State Line Fishing & Hunting Club, Inc. v. Waskom, Tex.

• Decision Date: 02 January 1991
• Docket Number: Civ. A. No. M-88-0147.
• Citation: 754 F. Supp. 1104
• Parties: STATE LINE FISHING & HUNTING CLUB, INC. et al. v. CITY OF WASKOM, TEXAS.
• Court: U.S. District Court — Eastern District of Texas

754 F. Supp. 1104

STATE LINE FISHING & HUNTING CLUB, INC. et al. v. CITY OF WASKOM, TEXAS.

Civ. A. No. M-88-0147.

United States District Court, E.D. Texas, Marshall Division.

January 2, 1991.

COPYRIGHT MATERIAL OMITTED

T. John Ward, Brown Maroney Oaks & Hartline, Houston, Tex., for plaintiff.

David J. LaBrec, Strasburger & Price, Dallas, Tex., for defendant.

MEMORANDUM RULING

STAGG, District Judge, Sitting by Designation.

This case is presently before the court after reassignment from Judge William Wayne Justice of the Eastern District of Texas. As venue is proper only in the Eastern District of Texas, assignment to this court does not transfer venue to the Western District of Louisiana. Pending are several motions to reconsider or alter judgments entered by Judge Sam B. Hall, Marshall Division for the Eastern District of Texas. The court will deal with each motion separately.

THE FACTS:

Plaintiff, State Line Fishing & Hunting Club, Inc., is a corporation which owns approximately 200 acres of land in Caddo Parish, Louisiana, on which State Line Lake is located. The lake is a man-made reservoir which was filled for the first time in 1913. The individual plaintiffs, as shareholders, lease property from State Line Fishing & Hunting Club, Inc., and have built improvements on their property.

Defendant, City of Waskom, Texas, operates a waste water treatment facility located approximately 1½ miles from plaintiffs' property. Although the City of Waskom operated an antiquated system prior to 1975, in that year it constructed the current waste water treatment facility with the assistance and approval of the Environmental Protection Agency ("EPA") and the Texas Water Commission ("TWC").

Both parties agree that State Line Lake has become unusable, particularly since 1986, because of severe moss coverage of the lake. Plaintiffs allege that the moss growth was caused primarily by an effluent discharge from defendant's waste water treatment facility. Plaintiffs assert jurisdiction under the Federal Water Pollution Control Act (hereinafter, "Clean Water Act"), 33 U.S.C. § 1365(a), to enforce "an effluent standard." Plaintiffs also assert claims under this court's diversity jurisdiction for negligence, nuisance and trespass under Texas state law.

Plaintiffs seek civil penalties and a permanent injunction under the Clean Water Act to have the City of Waskom abide by the EPA's effluent discharge permit. Under their state law claims, they seek monetary damages for the temporary damage to their property and/or a permanent injunction to alleviate the pollution problem.

Defendant claims that plaintiffs do not have standing under the Clean Water Act, as the defendant was not "in violation" of the Clean Water Act at the time the suit was filed. It also asserts that any damage to plaintiffs is permanent in nature and, therefore, the statute of limitations bars the state law claim. Both sides agree that the moss began covering the lake approximately 20 years ago. If plaintiffs' injuries are permanent, then the claim is barred by Texas' two-year statute of limitations which began to run at the time of the first injury. Plaintiffs, however, claim that their claim is temporary in nature and, therefore, not barred by the two-year statute of limitations. Plaintiffs claim that the moss problem could be substantially eliminated by injunctive relief, and that the moss growth is not constant but disappears in the winter and recurs in summer.

Based upon these contentions, the City of Waskom filed its motion for summary judgment on December 20, 1989, asking that plaintiffs' Clean Water Act claim be dismissed for lack of subject matter jurisdiction, and that plaintiffs' state law claims be dismissed as they are barred by the applicable statute of limitations or, in the alternative that the defendant is immune from liability as a matter of Texas law because the operation of a waste water facility is a governmental function. The plaintiffs opposed the motion for summary judgment and asked for partial summary judgment on their Clean Water Act claim.

PROCEDURAL POSTURE:

On January 25, 1990, Judge Hall entered summary judgment in favor of the defendant. The court first found that plaintiffs' suit was not barred by administrative preclusion. The court next found that defendant was entitled to summary judgment on the Clean Water Act claim. In addition, the court found that, because plaintiffs had facts before them to show that the moss was caused by factors other than the effluent emission and because the defendant's noncompliance with the EPA standards were few and sporadic, plaintiffs' claims were not brought in good faith. The court then assessed attorney's fees and costs against plaintiffs under 33 U.S.C. § 1365(d). The court also granted summary judgment on plaintiffs' state law claims, finding that plaintiffs' injuries were permanent and, therefore, the claims had prescribed. The court amended its order on February 6, 1990, withdrawing its language finding that the claim was brought in bad faith and instead held that the claim was groundless, and reinstated the award of attorney's fees to the defendant under 33 U.S.C. § 1365(d).

Plaintiffs filed a motion to reopen the evidence or for a new trial, arguing that the court should reconsider its granting of summary judgment in favor of defendant on the merits or, in the alternative, should reopen evidence on the issue of attorney's fees for defendant, as neither party had briefed the issue of whether plaintiffs' suit was groundless. Defendant filed a motion for costs, which plaintiffs opposed. Attached to the plaintiffs' opposition to defendant's motion for costs was the affidavit of Marshall attorney William Huffman. Mr. Huffman practices law in the same law firm with Judge Hall's son-in-law. Although Mr. Huffman had been listed as an expert witness on attorney's fees in a pretrial order filed with the court in October 1989, which the court had adopted, Judge Hall found that Mr. Huffman's affidavit was filed for the sole purpose of forcing Judge Hall to recuse himself. After berating plaintiffs for the "ruse" in which they had allegedly participated, Judge Hall recused himself. Thereafter, the case was assigned to Judge William Wayne Justice of the Eastern District of Texas, Tyler Division.

Plaintiffs filed a motion to vacate the factual findings in the recusal order, particularly those indicating the plaintiffs' counsel had acted unethically in submitting Mr. Huffman's affidavit concerning attorney's fees. Judge Justice thereafter assigned the case to this court.

LAW OF THE CASE:

Defendant argues that the "law of the case" doctrine should preclude this court from reopening the evidence. Defendant argues that Judge Hall was intimately familiar with the case's evidence and issues and for this court to revisit the issues and review the evidence would be a needless, monumental task and a waste of judicial economy. Defendant further asserts that the plaintiffs' remedy is to appeal and that appeal is to be made to an appellate court and not to this court.

Plaintiff points out that the three motions pending before this court have never been ruled on by Judge Hall and, therefore, the law of the case doctrine cannot bar the court from ruling. Furthermore, the plaintiffs correctly state that the controlling case in the Fifth Circuit regarding a second court's reconsideration of a first court's ruling is Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir.1982). In Abshire, the initial trial judge entered a partial summary judgment, finding that the plaintiff was not a Jones Act seaman. The case was, thereafter, assigned to a different district judge who granted plaintiff's motion for reconsideration of the partial summary judgment. The case went to trial, and the jury found that plaintiff was a seaman and awarded damages under the Jones Act. The Fifth Circuit held that the successor judge acted well within his discretion in vacating the earlier partial summary judgment entered by the prior judge. 668 F.2d at 837. The Court recognized that "the general rule is that when a district judge has rendered an order or a judgment and when the case is then transferred to the calendar of another judge, the successor judge should not overrule the earlier order or judgment." Id. This rule is merely a starting point. The successor judge has the same discretion as the first judge to reconsider the order. Id. at 837-38.

CHARACTERIZATION OF THE MOTION:

The plaintiffs have filed a motion to reopen the evidence or, in the alternative, a motion for new trial. The Federal Rules do not explicitly provide for a motion for reconsideration of summary judgment; however, the Fifth Circuit has instructed the district courts to treat these motions as either Rule 59(e) or Rule 60(b) motions. In Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167 (5th Cir.1990), the Fifth Circuit delineated the different standards of review used to consider a Rule 59(e) motion or a Rule 60(b) motion. A motion for reconsideration filed within ten days after a final judgment is rendered will be treated as a motion to alter or amend. Any motion for reconsideration filed outside of the ten-day limitation will be treated as if it were a Rule 60(b) motion. Plaintiffs' motion was filed within ten days of the final judgment in this case and will, therefore, be treated as a Rule 59(e) motion.

In Lavespere, the plaintiff filed a motion for reconsideration of the granting of a summary judgment and submitted, in support of that motion, evidentiary materials that she had failed to file in opposition to the summary judgment motion. The Fifth Circuit explained:

A motion to reopen a case under Rule 59(e), though subject to much more stringent time limitations than a comparable motion under Rule 60(b), is not controlled by the same exacting substantive requirements. Unlike Rule 60(b), Rule 59(e) does not set forth any specific

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