IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ASHTON BELL & DELILAH BELL
216 13th Street
West Point, VA 23181

)
)
)
)
and
)
)
LUCY R. EDWARDS
)
222 12th Street
)
West Point, VA 23181
)
)
Plaintiffs,
)
)
v.
)
)
WESTROCK CP, LLC,
)
504 Thrasher Street
)
Norcross, GA 30071
)
)
SERVE REGISTERED AGENT
)
Corporation Service Company
)
Bank of America Ctr. 16th Floor
)
1111 East Main Street
)
Richmond, VA 23219
)
)
WEST POINT CHIPS, INC.
)
218 Midway Route
)
Monticello, AR 71655
)
)
SERVE REGISTERED AGENT
)
CT Corporation System
)
4701 Cox Road, Suite 285
)
Glen Allen, VA 23060
)
)
)
Defendants.
)
____________________________________)

Case No.: __________
3:17cv829
CLASS ACTION
JURY TRIAL DEMANDED

 CLASS ACTION COMPLAINT

COMES NOW, the Plaintiffs Ashton Bell, Delilah Bell and Lucy R. Edwards (hereinafter
“Plaintiffs”), and hereby set forth their claims against Defendants, WestRock CP, LLC
(“WestRock”) and West Point Chips (“WPC”) (WestRock and WPC are collectively referred
hereinafter as “Defendants”), stating as follows:
NATURE OF THE CASE

1.

WestRock operates a paper mill (the “West Point mill”) in West Point, Virginia, at

which it maintains massive piles of wood chips. On property adjacent to the West Point mill, WPC
operates a wood chipper that processes logs into wood chips for WestRock. The wood chips are
used to manufacture containerboard.
2.

From time to time, a great amount of dust is blown from the wood and wood chip

piles into the air and then onto other properties in West Point, creating a nuisance and trespassing
onto property owned and occupied by the Plaintiffs’ and members of the Class. The fugitive dust
is intermittent and unpredictable in where and when it is blown, and it depends upon various
factors, such as weather conditions, the height and configuration of the wood and wood chip piles,
the way the piles are maintained, and the manner in which the logs are processed.
3.

The fugitive wood dust migrates from wood chip piles located at the West Point

mill and the wood piles located at WPC and settles on the Plaintiffs’ and Class members’ properties
and collects in and on their vehicles, and in and on their homes.
4.

Accordingly, Plaintiffs, individually and on behalf of a Class of all persons

similarly situated, bring claims for nuisance and trespass caused by the fugitive wood dust and
seek money damages for, but not limited to, loss of use and enjoyment of their properties.

2

 Plaintiffs, individually and on behalf of a Class of all persons similarly situated, also seek
an injunction prohibiting any future migration of dust from the wood piles or the wood chip piles
onto their properties.

PARTIES
5.

Plaintiffs Ashton Bell and Delilah Bell (“the Bells”) are residents of West Point,

Virginia. Their home is located at 216 13th Street, West Point, VA 23181. The Bells began
residing in the home in 1979 and purchased it in 1992.
6.

Plaintiff Lucy R. Edwards is a resident of West Point, Virginia. Her home is

located at 222 12th Street, West Point, VA 23181. She purchased her home in 2007.
7.

Defendant WestRock is a Delaware corporation, with its principal place of

business at 504 Thrasher Street, Norcross, GA 30071. WestRock operates the paper mill located
at 19th and Main Street, West Point, Virginia 23181, and owns the property located at 200 14th
Street in West Point on which the wood and wood chip piles are maintained.
8.

Defendant West Point Chip is an Arkansas corporation, with its principal place

of business at 218 Midway Route, Monticello, AR 71655. WPC operates the wood chipper and
maintains the wood piles on property owned by WestRock.

JURISIDICTION AND VENUE
9.

This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. § 1332(d)(2) (diversity jurisdiction) and the Class Action Fairness Act, in that (i) there is
complete diversity (Plaintiffs are citizens of Virginia and Defendants are domiciled and
incorporated in another state), (ii) the amount in controversy exceeds $5,000,000.00 (Five Million
Dollars) exclusive of interests and costs, and (iii) there are 100 or more members of the proposed
Plaintiffs’ class.
10.

Venue is proper in this District under 28 U.S.C. § 1391 because Plaintiffs reside

in this Judicial District and a substantial part of the events or omissions giving rise to Plaintiffs’

3

 claim occurred in this Judicial District. In addition, WestRock and WPC do business and/or
transact business in this Judicial District, and therefore, are subject to personal jurisdiction in this
Judicial District and reside here for venue purposes.

FACTS COMMON TO ALL COUNTS
11.

WestRock owns and operates a paper mill in West Point, King William County,

Virginia.
12.

In connection with its operation of the mill, WestRock stores and maintains on its

property massive piles of wood chips.
13.

The wood chips are manufactured by a chipping company, West Point Chip, which

processes hundreds of logs a day for this purpose. West Point Chip operates it chipper on property
adjacent to the paper mill, also in West Point, King William County, Virginia.
14.

The wood chip and wood piles are located within 100 feet of residential property

owned by Plaintiffs Ashton and Delilah Bell and Lucy Edwards:

4

 15.

The wood chip piles and wood piles are located within one mile of all the

properties owned by members of the Class.
16.

From time-to-time large amounts of dust are blown from the wood and wood chip

piles and onto Plaintiffs’ properties and properties owned by members of the Class.
17.

For instance, fugitive dust originating from the wood piles and wood chip piles

settles and accumulates on and within the Bells’ garage, porch, and home.
18.

It is useless for the Bells to clean the dust off their porch or out of their garage

because it simply returns.
19.

Plaintiffs and members of the Class cannot leave the windows in their homes up

because the dust gets into their homes. The dust enters Plaintiffs’ and the Class members’ homes
even when the windows are closed.
20.

From time to time, Ms. Edwards has noticed clouds of dust coming from the West

Point Mill.
21.

Plaintiffs and members of the Class cannot leave the windows on their vehicles

rolled down because the dust gets into the vehicles. Dust enters Plaintiffs and Class members’
vehicles even when the windows are closed.
22.

Plaintiffs and members of the Class from time to time experience dust deposits on

their window sills, porches and in their vehicles.
23.

The dust gets on clothing, requiring laundering and dry-cleaning.

24.

Plaintiffs and members of the Class have from time to time complained to

WestRock about the fugitive dust, but they continue to suffer from dust blowing from Defendants
onto their properties.
25.

WestRock and WPC’s actions have been committed knowingly so as to

demonstrate a willful and wanton disregard for the rights of the Plaintiffs and the members of the
Class in the use and enjoyment of their homes and property.
26.

All conditions precedent to bring this action have occurred or been waived.

5

 CLASS ACTION ALLEGATIONS
27.

Plaintiffs bring this class action pursuant to Fed. R. Civ. P. 23. The requirements

of Fed. R. Civ. P. 23(a), (b)(2), (b)(3) and (c)(4) are met with respect to a class defined as: All
persons who own or reside on property in West Point located one mile or less from 200 14th Street
in West Point, Virginia.
28.

The following map shows the location of the properties within the Class:

29.

Excluded from the Class are: (a) any Judge or Magistrate presiding over this action

and members of their families; (b) WestRock, WPC, their affiliates, officers and directors, (c) all
persons who properly execute and file a timely request for exclusion from the Classes; and (d)
the attorneys of record in this case.
30.

Numerosity: The Class is composed of the owners and inhabitants of

approximately 300 residential properties located in West Point, the joinder of whom in one action
is impractical.
31.

Commonality: Questions of law and fact common to the Class exist as to all

members of the Class and predominate over any questions affecting only individual members of

6

 the Class. These common legal and factual issues include, but are not limited to the following:
a.

Whether the Defendants may be held liable to the Plaintiffs and members of the
Class for nuisance;

b.

Whether the Defendants may be held liable to the Plaintiffs and members of the
Class for trespass;

c.

Whether Plaintiffs and the other Class members are entitled to injunctive relief,
and, if so, the nature of such relief;

d.

Whether Plaintiffs and the other Class members are entitled to compensatory
damages, and, if so, the proper measure of damages.

32.

Typicality: Plaintiffs’ claims are typical of the claims of the other Class members.

Plaintiff and each of the other Class members’ properties have been exposed to fugitive wood
dust. Plaintiffs’ claims arise from the same practices and course of conduct that give rise to the
other Class members’ claims and are based on the same legal theories.
33.

Adequate Representation: Plaintiffs will fully and adequately assert and protect

the interests of the other Class members. In addition, Plaintiffs have retained class counsel who
are experienced and qualified in prosecuting class action cases similar to this one. Neither
Plaintiffs nor their attorneys have any interest contrary to or conflicting with other Class
members’ interests.
34.

Predominance and Superiority: This class action is appropriate for certification

because questions of law and fact common to the members of the Class predominate over
questions affecting only individual members, and a Class action is superior to other available
methods for the fair and efficient adjudication of this controversy, since individual joinder of all
members of the Class is impracticable. Should individual Class members be required to bring
separate actions, this Court would be confronted with a multiplicity of lawsuits burdening the
court system while also creating the risk of inconsistent rulings and contradictory judgments. In
contrast to proceeding on a case-by-case basis, in which inconsistent results will magnify the
delay and expense to all parties and the court system, this class action presents far fewer

7

 management difficulties while providing unitary adjudication, economies of scale and
comprehensive supervision by the Court.
FIRST CLAIM FOR RELIEF
(NUISANCE)
35.

Plaintiffs hereby incorporate each and every allegation as though fully set forth

36.

WestRock’s and WPC’s intermittent emission of fugitive dust, as described above,

herein.

interferes with and has in the past interfered with the Plaintiffs’ and Class members’ reasonable
and comfortable use of their homes and property and therefore is a nuisance.
37.

WestRock’and WPC’s intermittent emission of fugitive dust, as described above,

endangers and has in the past endangered the health of the Plaintiffs and Class members’ and
therefore is a nuisance.
38.

The nuisance is temporary because the emission of the fugitive dust is intermittent

and can remediated by, among other things, reducing the size of the wood chip piles, removing
the wood chip piles, enclosing the conveyer belts, using “misters,” reactive agents, and training
facility personal.
SECOND CLAIM FOR RELIEF
(TRESPASS)
39.

Plaintiffs hereby incorporate each and every allegation as though fully set forth

40.

The fugitive dust discharged from the wood and wood chip piles enters onto and

herein.

into Plaintiffs’ properties and homes without right, authority or invitation.
41.

The fugitive dust discharged from the wood and chip piles interferes with and has

in the past interfered with Plaintiffs’ and Class members’ rights of possession of their properties
and homes.
42.

The entry of WestRock’s and WPC’s fugitive dust onto Plaintiffs’ and Class

8

 members’ properties and homes, whether it is blown through the properties in the air or lands on
the properties, constitutes a trespass.
THIRD CLAIM FOR RELIEF
(INJUNCTIVE RELIEF)
43.

Plaintiffs hereby incorporate each and every allegation as though fully set forth

44.

The entry of the fugitive dust onto Plaintiffs’ and Class members’ properties and

herein.

into their homes irreparably injures them.
45.

Although monetary damages are the only remedy available for past nuisances and

trespasses from the fugitive dust, such remedies at law are inadequate to compensate for future
such nuisances and trespasses.

Although the fugitive dust has been intermittent and

unpredictable, the problem has recurred and is likely to recur in the future, absent remediation.
There is no way to estimate when, how often or how serious those future nuisances and trespasses
will be for purposes of calculating damages and therefore Plaintiffs have no adequate remedy at
law for future emissions of fugitive dust by the Defendants.
46.

The balance of hardships between the Plaintiffs and the Defendants warrant an

equitable remedy, i.e. an injunction against the Defendants prohibiting them from allowing the
release of the fugitive dust. The Defendants have the means to prevent, minimize and eliminate
the fugitive dust and therefore an injunction against future releases of the dust would create little
or no hardship for them. On the other hand, the Plaintiffs and Class members are injured by the
fugitive dust through no fault of their own and suffer great hardship as a result of the Defendants’
release of the dust.
47.

The public interest would not be disserved by a permanent injunction. To the

contrary, an injunction would protect the public from the fugitive dust.

9

 PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and all other similarly situated, pray
for a judgment against Defendants as follows:
a.

For an order certifying the Class, pursuant to Fed. R. Civ. P. Rule 23, appointing
Plaintiffs as representative of the Class, and appointing the law firms representing
Plaintiffs as Class Counsel;

b.

For compensatory damages sustained by Plaintiffs and the Class in an amount no
less than $25,000 per property;

c.

For equitable and/or injunctive relief for the Plaintiffs and the Class;

d.

For payment of costs of suit herein incurred;

e.

For both pre-judgment and post-judgment interest on any amounts awarded;

f.

For punitive damages;

g.

For payment of reasonable attorneys’ fees and expert fees as may be allowable
under applicable law; and

h.

For such other and further relief as the Court may deem just and proper.
JURY DEMAND

Plaintiffs on behalf of themselves and on behalf of the Class Members, hereby demand a
trial by jury as to all issues so triable.
Dated: December 15, 2017

Respectfully submitted,

____________________________________
David Hilton Wise, VA Bar No. 30828
Joseph B. Hernandez, VA Bar No. 90236
WISE & DONAHUE, PLC
10476 Armstrong Street
Fairfax, Virginia 22030
Tel: (703) 934-6377
Fax: (703) 934-6379
dwise@wisedonahue.com
jhernandez@wisedonahue.com
Counsel for the Plaintiffs

10

 Gary E. Mason (to be admitted pro hac vice)
Danielle Perry (to be admitted pro hac vice)
WHITFIELD BRYSON & MASON LLP
5101 Wisconsin Avenue, NW
Suite 305
Washington, DC 20016
Telephone:
202-429-2290
Facsimile:
202-429-2294
gmason@wbmllp.com
dperry@wbmllp.com
Counsel for the Plaintiffs
Patrick W. Pendley (to be admitted pro hac vice)
PENDLEY BAUDIN & COFFIN LLP
24110 Eden Street
Plaquemine, LA 70765
Telephone:
225-937-4530
Facsimile:
225-687-6398
pwpendley@pbclawfirm.com
Counsel for the Plaintiffs

11

 CIVIL COVER SHEET

JS 44 (Rev. 06/ 17)

The J S 44 civil cover shee t and the ~fonnat ion contained herein .neither replace nor supplement the fil.ing and service of p!eadings or other pa pers as required by Jaw, except as
provided by local rules of court. This fonn, approved by the Judicial Conference of the Umted States tn September 1974, 1s required for the use of the Cleric of Court for the
purpose of initiating the civil docket sheet . (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

West Point Chips, Inc.

(b)

County ofResidence of First Listed Plaintiff
King William
(EXCEPT IN U.S. PLAINTIFF CASES)

County, VA

County of Residence ofFirst Listed Defendant
Gwinnett
(JN U.S. PLAINTIFF CASES ONLY)
NOTE:

(c)

County, GA

IN LAND CONDEM NATION CASES, USE THE LOCATION OF
THE TRACT O F LAND INVOLVED.

Attorneys (If Known)

Attorneys (Firm Name, Address, and Telephone NumMr)

Please see attachment

U. BASIS OF JURISDICTION (Place an "X"mOneBoxOnlyJ
01

U.S. Government
PlainliO'

0 3

Federal Question
(U.S. Govemment Not a Party}

0 2

U.S. Government
Defendant

~4

Diversity
(Indicate Ciri:e11ship of Parties in Item JI/)

III. CITIZENSHIP OF PRINCIPAL PARTIES (!'lace an "X" in One Box/or Plaintiff
(For Diversily Cases Only)
PTF
Citizen of This State
J)( I

Citizen of Another State

0

2

Incorporated and Principal Place
of Business In Another State

0 5

i:!J: 5

0 3

0

3

Foreign Nation

0 6

0 6

erICkh ere tior: Nature o rs Ult· code D escnntions.

0
0
0
0
0
0
0
0
0
0
0
0

FORFEITURE/PENALTY

TORTS

CONTRACT
11 0 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
15 1 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

0
0
0

0
0
0
0
0
0
0

I

REAL PROPERTY
0 2 10 Land Condemnation
0 220 Foreclosure
0 230 Renl Lease & Ejectment
Cl!: 240 Torts to Land
0 245 Tort Product Liability
0 290 All Other Real Property

0
0
0
0

0
0
0

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assauh, Libel &
Slander
330 Federal Employers'
Liability
340Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Persona1lnjwy Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Acconunodations
445 Amer. w'Disabililies Employment
446 Amer. w/Disabilities Other
448 Education

nnd One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
CJ 4
CJ 4
of Business In This Stale

0 2

IV NATURE OF SUIT (Place an "X" in One Box On y)
I

DEF
0
I

PERSONAL I NJURY
0 365 Personal Injury Product Liability
0 367 Health Care.'
Pharmaceutical
Personal Injury
Product Liability
0 368 Asbestos Personal
lnjwy Product
Liability
PERSONAL PROPERTY
0 370 Other Fraud
0 371 Truth in Lending
0 380 Other Personal
Property Damage
0 385 Property Damage
ProduC1 Liability

0 625 Drug Related Seizure

PRISONER PETITIONS
Habeas Corpus:
0 463 A lien Detainee
0 510Motions10 Vacate
Sentence
0 530 General
0 535 Death Penalty
Orber:
O 540 Mandamus & Other
0 550 Civil Rights
0 555 Prison Condition
0 560 Civil Detainee Conditions of
Confinement

0 790 Other Labor Litigation
0 791 Employee Retirement

of Property 2 I USC 881

28 use 1n

0 690 Other

0

PR•w•·w..-y RIGHTS
820 Copyrights
830 Patent
835 Patent - Abbreviated
New Drug Application
840 Trademark

0
0
0
0
0

86 1 HIA (1395fl)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))

0
0
0
l _A.Hrlll

~'"

0 710 Fair Labor Standards
Act

0 720 Labor/Management
Relations

0 740 Ra ilway Labor Act
0 751 Family and Medical

A

s.~.

'

IK

Leave Act

Income Security Act

OTHER ST ATUTES

BANKRUPTCY

0 422 Appeal 28 USC 158
0 423 Withdrawal

0 375 False Claims Act
0 376 Qui Tam (3 1 USC
0
0
0
0
0
0
0
0
0
0
0
0
0

FEDERAL TAX SUITS

0 870 Taxes (U.S. Plaintiff
or Defendant)
0 871 IRS- Third Party
26 USC 7609

0
0
0

IMMIGRATION
0 462 Naturalization Application
0 465 Other Immigration
Actions

3729(a))
400 State Reapportioarnenl
4 10An1i1rus1
430 Banks and Banking
450 Conunerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sal TV
850 Sceurities/Conunodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Envirorunental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes

V. . ORIGIN (Place an "X" in One Box Only)
~

I

Original
Proceeding

0 2 Removed from
State Court

0 3

Remanded from
Appellate Court

0 4 Reinstated or

0 5

Reopened

Transferred from
Another D istrict
(specify)

0 6

Mult idistrict
Litigation •
Transfer

0 8 M ultidistrict
Li tigation •
Direct File

Cite the U.S. Civil Statute under which you a re filing (Do 1ro1 cite jurisdictional statutes unless dfrerslty) :

VI CAUSE OF ACTION 28 U.S.C. 1332 d 2 Diversit Jurisdiction
•

Bnef d escnphon of cause:

Class-action seekin mone dama es for tres ass and nuisance to real ro ert ; in'unctive relief
l)l
VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IFANY

C HECK

IF THIS JS A CLASS ACTION

UNDER RULE 23, F.R.Cv.P.

DEMAND

S

CHECK YES only if de manded in compla in t:

7,500,000.00

J URY DEMAND :

DOCKET NUMBER

DATE

12/15/2017
FOR OFFICE USE ONLY
RECEIPT II

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

~ Yes

ONo

I

 ATTRORNEYS FOR PLAINTIFFS
David Hilton Wise, VA Bar No. 30828
Joseph B. Hernandez, VA Bar No. 90236
WISE & DONAHUE, PLC
10476 Annstrong Street
Fairfax, Virginia 22030
Tel:
(703) 934-6377
Fax: (703) 934-6379
dwise@wisedonahue.com
jhem andez@wisedonahue.com
Gary E. Mason (to be admitted pro hac vice)
Danielle Perry (to be admitted pro hac vice)
WHITFIELD BRYSON & MASON LLP
5101 Wisconsin Avenue, NW
Suite 305
Washington, DC 20016
Telephone:
202-429-2290
Facsimile:
202-429-2294
gmason@wbmllp.com
dperry@wbmllp.com
Patrick W. Pendley (to be admitted pro hac vice)
PENDLEY BAUDIN & COFFIN LLP
24110 Eden Street
Plaquemine, LA 70765
Telephone:
225-937-4530
Facsimile:
225-687-6398
pwpendley@pbclawfirm.com