United States District Court, W.D. Louisiana, Shreveport Division
CYNTHIA SUE MARY, ET AL.
QEP ENERGY COMPANY
HORNSBY MAGISTRATE JUDGE.
MAURICE HICKS, JR., CHIEF JUDGE
the Court are three Motions: (1) Defendant QEP Energy
Company's (“QEP”) Motion to Strike (Record
Document 88) the affidavits of Eric L. Glover
(“Glover”) and William J. Wood, Jr.
(“Wood”); (2) QEP's Motion for Partial
Summary Judgment (Record Document 49) seeking the dismissal
of Plaintiffs Cynthia Sue Mary and Paul's Land Company,
LLC's (“Plaintiffs” or “Marys”)
claims for a disgorgement of profits; and (3) Plaintiffs'
Cross Motion for Partial Summary Judgment (Record Document
93) against QEP on the issue of QEP's bad faith,
requiring a disgorgement of profits. For the reasons stated
in the instant Memorandum Ruling, QEP's Motion to Strike
is GRANTED IN PART and DENIED IN
PART; QEP's objection to the affidavit of
Michael E. White is SUSTAINED;
Plaintiffs' objection to the affidavit of Alaina Szlavy
is SUSTAINED IN PART and OVERRULED
IN PART; QEP's Motion for Partial Summary
Judgment is GRANTED; and Plaintiffs'
Cross Motion for Partial Summary Judgment is hereby
AND PROCEDURAL BACKGROUND
September 20, 2006, Paul E. Mary, III and Cynthia Sue Mary
(the “Marys”) entered into separate oil and gas
leases (the “Leases”) with Whitmar Exploration
Company (“Whitmar”) covering approximately 160
acres located in Section 14, Township 15 North, Range 10
West, Bienville Parish, Louisiana. See Record
Document 1-3 at 1. The Leases granted Whitmar the right to
explore for and develop oil and gas, and to conduct the
operations reasonably incidental thereto, “including
the use of the surface and a right-of-way for the collection
of geological and geophysical data, the drilling of core
samples, the installation of lease roads, the drilling and
completion of oil and gas production wells, the laying of
pipelines …to produce, save and deliver to market the
oil and gas products produced from the leasehold
premises.” Record Document 49-4 at 1. Whitmar
subsequently assigned all of its rights to Questar
Exploration and Production Company on March 19, 2007, which
subsequently became QEP. See Record Document 1-3 at
2009, each of the Marys entered into a Surface Use Payment
and Release Agreement with QEP agreeing upon a location for
the drilling pad for the Mary 14H No. 1 Well (“Mary
Well”) and for the construction of a road to service
the Mary Well. See Record Documents 49-6 and 49-7.
QEP paid $41, 882.00 for the use of the service road
described in the agreement. See id. On February 18
and 19, 2010, the Marys entered into a Pipeline Servitude
Agreement with QEP pursuant to which the Marys granted QEP a
thirty-foot wide permanent servitude for the installation of
two gas and one saltwater pipelines, covering a distance of
approximately 6, 258 feet. See Record Document 49-8.
QEP paid the Marys $189, 645.00 pursuant to this Pipeline
Servitude Agreement. See id. QEP spudded the Mary
Well on August 12, 2010. See Record Document 1-3. at
3. The Marys and QEP then entered into a Subsurface Easement,
pursuant to which the Marys granted an easement for the
purpose of drilling three directional well bores beneath the
Marys' property. See Record Document 49-9. QEP
paid the Marys $30, 000.00 for this Easement. See
id. On May 11, 2011, Paul E. Mary, III transferred all
of his interest, including his mineral and lease rights, to
the subject property to Paul's Land Company, L.L.C.
See Record Document 1-3 at 3.
2011, the Marys entered into an Amended Pipeline Servitude
Agreement which amended the earlier Pipeline Servitude
Agreement and granted QEP the right to install one additional
above ground valve on its existing pipeline, paying $2,
500.00 for this right. See Record Document 49-10. On
July 22 and 26, 2011, the Marys entered into an additional
Pipeline Servitude Agreement (the “Mary Pipeline
Servitude”), which the Marys granted QEP an additional
pipeline servitude covering a distance of approximately
147.55 feet. See Record Document 49-11. The purpose
of this Pipeline Servitude was to allow QEP to connect the
Pedro Wells, which were not located on the Marys'
property, to the Mary pipeline which was on the Marys'
property. See id. However, the gas pipeline
“cut the corner” of the servitude granted by the
Marys, and ran for a distance of approximately thirty-one
feet outside the designated boundaries of the servitude.
See Record Document 49-12. In addition, the
saltwater pipeline deviated outside the Mary Pipeline
Servitude for approximately fifteen feet. See id.
These deviations are the subject of the instant Motions.
originally filed suit on June 3, 2013, in the Second Judicial
District of Bienville Parish, Louisiana. See Record
Document 1-3. QEP removed the action by a Notice of Removal
filed on July 2, 2013, based upon diversity of citizenship
grounds. See Record Document 1. QEP filed its Motion
for Partial Summary Judgment on March 24, 2016. See
Record Document 49. QEP asks the Court to dismiss
Plaintiffs' claims seeking a disgorgement of profits, and
seeking an election by Plaintiffs as to whether to keep the
pipelines located on their property or require their removal.
See id. Plaintiffs originally opposed QEP's
Motion (Record Document 69), but subsequently filed its own
Cross Motion for Partial Summary Judgment (Record Document
93) on June 16, 2016, asserting QEP acted in bad faith in
constructing and possessing the pipelines located outside of
the Mary Pipeline Servitude. QEP also moves to strike the
affidavits of Glover and Wood, which were offered by
Plaintiffs in opposition to QEP's Motion for Partial for
Summary Judgment. See Record Document 88.
of the F.R.C.P. governs summary judgment. This rule provides
that the court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” F.R.C.P. 56(a). Also, “a party
asserting that a fact cannot be or is genuinely disputed must
support the motion by citing to particular parts of materials
in the record, including . . . affidavits . . . or showing
that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the
fact.” F.R.C.P. 56(c)(1)(A) and (B). “If a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as
required by Rule 56(c), the court may . . . grant summary
judgment.” F.R.C.P. 56(e)(3).
summary judgment motion, “a party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the pleadings . . . [and]
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553
(U.S. 1986) (internal quotations and citations omitted). If
the movant meets this initial burden, then the non-movant has
the burden of going beyond the pleadings and designating
specific facts that prove that a genuine issue of material
fact exists. See Celotex, 477 U.S. 317, 325, 106
S.Ct. 2548, 2554 (U.S. 1986); see Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A non-movant,
however, cannot meet the burden of proving that a genuine
issue of material fact exists by providing only “some
metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.” Little, 37 F.3d 1069,
1075 (5th Cir. 1994).
in deciding a summary judgment motion, courts “resolve
factual controversies in favor of the nonmoving party, but
only when there is an actual controversy, that is when both
parties have submitted evidence of contradictory
facts.” Id. Courts “do not, however, in
the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts.” Id.
partial summary judgment order is not a final judgment but is
merely a pre-trial adjudication that certain issues are
established for trial of the case.” Streber v.
Hunter, 221 F.3d 701, 737 (5th Cir.2000). Partial
summary judgment serves the purpose of rooting out,
narrowing, and focusing the issues for trial. See
Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d
1408, 1415 (5th Cir.1993).
FEDERAL COURT SITTING IN DIVERSITY
this case is before the Court under its diversity
jurisdiction, the Court must apply the substantive law of
Louisiana. See Bradley v. Allstate Ins. Co., 620
F.3d 509, 517 n. 2 (5th Cir. 2010), citing Erie R. R. v.
Tompkins, 304 U.S. 64 (1938). The Fifth Circuit in
In re Katrina Canal Breaches Litigation stated the
appropriate methodology to be applied by a Federal Court
sitting in diversity in Louisiana:
“To determine Louisiana law, we look to the final
decisions of the Louisiana Supreme Court in the absence of a
final decision by the Louisiana Supreme Court, we must make
an Erie guess and determine, in our best judgment, how that
court would resolve the issue if presented with the same
case. In making an Erie guess, we must employ Louisiana's
civilian methodology, whereby we first examine primary
sources of law: the constitution, codes, and statutes.
Jurisprudence, even when it rises to the level of
jurisprudence constante, is a secondary law source
in Louisiana. Thus, although we will not disregard the
decisions of Louisiana's intermediate courts unless we
are convinced that the Louisiana Supreme Court would decide
otherwise, we are not strictly bound by them.”
495 F.3d 191, 206 (5th Cir. 2007) (citations and internal
quotation marks omitted).
diversity cases in federal court are governed by federal, not
state, rules of evidence. See Fed.R.Evid. 101;
Morris v. Homco Int'l, Inc., 853 F.2d 337, 341
(5th Cir. 1988), citing Hanna v. Plumer, 380 U.S.
460, 473-74, 85 S.Ct. 1136, 1145 (1965).
Motions to Strike
moves to strike the affidavits of Glover and Wood on the
grounds that the affidavits are not based upon personal
knowledge, include opinion testimony the affiants are not
qualified to render, include rank speculation and conclusory
opinions, and include assertions regarding facts which are
irrelevant. See Record Document 88-1 at 1. Although
not included in its Motion to Strike, QEP also objects to the
affidavit of Michael E. White
(“White”). See Record Document 100 at 3.
Plaintiffs, in turn, object to the affidavit testimony of
Alaina Szlavy (“Szlavy”). See Record
Document 69-36 at 10.
Affidavit of Glover
is the owner and manager of Horizon Land Works, L.L.C.
(“Horizon”), which has performed numerous surveys
of pipeline servitudes for QEP, including the plat of survey
attached to the Pipeline Servitude Agreement between the
Marys and QEP. See Record Document 87 at 1. QEP
asserts the affidavit fails to offer any basis for
Glover's qualifications or expertise to opine about any
issue relating to the survey, specifically Glover's
opinion that “[i]t is also obvious from Winn's
‘as built' survey that QEP and/or its contractor
tried to ‘rope' the pipelines into the pipeline
servitude … This sort of installation would have saved
QEP and/or its contractor money on pipe and fittings.”
See Record Document 88-1 at 5. QEP considers
Glover's testimony as “rank speculation” and
“opinions unsupported by information actually known to
[the Affiant].” Id. Plaintiffs believe
Glover's position as owner of Horizon qualifies him to
give his opinions under Rule 701 of the Federal Rules of
If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Fed. R. Evid. 701. Under this Rule “a lay opinion must
be based on personal perception, must be one that a normal
person would form from those perceptions, and must be helpful
to the [fact finder].” Texas A & M Research
Found. v. Magna Trans., Inc., 338 F.3d 394, 403 (5th
Cir. 2003). “In particular, the witness must have
personalized knowledge of the facts underlying the opinion
and the opinion must have a rational connection to those
facts.” Id., quoting Mississippi Chem.
Corp. v. Dresser-Rand Co., 287 F.3d 359, 373 (5th Cir.
2002). “[R]ule 701 does not preclude testimony by
business owners or officers on matters that relate to their
business affairs.” Id.
instant case, the Court finds that Glover has not been shown
to have personalized knowledge regarding the facts underlying
his opinions on the issue of pipeline construction costs.
Glover's opinion regarding this issue is based solely on
the “as built” plat of survey made by Winn
Surveying & Engineering, L.L.C., which shows the Mary
pipeline “cutting the corner” of the L-shaped
servitude. However, the affidavit does not show Glover has
any knowledge regarding construction ...