Comer v. Murphy Oil USA, Inc., Cause No. 1:11CV220–LG–RHW.

CourtUnited States District Courts. 5th Circuit. Southern District of Mississippi
Writing for the CourtLOUIS GUIROLA
Citation839 F.Supp.2d 849
PartiesNed COMER, et al., Plaintiffs v. MURPHY OIL USA, INC., et al., Defendants.
Docket NumberCause No. 1:11CV220–LG–RHW.
Decision Date20 March 2012

839 F.Supp.2d 849

Ned COMER, et al., Plaintiffs
v.
MURPHY OIL USA, INC., et al., Defendants.

Cause No. 1:11CV220–LG–RHW.

United States District Court,
S.D. Mississippi,
Southern Division.

March 20, 2012.


[839 F.Supp.2d 851]


F. Gerald Maples, F. Gerald Maples, PA, New Orleans, LA, for Plaintiffs.

Jonathan P. Dyal, Balch & Bingham, LLP, Richard P. Salloum, Shellye V. McDonald, Franke & Salloum, PLLC, Gulfport, MS, Kerry J. Miller, Frilot, LLC, New Orleans, LA, for Defendants.


MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

LOUIS GUIROLA, JR., Chief Judge.

BEFORE THE COURT are the Motion [100] to Dismiss filed by Hess Corporation, the Motion [207] to Dismiss Amended Complaint filed by Certain Defendants,1

[839 F.Supp.2d 852]

the Motion [208] to Dismiss filed by the Coal Company Defendants,2 and the Motion [217] to Dismiss filed by Total Petrochemicals USA, Inc., and Total Gas & Power North America, Inc. The plaintiffs have filed a Memorandum in Opposition [285] to these Motions, and the defendants have filed Replies [286, 287, 289]. Upon reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that the defendants' Motions to Dismiss should be granted.

BACKGROUND

On September 20, 2005, Ned Comer, Brenda Comer, and Joseph Cox,3 individually and on behalf of all persons similarly situated, filed a lawsuit in this Court against a group of insurance companies and a group of oil companies. (Compl., No. 1:05cv436, ECF No. 1). The case was assigned cause number 1:05cv436–LG–RHW. The plaintiffs alleged that the oil company defendants released by-products that led to the development and increase of global warming, which produced the conditions that formed Hurricane Katrina, which damaged their property. ( Id. at 9–12). The plaintiffs alleged that the insurers wrongfully denied insurance coverage for damages that the proposed class of plaintiffs suffered during Hurricane Katrina. ( Id. at 1–9).

The plaintiffs filed a First Amended Complaint that added the following plaintiffs as parties: Eric Haygood, Brenda Haygood, Larry Hunter, Sandra L. Hunter, Mitchell Kisielewski, and Johanna Kisielewski.4 (1st Am. Compl., No. 1:05cv436, ECF No. 3). The First Amended Complaint also named several mortgage companies as defendants, claiming that they waived their right to collect mortgage payments by failing to obtain sufficient insurance to protect mortgaged property that was damaged by Hurricane Katrina. (1st Am. Com pl. 14–16, No. 1:05cv436, ECF No. 3). The Court dismissed the plaintiffs' claims against the insurers and mortgage companies, but permitted the plaintiffs' claims against the oil company defendants to proceed. (Order, No. 1:05cv436, ECF No. 74).

The plaintiffs filed a Third Amended Complaint 5 that added the following plaintiffs: Joseph Williams, Cynthia Williams, Elliott Roumain, Rosemary Roumain, Judy Olson, and David Lain. (3d Am. Compl., 1:05cv436, ECF No. 79). The plaintiffs also added claims against several electric companies, chemical manufacturers, and coal companies. ( Id.) The Third Amended Complaint asserted the following claims related to the plaintiffs' contention that the defendants' greenhouse gas emissions caused the damages they suffered during Hurricane Katrina: unjust enrichment,

[839 F.Supp.2d 853]

civil conspiracy and aiding and abetting, public and private nuisance, trespass, negligence, and fraudulent misrepresentation and concealment. ( Id.) The defendants filed several motions seeking dismissal of the plaintiffs' claims, and the plaintiffs filed a Motion for Leave to File a Fourth Amended Complaint that sought to add numerous additional defendants. (Defs.' Mots., No. 1:05cv436, ECF Nos. 90, 129, 133, 146, 186, 255, 283, 288, 296, 348; Pls.' Mot. to Am. Compl., No. 1:05 cv436, ECF No. 304).

On August 30, 2007, this Court conducted a hearing concerning the Coal Companies' Motion to Dismiss [146]. The Court held that the plaintiffs did not have standing to bring the lawsuit, because their injuries were not fairly traceable to the actions of the defendants. (Order, No. 1:05cv436, ECF No. 368). The Court also held that the plaintiffs' claims were non-justiciable pursuant to the political question doctrine. ( Id.) Because the Court found that it did not have jurisdiction to hear any of the plaintiffs' claims, the plaintiffs' Motion for permission to file a fourth amended complaint and all other pending motions were rendered moot. (Tr. 41–42, ECF No. 207–8). A Judgment was entered dismissing the plaintiffs' claims. (J., No. 1:05cv436, ECF No. 369). The plaintiffs appealed this Court's Judgment. (Notice of Appeal, No. 1:05cv436, ECF No. 370).

On October 16, 2009, a Fifth Circuit panel of three judges reversed in part this Court's decision with regard to the plaintiffs' state claims of public and private nuisance, trespass, and negligence. Comer v. Murphy Oil USA, 585 F.3d 855, 880 (5th Cir.2009). However, the Fifth Circuit panel agreed that the plaintiffs' unjust enrichment, civil conspiracy, and fraudulent misrepresentation claims should be dismissed for lack of standing. Id. at 879–80. The defendants filed a petition for rehearing en banc. Several of the Fifth Circuit Court of Appeals judges were disqualified from participating in the case, but a rehearing en banc was granted by a majority of the remaining nine judges on February 26, 2010. Comer v. Murphy Oil USA, 598 F.3d 208, 210 n. 1 (5th Cir.2010). After the rehearing en banc had been granted, “new circumstances arose that caused the disqualification and recusal” of another appeals court judge. This resulted in the loss of a quorum before the en banc panel of the Fifth Circuit Court of Appeals. Comer v. Murphy Oil USA, 607 F.3d 1049, 1053–54 (5th Cir.2010). The Fifth Circuit held that it was not authorized to transact judicial business in the absence of a quorum. Id. at 1054. Therefore, it directed the Clerk to dismiss the plaintiffs' appeal. Id. at 1055. The Fifth Circuit also explained that the panel opinion was lawfully vacated before the Court lost its quorum, and due to the subsequent loss of the quorum, it could not reinstate the panel opinion. Id. Since the panel opinion was vacated, there was no Fifth Circuit opinion or judgment upon which a mandate could issue. Id. The Court noted, however, that the parties had the right to petition the Supreme Court of the United States. Id.

The plaintiffs chose not to file a petition for a writ of certiorari as to the merits of their appeal, but they filed a petition for a writ of mandamus asking the Supreme Court to order the Fifth Circuit to reinstate their appeal. (Defs.' Mot., Ex. 25, ECF No. 207–25). The Supreme Court denied the plaintiffs' petition on January 10, 2011. In re Ned Comer, ––– U.S. ––––, 131 S.Ct. 902, 178 L.Ed.2d 807 (2011).

FACTS AND PROCEDURAL HISTORY

On May 27, 2011, Ned Comer, Brenda Comer, Eric Haygood, Brenda Haygood, Larry Hunter, Sandra L. Hunter, Mitchell

[839 F.Supp.2d 854]

Kisielewski, Johanna Kisielewski, Rosemary Romain,6 Judy Olson, and David Lain, individually and on behalf of all other persons similarly situated, filed the present lawsuit against numerous oil companies, coal companies, electric companies, and chemical companies. (Compl., ECF No. 1).7 The plaintiffs filed an Amended Complaint on August 2, 2011, asserting public and private nuisance, trespass, and negligence claims against the defendants. (Am. Compl. 13, 17, ECF No. 28). They also seek a declaratory judgment that their state law tort claims arising from the defendants' emissions are not preempted by federal law, and they request class designation. ( Id. at 20–21).

In support of their nuisance claims, which are filed pursuant to both federal and state common law, the plaintiffs allege that the defendants' activities are among the largest sources of greenhouse gases that cause global warming. ( Id. at 10, 13). The plaintiffs claim that global warming led to high sea surface temperatures and sea level rise that fueled Hurricane Katrina, which damaged the plaintiffs' property. ( Id. at 13–14). They allege that global warming has caused them to incur higher insurance premiums and has lowered the resale value of their homes due to the increased risk of tropical storm activity, wind damage, and flood damage. ( Id. at 15). Furthermore, the plaintiffs claim that the defendants' emissions constitute an unreasonable invasion of the plaintiffs' property rights. ( Id.) Because they live in low-lying coastal areas on or near the Gulf of Mexico, the plaintiffs claim that they have suffered more severe injuries that the general public. ( Id. at 16). In addition, the plaintiffs claim that the sea level rise causes saltwater intrusion, loss of habitat for hunting and fishing, and the submersion of public and private property. ( Id. at 16). All of these effects of global warming, according to the plaintiffs, have resulted in the loss of the use and quiet enjoyment of their property. ( Id.)

In support of their trespass claim, the plaintiffs argue that the defendants' emissions have caused saltwater, debris, sediments, hazardous substances, and other materials to enter and damage their property. ( Id. at 17). In support of their negligence claim, the plaintiffs state that the defendants have a duty to conduct their business in a way that does not unreasonably endanger the environment, public health, and public and private property. ( Id.) The plaintiffs allege that the defendants' emissions constitute a breach of that duty. ( Id. at 18). The plaintiffs also contend that the defendants should be held strictly liable for the injuries that result from their emissions. ( Id.) The plaintiffs state:

In the alternative, if Defendants' activity did not directly cause the increase in sea surface temperatures which fueled Hurricane Katrina, their actions nevertheless have increased and will continue to increase the risk of more intense tropical cyclones and other...

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25 practice notes
  • Fresh Air for the Eastside, Inc. v. Waste Mgmt. of N.Y., L.L.C., 6:18-CV-06588-EAW
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • September 16, 2019
    ...at 198 ; see D'Amico , 2019 WL 1332575, at *17. This Court also determined that WMNY's reliance upon Comer v. Murphy Oil USA, Inc. , 839 F. Supp. 2d 849 (S.D. Miss. 2012), aff'd , 718 F.3d 460 (5th Cir. 2013) was misplaced because that case involved litigation seeking to apply common law re......
  • Little v. Louisville Gas & Elec. Co., Civil Action No. 3:13–CV–01214–JHM.
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    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • July 17, 2014
    ...Corp., 696 F.3d 849 (9th Cir.2012) (CAA displaced a federal common-law claim for public nuisance); Comer v. Murphy Oil USA, Inc., 839 F.Supp.2d 849, 865 (S.D.Miss.2012) (CAA preempted state-law nuisance, trespass, and negligence claims); United States v. EME Homer City Generation L.P., 823 ......
  • Little v. Louisville Gas & Elec. Co., Civil Action No. 3:13–CV–01214–JHM.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • July 16, 2014
    ...Corp., 696 F.3d 849 (9th Cir.2012) (CAA displaced a federal common-law claim for public nuisance); Comer v. Murphy Oil USA, Inc., 839 F.Supp.2d 849, 865 (S.D.Miss.2012) (CAA preempted state-law nuisance, trespass, and negligence claims); United States v. EME Homer City Generation L.P., 823 ......
  • Freeman v. Grain Processing Corp., No. 13–0723.
    • United States
    • United States State Supreme Court of Iowa
    • June 13, 2014
    ...negligence, trespass, and strict liability claims), rev'd734 F.3d 188, 190 (3d Cir.2013); 2Comer v. Murphy Oil USA, Inc. (Comer I), 839 F.Supp.2d 849, 865 (S.D.Miss.2012) (extending the reasoning of AEP to state law claims after characterizing them as turning on the reasonableness of emissi......
  • Request a trial to view additional results
18 cases
  • Fresh Air for the Eastside, Inc. v. Waste Mgmt. of N.Y., L.L.C., 6:18-CV-06588-EAW
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • September 16, 2019
    ...at 198 ; see D'Amico , 2019 WL 1332575, at *17. This Court also determined that WMNY's reliance upon Comer v. Murphy Oil USA, Inc. , 839 F. Supp. 2d 849 (S.D. Miss. 2012), aff'd , 718 F.3d 460 (5th Cir. 2013) was misplaced because that case involved litigation seeking to apply common law re......
  • Little v. Louisville Gas & Elec. Co., Civil Action No. 3:13–CV–01214–JHM.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • July 17, 2014
    ...Corp., 696 F.3d 849 (9th Cir.2012) (CAA displaced a federal common-law claim for public nuisance); Comer v. Murphy Oil USA, Inc., 839 F.Supp.2d 849, 865 (S.D.Miss.2012) (CAA preempted state-law nuisance, trespass, and negligence claims); United States v. EME Homer City Generation L.P., 823 ......
  • Little v. Louisville Gas & Elec. Co., Civil Action No. 3:13–CV–01214–JHM.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • July 16, 2014
    ...Corp., 696 F.3d 849 (9th Cir.2012) (CAA displaced a federal common-law claim for public nuisance); Comer v. Murphy Oil USA, Inc., 839 F.Supp.2d 849, 865 (S.D.Miss.2012) (CAA preempted state-law nuisance, trespass, and negligence claims); United States v. EME Homer City Generation L.P., 823 ......
  • Freeman v. Grain Processing Corp., No. 13–0723.
    • United States
    • United States State Supreme Court of Iowa
    • June 13, 2014
    ...negligence, trespass, and strict liability claims), rev'd734 F.3d 188, 190 (3d Cir.2013); 2Comer v. Murphy Oil USA, Inc. (Comer I), 839 F.Supp.2d 849, 865 (S.D.Miss.2012) (extending the reasoning of AEP to state law claims after characterizing them as turning on the reasonableness of emissi......
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7 books & journal articles
  • Black Carbon
    • United States
    • Legal pathways to deep decarbonization in the United States Part VIII - Non-Carbon Dioxide Climate Pollutants
    • March 24, 2019
    ...that were transported across state lines and subject to the CAA’s cross-state emissions rules); Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 865 (S.D. Miss. 2012) (the CAA preempted state-law Page 874 Legal Pathways to Deep Decarbonization in the United States deposition of harmful p......
  • Using Issue Certification Against a Defendant Class to Establish Causation in Climate Change Litigtion
    • United States
    • Environmental Law Reporter Nbr. 52-4, April 2022
    • April 1, 2022
    ...of the district court—which had dismissed the plain-tifs’ claims for lack of standing—by default). 32. Comer v. Murphy Oil USA, 839 F. Supp. 2d 849, 42 ELR 20067 (S.D. Miss. 2012). he district court’s preemption analysis took all of three paragraphs to unilaterally extend the Supreme Court’......
  • Air Pollution as Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement with Nineteenth-Century Smoke Abatement.
    • United States
    • Michigan Law Review Vol. 120 Nbr. 7, May 2022
    • May 1, 2022
    ...823 F. Supp. 2d 274 (W.D. Pa. 2011)(holding that the CAA preempted a state public nuisance claim); Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012)(holding that the CAA preempted a state public nuisance claim against fossil fuel (69.) See Snowden, supra note 68, at 18; M......
  • Litigating Climate Change in National Courts: Recent Trends and Developments in Global Climate Law
    • United States
    • Environmental Law Reporter Nbr. 47-2, February 2017
    • February 1, 2017
    ...to issue a mandamus order, and the plaintifs’ action was dismissed when they attempted to reile. Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 855, 42 ELR 20067 (S.D. Miss. 2012), af’d , 718 F.3d 460, 43 ELR 20109 (5th Cir. 2013). 110. Native Vill. of Kivalina v. ExxonMobil Corp., 663......
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