was using live ammunition. Hagy thought Warbin used a pellet gun but didn't know.

(Ex. M to Def.'s Statement of Material Facts (ECF No. 43-18), Page ID # 626.) The summary of the subsequent police interview with Gruver records the following:

Warbin usually kills the mice with chemicals. Warbin has a method of looking for the mice. If there are less than 10 mice in the coop at one time, they can reopen the empty coop. Gruver did not know Warbin was there today to exterminate mice. Gruver thought Warbin used a pellet gun. He didn't know Warbin used a gun with live ammo.

(Ex. N to Def.'s Statement of Material Facts (ECF No. 43-19), Page ID # 628.)

         Gruver then called Warbin on his cell phone to ask him if he had been shooting a rifle in Barn 51, and Warbin informed Gruver that he had been shooting stray chickens with a rifle. In addition to interviewing Hagy, Gruver, and Warbin, [9] the police interviewed Production Manager Allen Fletcher, who stated that Warbin would shoot pests in the barns, but that as a rule he would let Moark managers know that he was going to be shooting.[10]

         At some point after the shooting, Land O'Lakes circulated an internal company statement entitled “Update on Moark Employee Death.” The statement included the following paragraph:

Employee safety is our number one value; we are saddened by this loss and are committed to better understanding what happened. Tragic events like this remind us how important it is for each of us to be extremely focused on personal safety ...

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