United States District Court, W.D. Louisiana, Monroe Division
W. BROOKS WATSON, ET AL.
ARKOMA DEVELOPMENT, LLC, ET AL.
A. DOUGHTY MAG. JUDGE
REPORT AND RECOMMENDATION
L. Hayes United States Magistrate Judge
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.
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).
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.
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).
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.
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.
Restatement (Second) of Torts § 324A
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.
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).
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]).
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
it is recommended that Plaintiffs' claim under
Restatement (Second) of Torts § 324A be dismissed.
Continuing Tort and Continuing Trespass
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.
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).
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].
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).
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.
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
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,
(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
Plaintiffs' claims for a continuing tort and a continuing
trespass should be dismissed.
Civil Code Article 667
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).
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).
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 ...