Abramson v. Florida Gas Transmission Co., Civ. A. No. 91-4255

• Decision Date: 20 November 1995
• Docket Number: 93-2404.,Civ. A. No. 91-4255
• Citation: 909 F. Supp. 410
• Parties: Aaron ABRAMSON, et al. v. FLORIDA GAS TRANSMISSION COMPANY, et al.
• Court: U.S. District Court — Eastern District of Louisiana

909 F. Supp. 410

Aaron ABRAMSON, et al. v. FLORIDA GAS TRANSMISSION COMPANY, et al.

Civ. A. Nos. 91-4255, 93-2404.

United States District Court, E.D. Louisiana.

November 20, 1995.

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Karen Delcambre McCarthy, Lanny R. Zatzkis, Yvette Anne D'Aunoy, Zatzkis & Associates, New Orleans, LA, Louis B. Merhige, Louis B. Merhige, Metairie, LA, for Aaron Abramson.

Louis B. Merhige, Metairie, LA, for Alfred Abramson, Joseph Abramson, Carol Abramson Schudmak, Eugenie Marrus Abramson, Steven M. Brainis, Joseph M. Brainis, David Brainis, Lucy Abramson Brainis, Debra Brainis Lester, Sara Brainis Rambin and Ethel Abramson.

Michael Ray Mangham, Michael J. O'Shee, Mangham & Hardy, Lafayette, LA, Louis P. Soldano, Florida Gas Transmission Co., Houston, TX, for Florida Gas Transmission Co.

Bryan David Fisher, Hank Seldon Hannah, Hannah, Colvin & Pipes, Baton Rouge, LA, for Ralston & Associates, Inc.

Stephen Louis Huber, Borrello, Huber & Dubuclet, Metairie, LA, Lawrence Emig Larmann, W. Evan Plauché, Hailey, McNamara, Hall Larmann & Papale, Metairie, LA, for Henkels & McCoy Inc.

Lawrence Emig Larmann, Dominic J. Ovella, W. Evan Plauché, Hailey, McNamara, Hall Larmann & Papale, Metairie, LA, Russell Louis Sylvester, Brittain & Sylvester, Natchitoches, LA, for Liberty Mut. Ins. Co.

Eric Shuman, McGlinchey, Stafford & Lang, New Orleans, LA, Richard W. Bryan, Douglas C. McAllister, Jackson & Campbell, Washington, DC, for National Union Fire Ins. Co. of Pittsburgh.

ORDER AND REASONS

JONES, District Judge.

Pending before the Court is a "Motion to Dismiss Claims for Remediation Damages" filed by defendant Henkels & McCoy, Inc. The motion was taken under submission on a previous date without oral argument. Having reviewed the memoranda of the parties, the record and the applicable law, the Court GRANTS the motion in part and DENIES the motion in part.

Background

Plaintiffs have asserted claims against defendants Florida Gas Transmission Company (hereinafter "Florida Gas") and Henkels & McCoy, Inc., for damages to their property following a reconditioning project on a natural gas pipeline that traverses plaintiffs' property. Plaintiffs seek damages for various items, including but not limited to damages for material allegedly left on the property. Florida Gas owns the pipeline, and Henkels & McCoy was the reconditioning contractor.¹

Plaintiffs allege breach of contract against Florida Gas arising out of an alleged breach of the "Temporary Work Space Agreement" granted Florida Gas for the pipeline reconditioning project.² Plaintiffs also allege negligence of both Florida Gas and Henkels & McCoy and a violation of Louisiana Civil Code Article 745.³ Plaintiffs further contend that Henkels & McCoy breached its contract with Florida Gas through its actions and that plaintiffs are third-party beneficiaries to this contract, entitling them to specific performance and damages.⁴

In this motion Henkels & McCoy seeks to dismiss plaintiffs' claims for remediation for several reasons. First, Henkels & McCoy maintains that remediation damages are neither necessary nor appropriate. Second, Henkels & McCoy contends that federal law preempts remediation damages because of the nature of the pipeline. In a related argument, Henkels & McCoy submits that, even if remediation damages are appropriate, only Florida Gas can perform the remediation under federal law such that an award of damages for anyone else to perform the remediation is inappropriate. In a further related contention, Henkels & McCoy posits that because only Florida Gas can perform the remediation, plaintiffs' claims are extinguished under the Louisiana doctrine of confusion.⁵

Also relying on Louisiana law, Henkels & McCoy theorizes that injunctive relief is the only available remedy to plaintiffs, not damages, and/or that remediation damages are not the appropriate measure of damages. Finally, Henkels & McCoy asserts that under Louisiana law governing servitudes, plaintiffs are not entitled to recover damages for material allegedly left on plaintiffs' property.

Plaintiffs dispute each and every point raised by Henkels & McCoy and also maintain that, to the extent that Henkels & McCoy seeks dismissal of plaintiffs' claims based in tort, plaintiffs still maintain a cause of action against defendants for breach of contract.

Law and Application

I. Standard of Review

Although Henkels & McCoy styles this motion as a motion to dismiss, as to certain issues Henkels & McCoy relies on matters outside of the pleadings. Hence, as to those issues on which defendant does not refer to matters outside the pleadings, the Court will apply the standard for motions to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). As to those issues where matters are presented outside the pleadings, the Court will consider the motion as a motion for summary judgment and apply the standard of review set forth in Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b).

A. Motion to Dismiss

As to those issues on which Henkels & McCoy seeks dismissal for failure to state a claim, the moving party has the burden of showing that plaintiff can prove no set of facts consistent with the allegations in the complaint which would entitle it to relief. Baton Rouge Building and Construction Trades Council AFL-CIO v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir. 1986), citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984). The purpose of a Rule 12(b)(6) motion is to test the sufficiency of the complaint, not to decide the merits of the case, even if it "appears on the face of the pleadings that a recovery is very remote and unlikely." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

The court must accept all well-pleaded factual allegations in the complaint as true and view the allegations in the light most favorable to the non-moving party. American Waste & Pollution Control Company, Inc. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir.1991). Motions to dismiss for failure to state a claim are viewed with disfavor and rarely granted. Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir.1988).

B. Motion for Summary Judgment

As to those issues on which summary judgment is sought, Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." (Emphasis added.) The non-movant's burden of showing a genuine issue of material fact "is not satisfied with `some metaphysical doubt as to the material facts,' by `conclusory allegations,' or by only a `scintilla' of evidence." Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Further, "factual controversies are resolved 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.

In other words, the inferences drawn from the underlying facts, however, must be viewed in a light most favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986). The substantive law determines materiality of facts, and only facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

In essence, "the inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511.

II. Necessity of Remediation

Henkels & McCoy proposes that remediation is unnecessary because plaintiffs are only seeking to remediate undeveloped ranch land under which the pipeline passes and because the debris on the property consists "almost exclusively" of polyethylene plastic, which was the old pipeline coating. (Henkels & McCoy's memorandum in support, p. 4.) Because this plastic had been in the ground before as coating on the pipeline, Henkels & McCoy maintains that remediation is unnecessary. Further, any new coldtar coating that exists in the pipeline "right-of-way" does not harm the property. Defendant's contentions on this issue are wholly unsubstantiated, either legally or factually through depositions, affidavits or similar discovery devices.

Because of this lack of support, Henkels & McCoy's argument fails because, treating it as a motion to dismiss, plaintiffs' allegations in their amended complaints have to be taken as true. American Waste, supra. Thus, plaintiffs can prove a set of facts consistent with their claims. Jacobs Constructors, supra. Even construing this as a motion for summary judgment, Henkels & McCoy fails to meet the rudimentary requirement under Rule 56 of "identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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, 91 L.Ed.2d 265 (1986). Defendant argues without any support that the polyethylene plastic and coal tar are not harmful and that, as to the plastic, it was on the pipeline for years and therefore not harmful. However, it is readily apparent that the fact that the plastic was attached to the pipeline for years is completely different from plaintiffs' allegations that the plastic remains strewn and/or...