Benjamin M. Eastman v. Coffeyville Res. Ref. & Mktg. LLC
| Decision Date | 19 November 2010 |
| Docket Number | CIVIL ACTION No. 10-1216-MLB-KGG |
| Court | U.S. District Court — District of Kansas |
| Parties | BENJAMIN M. EASTMAN and MARCITA K. EASTMAN, as Trustees of the Eastman Family 1999 Revocable Trust, Plaintiffs, v. COFFEYVILLE RESOURCES REFINING & MARKETING, LLC., Defendant. |
Before the court are the following:
1) Defendant Coffeyville Resources Refining & Marketing LLC.'s motion to dismiss (Doc. 10) and memorandum in support (Doc. 11). Plaintiffs Benjamin and Marcita Eastman's response (Doc. 12) and defendant's reply (Doc 15).
2) Plaintiffs' motion to amend their complaint (Doc. 16) and memorandum in support (Doc. 17). Defendant's response (Doc. 18) and plaintiffs' reply (Doc. 20).
Defendant moves to dismiss plaintiffs' complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). For the reasons stated below, plaintiffs' motion to amend their OPA claim is denied and defendant's motion to dismiss plaintiffs' OPA claim is granted. Defendant's motion to dismiss plaintiffs' continuing nuisance claim is denied.
On June 30, 2007, the Verdigris River flooded in Coffeyville Kansas. The following day, defendant was required to shutdown its refinery because of the flood waters. During the shutdown, defendant accidentally released 80, 000 gallons of crude oil and 9, 000 gallons of crude oil fractions into the flood waters, which spread crude oil throughout areas of Coffeyville and into parts of Oklahoma.
On June 29, 2010, plaintiffs faxed a Notice of Claim to defendant's counsel alleging $50,000 in damages. One day later, on June 30, plaintiffs filed their complaint alleging that defendant's crude oil released into the flood waters on July 1, 2007, created a continuing nuisance on property owned by a trust in which plaintiffs serve as trustees. Plaintiffs also stated that they intended to file an OPA claim after the 90-day presentment period expired.
On October 12, 2010, plaintiffs moved to amend their complaint to add the OPA claim. Plaintiffs alleged that the 90-day period had expired and that defendant did not respond to their OPA claim.
Defendant asserts that the court lacks subject matter jurisdiction because the applicable statute of limitations bars plaintiffs' OPA claim. Defendant also asserts that plaintiffs' nuisance claim is not properly in federal court because the two-year statute of limitations has run and additionally, because plaintiffs' damages are not in excess of $75,000.
Plaintiffs move to amend their complaint to add a claim under the Oil Pollution Act ("OPA"). Defendant responds that plaintiffs have not complied with the 90-day presentment requirement under 33 U.S.C § 2713(a) and (c)(2).
"OPA provides that all claims for damages shall be presented first to the party responsible for the spill." Johnson v. Colonial Pipeline Co., 830 F. Supp. 309, 310 (E.D. Va. 1993). The relevant statute, 33 U.S.C. § 2713, reads in pertinent part:
(a) Presentation
Except as provided in subsection (b) of this section, all claims for removal costs or damages shall be presented first to the responsible party or guarantor of the source designated under section 2714(a) of this title.
the claimant may elect to commence an action in court against the responsible party or guarantor or to present the claim to the Fund.
The presentment requirement is a mandatory condition precedent to bringing an OPA claim. Boca Ciega Hotel, Inc. v. Bouchard Transp Co., Inc., 51 F.3d 235, 240 (11th Cir. 1995). If plaintiffs have failed to comply with the 90-day presentment requirement, then the court lacks subject matter jurisdiction over any claim brought under the OPA. Id.
The court has read reviewed the following cases: Zands v. Nelson, 779 F. Supp. 1254 (S.D. Cal. 1991); Clorox Co. v. Chromium Corp., 158 F.R.D. 120 (N.D. Ill. 1994); Hayes v. Browner, Nos. 98-CV-145-BU 97-CV-1090-BU, 1998 WL 34016834 (N.D. Okla. Oct. 29, 1998); and Forest Guardians v. U.S. Bureau of Reclamation, 462 F. Supp. 2d 1177 (D. N.M. 2006). The facts in Clorox and Zands were that the plaintiffs filed original complaints, which did not include Resource Conservation and Recovery Act ("RCRA") claims. They then sent the defendants their notice of claim letters. After the 60-day presentment period had expired, the plaintiffs amended their complaints to include claims under the RCRA. The courts in Clorox and Zands found that the plaintiffs had complied with the 60-day presentment period.
Forest Guardians was brought under the Endangered Species Act which provides that in actions brought by private citizens, the plaintiffs must provide the Secretary with a "Notice of Intent" (NOI) 60 days before filing suit. 16 U.S.C. § 1540(g)(2)(A). Plaintiffs sued without complying with § 1540(g)(2)(A) and defendant moved to dismiss. Plaintiffs then sent the NOI and 60 days later filed a Fed R. Civ. P. 15(d) motion to supplement their complaint. The court, after noting that many of the claims in the proposed supplemental complaint were identical to those in the original complaint, refused to grant the motion. In other words, the combination of plaintiffs' inclusion of an ESA claim in their original complaint coupled with their failure to provide an NOI was a fatal, incurable defect.
This case is more like Clorox and Zands. Plaintiffs faxed defendant their notice of claim on June 29, 2010, and on the following day filed their complaint alleging only a continuing nuisance claim. Defendant claims that plaintiffs did not wait until the 90 days had passed before filing their complaint. This is true; however, plaintiffs' original complaint did not include an OPA claim. Plaintiffs merely stated that they intended to file an OPA claim after the 90-day period expired.
Defendants argue that plaintiffs did not present their OPA claim in a non-adversarial manner because the original complaint created an adversarial relationship between the parties. This argument was unsuccessful in Clorox. 158 F.R.D. at 126. In Clorox, the court stated that "[t]he Hallstrom opinion does not stand for the proposition that subsection (b)(2)(A) requires an absolute non-adversarial period, precluding one from filing a complaint upon a theory other than the RCRA." Id. (citing Hallstrom v. Tillamook County, 493 U.S. 20 (1989)).
The Tenth Circuit has held that notice should be given when there is a non-adversarial relationship between the parties. See New Mexico Citizens for Clean Air and Water v. Espanola Mercantile Co., Inc., 72 F.3d 830, 833 (10th Cir. 1996) ( that "the purpose of pre-suit notice is to allow the parties time to 'resolve their conflicts in a nonadversarial time period[ ]'"). However, that case is factually distinguishable. In New Mexico Citizens, two plaintiffs sued under the Clean Water Act but only one gave the pre-suit notice. Then a settlement was reached by all parties. The district court awarded attorneys' fees to both plaintiffs but the Circuit reversed the award as to the non-noticing plaintiff, finding that it was "not a proper party to the action." Id. Although the court recognized the purpose of the "non-adversarial period," it did not address the factual situation in this case nor did it hold that there must be an absolute non-adversarial period.
Here, the adversarial relationship between the parties during the 90-day period was not related to plaintiffs' OPA claim. See Hayes, 1998 WL 34016834 at 6 (). The fact that plaintiffs announced an intent to file an OPA claim, in and of itself, does not state an OPA claim.
The court finds that plaintiffs properly presented their OPA claim to defendants and waited 90 days before moving to amend their complaint to add the OPA claim. Defendants were fully aware of plaintiffs' position and damages regarding their OPA claim 90 days before it was before the court. Defendants could have negotiated and settled with plaintiffs on their OPA claim in a non-adversarial manner but chose not to, perhaps because of the statute of limitations.
Defendants also claim that plaintiffs should not be permitted to amend their complaint to add the OPA claim because the three-year statute of limitations has run. Plaintiffs respond that the amendment to their complaint relates back to the original date of filing of their complaint.
An action under the OPA is barred if it is not brought within three years after "the date on which the loss and the connection of the loss with the discharge in question are reasonably discoverable with the exercise of due care...." 33 U.S.C. § 2717(f)(1)(A). On July 1, 2007, plaintiffs allege that defendant's crude oil was released into the flood waters. Plaintiffs filed their complaint on June 30, 2010, just within the three-year mark, but the complaint did not assert an OPA claim.
Federal Rule of Civil Procedure 15(c)(1) provides, in part:
An amendment to a pleading relates back to the date of the original pleading when:
* * *
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading...
The original complaint must give defendant fair notice of the factual situation in which the suit arises from. Spillman v. Carter, 918 F Supp. 336, 340 (D. Kan. 1996).
The...
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