               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0612n.06

                                     Nos. 09-6367/10-5362

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
1704 FARMINGTON, LLC,                                 )                         Aug 24, 2011
1711 FARMINGTON LLC, and                              )                   LEONARD GREEN, Clerk
1685 FARMINGTON LLC,                                  )
                                                      )
       Plaintiffs-Appellants,                         )   ON APPEAL FROM THE
                                                      )   UNITED STATES DISTRICT
v.                                                    )   COURT FOR THE WESTERN
                                                      )   DISTRICT OF TENNESSEE
CITY OF MEMPHIS, TENNESSEE,                           )
                                                      )
       Defendant-Appellee.                            )


BEFORE: COLE and WHITE, Circuit Judges; O’MEARA, District Judge.*


       JOHN CORBETT O’MEARA, District Judge. Plaintiffs/Appellants, 1704 Farmington

LLC, 1711 Farmington LLC, and 1685 Farmington LLC (“Property Owners”) own the Ridgeway

Commons apartment complex in Memphis, Tennessee. Property Owners filed this suit against the

City of Memphis, seeking abatement of a common law nuisance. Essentially, Property Owners

contend that the City has not properly maintained a drainage ditch adjacent to Ridgeway Commons,

which has flooded three times in the past ten years. The district court ruled that Property Owners

failed to establish the elements of a prima facie case of nuisance and granted summary judgment in

favor of the City. Property Owners then filed this appeal as well as a separate, subsequent appeal




       *
       The Honorable John Corbett O’Meara, United States District Court for the Eastern District
of Michigan, sitting by designation.
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of the district court’s award of costs in favor of the City. For the reasons stated below, we AFFIRM.

                                                 I.

       The drainage ditch at issue is a concrete-lined channel adjacent to the Ridgeway Commons

apartment complex and intersecting Quince Road in Memphis. The ditch was constructed in

sections at different times. The majority of the ditch was designed and constructed in the late 1960s

and early 1970s by J & L Development Company, which also developed the Ridgeway Commons

apartment complex. The box culvert under Quince Road was originally installed by Shelby County,

but that area was subsequently annexed by the City. The City accepted an easement over the

drainage ditch in 1972, including the responsibility to maintain it.

       At the time the drainage ditch was constructed, the City’s design criteria for the construction

of a concrete channel included a two cubic feet per second per acre requirement for watershed, which

means a flow rate for water drainage equal to at least two cubic feet per second. In April 1987, the

City adopted a Drainage Manual that requires concrete drainage ditches to accommodate a “25-year

flood event.” The City did not require drainage systems built prior to 1987 to be updated to increase

their capacity because it was not economically feasible to do so.

       The City does maintain the drainage ditch by keeping the channel intact, keeping obstructions

out of the channel, keeping the safety fence intact, and repairing damage to the channel. Property

Owners do not allege a problem with flooding at the Ridgeway Commons from the time it was

constructed until 1999. After that, the area experienced flooding in 1999, March 2004 and July




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2005. About a week prior to the July 2005 flood, the City cleaned out the drainage ditch at the

request of Property Owners.

        The City contends that it does not guarantee that the property adjacent to a drainage ditch will

never experience flooding. Some storms are so severe that they cause flooding even when an

adequately designed and constructed drainage system is in place.

        The portion of the Property Owners’ property directly adjacent to the drainage ditch is lower

than the elevation of the top wall of the ditch. A developer typically fills the land being developed

to the top of such a wall and then develops up from that point to avoid flooding. This was not done

at Ridgeway Commons, where the developer apparently developed the property below the elevation

of the top of the channel wall. In addition, some water intake inlets on the property are lower than

the top of the channel walls, and one has been paved over. The City contends that the lowness of

Plaintiff’s property and the inlets on that property, relative to the height of the drainage ditch, cause

the drainage system to not function properly during heavy rains. As the water in the channel rises,

water backs up through the low inlets in the property, so the water that is running downhill toward

the ditch has nowhere to go, and the low areas on the property act like a detention system. The City

contends that Plaintiffs could have re-graded their property or constructed a drainage system to

prevent flooding, but chose not to do so.

        Property Owners contend that the elevation of their property and the fact that an inlet is

covered are not the causes of the flooding. Rather, Plaintiffs’ expert, Guy Forney, has opined that

the property floods “as a result of the drainage ditch’s inability to operate as it was intended, i.e.,


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carry upstream water runoff and runoff from Plaintiffs’ property downstream under Quince Road.”

R.E. 64 (Order Granting Defendant’s Motion for Summary Judgment) at 12. In other words,

Property Owners contend that the drainage ditch lacks sufficient capacity, as a result of increased

development of properties upstream from Ridgeway Commons. See R.E. 36-2 (Affidavit of Guy

Forney) at ¶ 20 (“[U]pstream development has caused the level of flood protection at the apartment

complex to drop from a 100-year frequency to a 10-year frequency.”).

                                                  II.

A.      Standard of Review

        Property Owners argue that the district court should have applied the summary judgment

standard articulated by the Tennessee Supreme Court in Hannan v. Alltel Publishing Co., 270

S.W.3d 1 (Tenn. 2008), and that the failure to do so deprived them of their constitutional right to the

benefits of state law. Property Owners’ argument is without merit. The standard for summary

judgment is a procedural issue that is governed by federal law in diversity cases. Shropshire v.

Laidlaw Transit, Inc., 550 F.3d 570, 573-74 (6th Cir. 2008). Notwithstanding Property Owners’

arguments to the contrary, Shady Grove Orthopedic Assoc. v. Allstate Ins. Co., 130 S.Ct. 1431

(2010) does not change this rule.

        This court reviews a grant of summary judgment de novo. See, e.g., Briggs v. Potter, 463

F.3d 507, 511 (6th Cir. 2006). Summary judgment is appropriate if “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). When reviewing a motion for summary judgment, the facts and any reasonable inferences


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drawn from the facts must be viewed in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The party

opposing summary judgment, however, must present more than a “mere scintilla” of evidence; the

evidence must be such that a reasonable jury could find in favor of the plaintiff. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986).1

        The court reviews evidentiary issues, such as the district court’s refusal to consider an

affidavit, for an abuse of discretion. Briggs, 463 F.3d at 511. “A district court abuses its discretion

when it relies on erroneous findings of fact, applies the wrong legal standard, misapplies the correct

legal standard when reaching a conclusion, or makes a clear error of judgment.” Id. (citation

omitted).

B.      Evidentiary Issues

        Property Owners complain that the district court excluded certain of Plaintiffs’ evidence in

considering the City’s motion for summary judgment: (1) Plaintiffs’ Statement of Undisputed Facts;

(2) Guy Forney’s testimony; and (3) Frank Palumbo’s testimony. For the reasons stated below, this

court finds that the district court did not abuse its discretion.




        1
        Relying on Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 151 (2000), Property
Owners argue that the court must disregard testimony submitted by a movant from an interested
witness, even if that testimony is not impeached or contradicted. Although evidence presented by
the movant that is impeached or contradicted must be disregarded for the purposes of summary
judgment, the standard does not require the court to disregard testimony merely because it is
provided by an interested witness. See, e.g., Stratienko v. Cordis Corp., 429 F.3d 592, 597-98 (6th
Cir. 2005); Fogerty v. MGM Group Holdings Corp., 379 F.3d 348, 353-54 (6th Cir. 2004).

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       1.      Exclusion of Plaintiffs’ Statement of Undisputed Facts

       The district court did not rely upon Plaintiffs’ Statement of Undisputed Facts because it was

filed contrary to the local rules. Local Rule 7.2(d) provides that a non-moving party may respond

to the movant’s statement of undisputed facts “by attaching to the response, the precise portions of

the record relied upon to evidence the opponent’s contention that the proponent’s designated material

facts are at issue.” The district court noted that “a non-movant is not afforded the opportunity of

filing its own additional facts unless, of course, the non-movant wishes to file its own motion for

summary judgment. Therefore, on a motion for summary judgment, the Court looks only to the

movant’s statement of facts and the non-movant’s response to those facts per the procedure

established by Local Rule 7.2(d)(3).” R.E. 64 at 1 n.1.

       Property Owners argue that the district court elevated form over substance by excluding their

statement of facts. Property Owners have not, however, identified facts that were excluded by the

district court which would command a different disposition of the case. Further, Property Owners

did file a response to the City’s statement of undisputed facts, which was considered by the district

court. Property Owners have not articulated how they have been prejudiced by the exclusion of their

improperly filed statement of facts.

       2.      Testimony of Guy Forney

       Property Owners contend that the district court disregarded the expert testimony of Guy

Forney. However, the district court did not exclude Forney’s testimony and, in fact, referenced it

several times in its opinion. See R.E. 64 at 4, 5, 7, 12. Property Owners contend that the district


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court “deemed the testimony of Forney to be without credence, even though the district court

acknowledged Forney’s testimony was in contradiction to undisinterested [sic] testimony of City.”

Appellants’ Br. at 59. Property Owners have not explained how the district court “deemed” the

testimony to be “without credence,” let alone how this resulted in error. For example, Property

Owners do not explain which parts of Forney’s testimony, if properly considered by the district court,

would mandate a different outcome in this case.

       3.      Exclusion of Testimony of Frank Palumbo

       The district court excluded the expert testimony of Frank Palumbo because Plaintiffs did not

timely disclose his testimony. Property Owners complain that the district court also improperly

excluded “fact” evidence presented by Palumbo. Property Owners explain that Palumbo designed

the drainage ditch and later became the City’s Engineer and Director of Public Works. They contend

that the district court should have considered Palumbo’s testimony “concerning what was

encompassed in the obligation of City to ‘maintain’ the drainage ditch that Palumbo designed.”

Appellants’ Br. at 60.

       The City responds that Palumbo’s testimony is based upon technical or specialized

knowledge gained through his experience, training and/or education, and is therefore not “fact”

testimony, but opinion testimony under Fed. R. Evid. 702. The court agrees that Palumbo’s

testimony falls within the scope of Fed. R. Evid. 702. Further, the admission of Palumbo’s

testimony would not change the result in this case, as discussed below.




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C.     Nuisance Claim

       In its summary judgment motion, the City argued that it was entitled to judgment as a matter

of law because it is immune from suit under the Governmental Tort Liabilities Act (“GTLA”). See

Tenn. Code Ann. § 29-20-201. The City also argued that it did not create a nuisance as a matter of

law. The district court agreed that Property Owners could not establish a nuisance claim as a matter

of law and did not reach the City’s GTLA argument.

       It is undisputed that Tennessee law applies in this diversity action. Under Tennessee law,

“a nuisance extends to everything that endangers life or health, gives offense to the senses, violates

the laws of decency, or obstructs the reasonable and comfortable use of property.” Paduch v. City

of Johnson City, 896 S.W.2d. 767, 770 (Tenn. 1995) (quoting Pate v. City of Martin, 614 S.W.2d

46, 47 (Tenn. 1981)). “The cases in Tennessee considering municipal liability for nuisance establish

the following requirements: an inherently dangerous condition and affirmative action on the part of

the municipality. Both elements must be established before a nuisance can be found and the

distinction must be preserved between negligence, and omission of duty, and a nuisance, or active

wrong.” Id. at 771 (quoting Dean v. Bays Mountain Park Ass’n, 551 S.W.2d 702, 704 (Tenn. Ct.

App. 1977)) (internal quotation marks and citations omitted).

       The district court concluded that the Property Owners failed to demonstrate that the City took

some affirmative act to create or maintain a nuisance. The court noted that the City did not plan,

design, or construct the ditch, which was constructed by a private developer who later dedicated an

easement to the City for maintenance. There is also no evidence that the ditch itself is “defective”


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or that the City failed to maintain it or keep it functioning. Indeed, there is no evidence that the ditch

“malfunctioned” from the time of its construction in the late 1960s until 1999. The court found that

the “real issue in this case is not whether the City has created or maintained a ‘malfunctioning’

channel but whether the City should be liable for the increase in storm water that periodically fills

the channel and causes flooding on Plaintiffs’ property.” R.E. 64 at 17. The City has not contributed

to the increase in storm water; rather, Plaintiffs admit that upstream development has caused

increased runoff. In essence, Property Owners “allege that the City has failed to improve the ditch

to keep pace with new development so that the ditch can carry greater volumes of storm water

without flooding Plaintiffs’ property. . . . Plaintiffs in essence ask the Court to order the City to

[redesign] the channel so that it can handle greater capacity.” Id. at 19. The court found no authority

for ordering such relief.

        Property Owners contend that the district court erred by not following two unpublished Court

of Appeals of Tennessee decisions, Rucker v. Metropolitan Govt. of Nashville, 1990 WL 182275

(Tenn. Ct. App. Nov. 28, 1990) and Morris v. City of Memphis, 1995 WL 72539 (Tenn. Ct. App.

Feb. 22, 1995), which they believe mandate a decision in their favor. In Morris, the plaintiffs’ home

was damaged when their subdivision flooded. After a bench trial, the trial court found that the

flooding was caused by a defective and dangerous sewer system. When the subdivision’s drainage

system was installed in 1974, it did not meet the design criteria in effect at the time. The drainage

requirements became more stringent in 1986. The City annexed the property in 1990, taking “under

its jurisdiction the defective and possibly dangerous sewer system.” Morris, 1995 WL 72539 at *4.


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There was evidence that the subdivision had “continual problems with inadequate drainage since

about 1985.” Id. The court found that the City “certainly should have known that the condition of

the sewer did not comply with the drainage requirements in effect at the time of annexation.” Id.

The court found that the City allowed a temporary nuisance to persist and issued a mandatory

injunction to abate the nuisance.

       The district court found Morris “unpersuasive and factually distinguishable from the case at

bar.” R.E. 64 at 15. Unlike the sewer system in Morris, the drainage ditch here complied with the

required design criteria at the time it was constructed and at the time the City obtained the easement.

The sewer system in Morris never functioned properly, while “there is no evidence that the drainage

ditch [in this case] is or ever was defective in the same way that the sewer system in Morris was.”

Id. at 16. Further, although the City increased the drainage requirements for new channels in 1987,

it did not apply those requirements to existing infrastructure. Thus, the drainage ditch here does not

fail to comply with the design criteria applicable to it, whereas the sewer system in Morris did not

comply with the applicable design criteria at the time it was built or the more stringent standards

imposed in 1986. In addition, it appears that the City negligently maintained the sewer system in

Morris, whereas there is no evidence that the City negligently maintained the drainage ditch here.

       Perhaps more important, the court in Morris did not analyze whether the plaintiffs stated a

prima facie case of nuisance by demonstrating that the City undertook an “affirmative act” or “active

wrong” to create the nuisance. See Morris, 1995 WL 72539 at *4. Contrary to Plaintiffs’ argument,

Morris does not necessarily stand for the proposition that the annexation of a defective drainage


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system or the failure to “maintain” it are sufficient “affirmative acts” that render a municipality liable

for creating a nuisance; this issue was simply never addressed. As the Tennessee Supreme Court has

made clear, “the distinction must be preserved between negligence, and omission of duty, and a

nuisance, or active wrong.” Paduch, 896 S.W.2d. at 771. The failure to upgrade a drainage ditch,

which is the essence of Plaintiffs’ claim, falls into the category of negligence rather than nuisance.

Morris does not speak to this issue.

        Plaintiffs also contend that the district court should have followed Rucker v. Metropolitan

Govt. of Nashville, 1990 WL 182275 (Tenn. Ct. App. Nov. 28, 1990). In Rucker, the municipality

was found liable for negligence in a wrongful death action when a motorist drowned in her car after

the road flooded. The drainage system in the area was found to be “defectively designed, structurally

unsound and inadequate.” Id. at *2. Despite addressing a similar subject matter – drainage systems

– Rucker is inapplicable here. Rucker is a wrongful death case in which the City’s negligence was

at issue. Here, Plaintiffs’ claim is for nuisance, not negligence. Rucker did not address in any way

whether the defective drainage system constituted a nuisance. Accordingly, it is inapposite. The

district court did not err in declining to follow Rucker or Morris.

        The district court found Britton v. Claiborne County, 898 S.W.2d 220 (Tenn. Ct. App. 1995)

and Miller v. City of Brentwood, 548 S.W.2d 878 (Tenn. Ct. App. 1977) to be more pertinent to this

case. In Britton, the plaintiff’s property fronted a county road. The plaintiff never had water runoff

flood her property, which was lower than the road, until a nursing home and other homes were

constructed on the property across the street. The property owner across the road filled in a natural


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ditch, causing flooding on the plaintiff’s property every time it rained. The plaintiff sued the county

for failing to maintain the road and ditch in a safe condition. The court found that the county was

not liable because it never had maintained the natural ditch and because the was no proof that the

road itself was defective or dangerous. The court noted that the county did not cause or contribute

to the water runoff and stated that “where property owners are damaged by natural water runoff

created by private individuals or entities, their recourse is against those creating the runoff – not

against the county or municipality.” Britton, 898 S.W.2d at 223-24 (citing Miller, 548 S.W.2d at

883). See also Miller, 548 S.W.2d at 882-83 (city not liable for upstream construction that resulted

in more surface water runoff on the plaintiff’s property; plaintiff’s cause of action is against “the

owners of property which is producing the unnatural amount of surface water”).

        As the district court noted, Property Owners have admitted that the development of

surrounding property has increased the volume of water in the drainage ditch, leading to the flooding

of their property. This is consistent with the fact that Plaintiffs’ property did not experience flooding

until 1999, nearly thirty years after the ditch was constructed. There is no evidence that the ditch

itself was not maintained or constituted a dangerous condition. It is the increased upstream runoff,

not any condition of the ditch or any affirmative act of the City, that is creating the problem.

Property Owners do not dispute this fact or distinguish Britton or Miller. Nor do Property Owners

cite authority for the proposition that the City should be ordered to upgrade the drainage ditch under

the circumstances of this case. Accordingly, this court finds that the district court did not err in




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dismissing Plaintiffs’ nuisance claim, because Plaintiffs have failed to identify an affirmative act on

the part of the City that created the nuisance. See Paduch, 896 S.W.2d at 771.

D.     Costs

       Property Owners also appealed the district court’s award of costs in favor of the City,

contending that costs should not have been awarded because the City should not have prevailed on

the merits below. Because we affirm the order granting summary judgment in favor of the City, we

also affirm the order granting costs.

                                                 III.

       The district court’s order granting the City of Memphis’ motion for summary judgment and

the order granting costs in favor of the City are AFFIRMED.




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       HELENE N. WHITE, Circuit Judge, concurring. Because I conclude that Property

Owners’ action could properly be brought only under the Governmental Tort Liabilities Act, Tenn.

Code Ann. § 29-20-201, Peterson v. Putnam Cnty., No. M2005-02222-COA-R3-CV, 2006 WL

3007516, at *11 (Tenn. Ct. App. Oct. 19, 2006); Britton v. Claiborne Cnty., 898 S.W.2d 220, 222

(Tenn. Ct. App. 1994), and Property Owners steadfastly maintain that they do not proceed under that

statute, I concur in the affirmance.




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