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Ritchie Grocer Co v. 2 H Inc.

United States District Court, W.D. Louisiana, Alexandria Division

March 13, 2018

RITCHIE GROCER CO.
v.
2 H INC., ET AL.

          MAG. JUDGE PEREZ-MONTES

          MEMORANDUM RULING

          DEE D. DRELL, JUDGE UNITED STATES DISTRICT COURT

         Pending before the court is a motion for summary judgment filed by defendants BEPCO, L.P., BOPCO, L.P., BEPCO Genpar, L.L.C. and BOPCO GP, L.L.C. ("Defendants") in the above-captioned legacy lawsuit. (Doc. 120). Considering the arguments of the parties, as well as applicable law and jurisprudence, Defendants' motion will be GRANTED.

         I. BACKGROUND

         A. Relevant Facts

         Plaintiff is an Arkansas corporation authorized and doing business in the State of Louisiana and the owner of the tract of land at the center of this litigation.[1] Plaintiff alleges that Defendants, all either engaged in oil and gas exploration and production activities on Plaintiffs land or successors-in-interest to earlier oil and gas exploration and production companies, are liable for damage caused to their land by them and/or their predecessors-in-interest under Louisiana law (hereinafter "predecessors"). Specifically, Plaintiff complains that its land is contaminated as a result of the disposal of toxic and hazardous substances[2] in unlined pits during day-to-day operations of Defendants and their predecessors. Moreover, Plaintiff asserts that Defendants sought to conceal their pollution of the property at issue and failed to inform Plaintiff of the true nature of the pollution, such that Defendants were unaware of the facts necessary to assert these claims until they were contacted by an attorney, Mr. Eddie Knoll in April of 2013.[3]

         B. Procedural History

         This legacy lawsuit was originally filed in the Twelfth Judicial District Court for the Parish of Avoyelles by plaintiffs Justin Dale Tureau ("Tureau"), Kenneth James Guilbeau ("Guilbeau") and Ritchie Grocer Company "("RGC").[4] Defendants timely removed the suit to this court based on our federal diversity jurisdiction, citing the varying state citizenships among the parties and attesting that the amount in controversy exceeds the $75, 000 threshold, exclusive of interest and costs, as required under 28 U.S.C. § 1332.[5] Plaintiffs subsequently filed a "Motion to Remand" and Defendants filed a "Motion for More Definite Statement, Partial Motion to Dismiss for Failure to State a Claim and Motion to Sever."[6] Ultimately, Plaintiffs' motion to remand was denied and Defendants' motion to sever was granted.[7] Each Plaintiffs claims were assigned a separate docket number and were designated as "related" matters.[8] All other pending motions were terminated and the parties were directed to refile any desired motions in the appropriate individual case, tailoring the arguments to the facts of each case.[9]

         RGC filed its First Supplemental and Amending Complaint in June of 2015, revising its list of named defendants to BEPCO L.P., BEPCO GENPAR, L.L.C., BOPCO, L.P. and BOPCO GP, L.L.C.[10] Defendants' instant motion pleads the peremptory exception of prescription as to all remaining claims by Plaintiff in this suit.[11] The motion is fully briefed and ready for disposition.

         II. ANALYSIS

         Ordinarily, the party pleading prescription of one or more claims bears the burden of proof on this issue. If, however, prescription is evident on the face of the pleadings, the burden shifts to the opposing party to demonstrate that the subject claim or claims falls within the ambit of an exception to prescription.[12] A federal court sitting in diversity will apply Louisiana's substantive law regarding prescription, where applicable.[13]

         In this case, RGC's complaint alleges that it did not have actual or constructive knowledge of the pollution forming the basis of this suit or Defendants' role in that pollution until "less than a year prior" to its filing.[14] Alternatively, RGC's complaint alleges a litany of acts by Defendants which it contends "prevented [RGC] from availing [itself] of the causes of action alleged herein."[15] RGC lists, among these, hiding or concealing pollution; failing to inform it of pollution; fraud and misrepresentation.[16]

         Contra non valentem agree nulla curritpraescriptio is a well-recognized exception to the Louisiana law precept that prescription runs against all persons.[17] Jurisprudence recognizes four (4) limited instances in which contra non valentem may be applied, including, relevant for our purposes here two of them:

.. .where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action ["Type 3"]; and...where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant ["Type 4"]."[18]

While Plaintiffs complaint is sufficient to shift the burden to Defendants with respect to its type four contra non valentem claims, we find that the complaint - even as amended - fails to allege facts with particularity for purposes of type three contra non valentem. Fed. R. Civ. P. 9(b), La. C.C.P. Art. 856. For that reason, we find that the burden remains with Plaintiff as to type this specific type of contra non valentem.

         As to Type 3, explained by the Louisiana Supreme Court in the controlling case of Marin v. Exxon Mobil Corp., 48 So.3d 234, 252 (La. 2010), in order to support a claim for contra non valentem in which the debtor's own acts prevent the creditor from availing himself of his cause of action, Plaintiff must demonstrate three (3) elements: (1) Defendants engaged in conduct which rose to the level of concealment, misrepresentation, fraud or ill practice; (2) Defendants' actions effectually prevented Plaintiff from pursuing his cause of action; and (3) Plaintiffs inaction was reasonable under the circumstances.

         Comparing the conduct alleged by RGC in the instant suit with that detailed in Marin, a seminal case in the application of contra non valentem to legacy lawsuits, the court is convinced that Plaintiffs allegations fail to rise to the level required to sustain a type three contra non valentem exception. Specifically, in Marin, the state high court highlighted allegations that Exxon "lulled" its plaintiffs into believing remediation attempts undertaken on the property in question were successful and agreed that payments by Exxon to plaintiffs for sugarcane losses were likely further attempts at such "lulling" to stave off litigation. Nevertheless, the court's conclusion was that these self-serving practices were not in the nature of fraud, but rather in the vein of understandable attempts at preventing what Exxon could naturally predict to be costly and time consuming litigation. The court determined that none of Exxon's overtures prevented plaintiffs from availing themselves of their cause of action. ...


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