Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Watson v. Arkoma Development LLC

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

November 15, 2018

W. BROOKS WATSON, ET AL.
v.
ARKOMA DEVELOPMENT, LLC, ET AL.

          TERRY A. DOUGHTY MAG. JUDGE

          REPORT AND RECOMMENDATION

          Karen L. Hayes United States Magistrate Judge

         Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to dismiss filed by Defendant Southern Natural Gas Company, LLC (“SNG”) [doc. # 33] and a motion to dismiss filed by Defendant ConocoPhillips Company, as alleged successor to Phillips Petroleum Company (“Conoco”) [doc. # 34]. The motions are opposed. For reasons explained below, it is recommended that the motions be GRANTED IN PART and DENIED IN PART.

         Background

         This case, filed in state court on June 27, 2017, and removed to this court on October 17, 2017, arises out of Defendants' alleged oil and gas exploration and production activities that contaminated or otherwise harmed real property located in Tensas Parish, Louisiana owned and/or used by Plaintiffs (the “Property”). (Petition ¶ 2, [doc. # 1-1]). Specifically, Plaintiffs allege that, since the 1920s, the operation of various wells and related facilities resulted in the disposal of oilfield waste in unlined earthen pits, which have contaminated the surface and subsurface of the Property. (Id. ¶¶ 5, 7). Plaintiffs allege that each of the Defendants or their predecessors-in-interest participated in the various oil and gas exploration and production activities and knew or should have known that the operations would contaminate the Property. (Id. ¶¶ 6, 12).

         On June 12, 2018, SNG and Conoco filed their respective motions to dismiss. [docs. # 33, 34]. Plaintiffs filed their opposition on July 5, 2018. [doc. # 38]. Conoco and SNG replied on July 10, 2018, and July 12, 2018, respectively. [docs. # 39, 40]. On July 23, 2018, Plaintiffs, with leave of the Court, filed a supplemental opposition [doc. # 43]. On July 26, 2018, SNG, with leave of the Court, filed a supplemental reply. [doc. # 46]. This matter is ripe.

         Standard of Law

         Federal Rule of Civil 12(b)(6) sanctions dismissal when plaintiff fails “to state a claim upon which relief can be granted.” A pleading states a claim for relief when, inter alia, it contains “a short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it contains sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility requires more than just the “sheer possibility” that a defendant acted unlawfully, id.; it calls for enough facts “to raise a reasonable expectation that discovery will reveal evidence” to support the elements of the claim. Twombly, 550 U.S. at 556. Although the Rule 8 pleading standard of does not require “detailed factual allegations, ” mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” do not suffice. Id. at 555.

         In deciding a Rule 12(b)(6) motion, a court may rely on the complaint, its attachments, “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). Additionally, a court must accept as true all factual allegations, although the same presumption does not extend to legal conclusions. Iqbal, 556 U.S. at 678. A court may permit a well-pleaded complaint to proceed even when “actual proof of those facts is improbable” or recovery is unlikely. Twombly, 550 U.S. at 556. But a court will dismiss a complaint “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 67. Overall, assessing whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         Discussion

         I. Restatement (Second) of Torts § 324A

         Louisiana courts recognize the common law “Good Samaritan Doctrine” codified in the Restatement (Second) of Torts § 324A, which provides

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect [perform] his undertaking, if (a) his failure to exercise reasonable care increases the risk of harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Bujol v. Entergy Servs., Inc., 2003-0492 (La. 5/25/04), 922 So.2d 1113, 1128 (quoting Restatement (Second) of Torts § 324A). This doctrine is typically “used to impose liability upon an actor who has failed to exercise reasonable care when it undertook to perform a duty owed to a third party.” Id.

         In support of their motions, SNG argues that Plaintiffs have failed to allege that SNG “undert[ook] to render services to another, ” and Conoco argues that Plaintiffs have not alleged that Conoco “rendered services” that were “necessary for the protection of Plaintiffs.” (SNG Mem. at 2, [doc. # 33-1]; Conoco Mem. at 11, [doc. # 34-1]). Plaintiffs respond that their Petition “clearly states a cause of action, ” because as successors, “defendants assumed duties owed to the plaintiffs to protect the Property from contamination and harm.” (Opp. Mem. at 13, [doc. # 38]). Plaintiffs also claim that SNG erroneously relies on Alford v. Chevron U.S.A. Inc., 13 F.Supp.3d 581 (E.D. La. 2014), to support its motion, which can be distinguished from this case because it involved a defendant who did not operate on the plaintiff's property at all. (Id. at 12).

         In its reply, SNG reiterates that Plaintiffs have failed to allege that SNG undertook “services.” (SNG Reply Mem. at 1-2, [doc. # 40]). Further, SNG notes that Plaintiffs' attempt to distinguish Alford ignores the fact that “this Court has evaluated this exact allegation . . . numerous times and dismissed this claim as to both operators and non-operators.” (Id. at 2). Conoco replies that Plaintiffs have failed to explain how Conoco's “alleged operations constituted (1) services (2) rendered to Plaintiffs' predecessors that (3) were ‘necessary for the protection of a third person or his things.'” (Conoco Reply Mem. at 7, [doc. # 39]).

         Upon review of the Petition, the undersigned finds that Plaintiffs have failed to allege that SNG and Conoco undertook to render services to Plaintiffs or their predecessors. The Petition states that “defendants are liable to plaintiffs under the provisions of Section 324A of the Restatement 2d, as interpreted by Louisiana jurisprudence. Under Section 324A, one or more of the defendants assumed duties owed by others to the plaintiffs to protect plaintiffs and their Property from contamination and harm.” (Petition ¶ 16). Other than this assertion, which Plaintiffs simply repeat in their opposition brief, Plaintiffs plead no facts to support its allegation that these defendants or their predecessors undertook any duty to render services. Courts in this circuit have consistently dismissed claims under Section 324A on similar facts, when plaintiffs fail to allege defendants undertook to render services to them. See, e.g., Ritchie Grocer Co. v. 2H, Inc., No. 1:14-CV-02868, 2015 WL 9589890, at *4 (W.D. La. Sept. 16, 2015); Tureau v. 2H, Inc., No. 1:13-CV-02969, 2015 WL 4694072, at *7 (W.D. La. Aug. 6, 2015); Alford, 13 F.Supp.3d at 602-03.

         Accordingly, it is recommended that Plaintiffs' claim under Restatement (Second) of Torts § 324A be dismissed.

         II. Continuing Tort and Continuing Trespass

         Plaintiffs allege that the defendants are “guilty of a continuing tort and a continuing trespass” because their “acts or omissions, and their continuing unlawful conduct, have caused successive damages or an ongoing and cumulatively increasing deterioration of plaintiffs' Property.” (Petition ¶ 17). SNG and Conoco argue that Plaintiffs have failed to allege any continued action by the defendants to support a cause of action for a continuing tort or a continuing trespass. (SNG Mem. at 3-4; Conoco Mem. at 4).[1]

         In response, Plaintiffs claim to “have clearly and sufficiently alleged that the Defendants are guilty of a tort” because the pits on the Property were not properly closed, so that the tortious conduct continued after Defendants abandoned their operations. (Opp. Mem. at 22). Plaintiffs cite Marin v. Exxon Mobil Corp., 2009-2368 (La. 10/19/10), 48 So.3d 234, 253-55, for the proposition that “[u]ntil a pit is properly closed, the disposal or storage of any contamination in the pit constitutes a continuing tort.” (Opp. Mem. at 23). Plaintiffs claim it is “common sense” that “[w]hile a pit remains open, the hazardous contents can be driven underground by the pressure of rainwater, thus presenting an exacerbating situation that is not present with properly closed pits.” (Id. at 22). In the alternative, Plaintiffs agree to amend paragraph 17 of their Petition to remove the word “continuing” and “further agree to argue about the continuing tort exception as a defense to prescription if and when a prescription hearing occurs.” (Id. at 25).

         SNG and Conoco reply that Plaintiffs' interpretation of Marin is incorrect and has been expressly rejected by this court in Sweet Lake Land & Oil Co. LLC v. Exxon Mobil Corp., No. 2:09CV1100, 2011 WL 4591084 (W.D. La. Sept. 29, 2011) and Ritchie, 2015 WL 9589890, at *2-3. [SNG Reply Mem. at 3-4; Conoco Reply Mem. at 4-5].

         Continuing torts and continuing trespasses are not causes of action per se, but rather a doctrine by which plaintiffs can delay prescription of their claims. See Crump v. Sabine River Auth., 98-2326 (La. 6/29/99), 737 So.2d 720, 726. When the operating cause of an injury is not continuous, the action is barred “one year from the date in which plaintiff acquired, or should have acquired, knowledge of the damage.” Id. (citations omitted). When “the operating cause of injury is a continuous one and gives rise to successive damages, prescription dates from the cessation of the wrongful conduct causing the damage.” Id. Both continuing torts and continuing trespasses require ongoing unlawful acts and not merely a “continuation of the ill effects of an original, wrongful act.” Id. at 728; see Hogg v. Chevron USA, Inc., 2009-2632 (La. 7/6/10), 45 So.3d 991, 1003-04 (noting a continuing trespass applies the same inquiry as a continuing tort).

         Torts are “continuous in nature where each individual act would not necessarily give rise to a cause of action; but instead, the cumulative effect of regularly-occurring or continuous actions results in successive damages from day to day.” James v. New Century Mortg. Corp., No. CIV.A. 04-194, 2006 WL 2989242, at *7 (E.D. La. Oct. 17, 2006) (citations omitted). Plaintiff bears the burden of establishing the “continuous action and continuous damage” for the continuing tort doctrine to apply. Id.at *6.

         Plaintiffs have not sufficiently pleaded a theory of continuing tort or continuing trespass. First, Plaintiffs' reliance on Marin is misplaced. In Marin, the court determined that the “operating cause of plaintiffs' injury was still the actual disposal or storage of the oilfield waste in unlined pits on plaintiffs' property.” 48 So.3d at 254. The closure of the actual pits simply “constituted the termination of continuing conduct” based on the specific facts of the case. Ritchie, 2015 WL 9589890, at *2 (citing Marin, 48 So.3d 234). Thus, despite Plaintiffs' claim that none of the pits were properly closed, an open pit on its own does not support application of a continuing tort theory.

         Second, Plaintiffs allege “[t]he pollution by the defendants continues to migrate, ” (Petition ¶ 17), but have not sufficiently pleaded that the damage-causing conduct is continuing. Under Louisiana law, there is no continuing tort or continuing trespass when the cause of the injury is not continuing, even when the ill effects of the original, wrongful act continue. See, e.g., Hogg, 45 So.3d at 1006 (continuing tort/trespass theory did not apply when tanks causing gasoline leakage were replaced, even though gasoline continued to remain in soil); Crump, 737 So.2d at 727-28 (diversion of water was the continuing ill effect of the single tortious act of digging a canal, so continuing tort theory did not apply). According to the Petition, the oil and gas wells listed in the Petition have been plugged and abandoned or ceased operation, [2] (SNG Mem. at 3 (citing Petition Ex. B. [doc. # 1-2])), and Plaintiffs have not provided facts that the damage-causing conduct did not cease years ago. Plaintiffs' allegation that the defendants are engaging in unlawful conduct is conclusory. Even if the Property remains polluted, there is no a continuing tort or continuing trespass absent some ongoing conduct, which Plaintiffs have failed to plead sufficiently.

         Accordingly, Plaintiffs' claims for a continuing tort and a continuing trespass should be dismissed.

         III. Civil Code Article 667

         Plaintiffs claim Defendants are also liable under La. Civ. Code art. 667, which imposes liability on landowners or proprietors for actions that damage his neighbors. Article 667 was amended in 1996, and Plaintiffs claim Defendants are liable for damages sustained before and after the amendment. According to the Petition, the damage on the Property was “caused by [Defendants'] handling, storage, discharge, and disposal of toxic and hazardous . . . oil field waste, ” and the “storage and disposal of the . . . toxic and hazardous substances constitutes an ultra-hazardous activity.” (Petition ¶¶ 19, 30).

         The pre-1996 version imposes liability on proprietors for damage caused by ultrahazardous activities. Morgan Plantation, Inc. v. Tennessee Gas Pipeline Co., LLC, No. 16-CV-1620, 2017 WL 4864489, at *5 (W.D. La. Sept. 21, 2017) (citations omitted). In pre-1996 claims, for an activity to be ultrahazardous under Louisiana law, it “(1) must relate to land or some other immovable; (2) must itself cause the injury, and the defendant must be engaged directly in the injury-producing activity; and (3) must not require substandard conduct to cause injury.” Id. “The ultrahazardous label is thus limited to those activities which present a risk of harm that cannot be eliminated through the exercise of due care.” Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 550 (5th Cir. 1987) (citations and internal quotations omitted).

         The post-1996 version altered the theory of a proprietor's liability. Yokum v. 615 Bourbon St., L.L.C., 2007-1785 (La. 2/26/08), 977 So.2d 859, 874. As a result, a proprietor is liable (1) if he fails to exercise reasonable care to prevent damage caused by his “works” that he knew or shown have known about; and (2) for damage “caused by an ultrahazardous activity. An ultrahazardous activity as ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.