La. Envtl. Action Network & Stephanie Anthony v. Exxon Mobil Corp., CIVIL ACTION 16-144-SDD-RLB
| Decision Date | 17 December 2018 |
| Docket Number | CIVIL ACTION 16-144-SDD-RLB |
| Parties | LOUISIANA ENVIRONMENTAL ACTION NETWORK AND STEPHANIE ANTHONY v. EXXON MOBIL CORP. d/b/a EXXONMOBIL CHEMICAL CO. |
| Court | U.S. District Court — Middle District of Louisiana |
This matter is before the Court on the Motion for Summary Judgment on the Unpleaded Affirmative Defense of "Upset"1 filed by Plaintiffs, Louisiana Environmental Action Network ("LEAN") and Stephanie Anthony ("Anthony") or ("collectively LEAN"). Defendant Exxon Mobil Corp. d/b/a ExxonMobil Chemical Co. ("Defendant" or "EMC") has filed an Opposition2 to the motion, to which Plaintiffs filed a Reply.3 For the following reasons, Plaintiffs' motion shall be DENIED.
The factual background in this matter has been set forth in the Court's previous Ruling4 and will not be repeated here. In short, LEAN brings this citizens suit under the Clean Air Act (CAA)5 LEAN claims that EMC violated the Clean Air Act (CAA) 142 timesby violating operating permits issued by the Louisiana Department of Environmental Quality ("LDEQ") pursuant to Title V of the CAA and Louisiana's Part 70 permitting program.
As one defense to liability, EMC has asserted the affirmative defense of "upset." As a general rule, the Federal Rules of Civil Procedure require a defendant to plead any affirmative defenses it may have.6 LEAN argues that EMC waived its affirmative defense of upset by failing to assert the defense in its Answer or file an amended answer to include it.7 LEAN further contends that EMC explicitly waived the defense in its Reponses to Interrogatory Number 10, wherein EMC stated that the defense of upset was "beyond the scope of permissible discovery."8 Thus, LEAN—up to the deadline to compel discovery—was unable to further compel discovery.9 LEAN claims that allowing the affirmative defense "would prejudice LEAN, which would have to guess as to what legal theory, witnesses, and documentary evidence [EMC] plans to use to support this defense."10 The Parties dispute when LEAN obtained notice of EMC's intent to assert this affirmative defense: LEAN claims it received notice of the affirmative defense on December 22, 2017; EMC claims LEAN obtained notice no later than December 19, 2016.
Not only does LEAN dispute the timeliness of EMC's assertion of this affirmative defense, but LEAN also challenges the availability of the defense in a federal lawsuit. Specifically, LEAN contends that the affirmative defense in La. Admin. Code Pt. III §507(J) cannot be used in federal court since it is not part of Louisiana's state implementation plan (SIP).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."11 "When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence."12 A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case."13 If the moving party satisfies its burden, "the non-moving party must show that summary judgment is inappropriate by setting 'forth specific facts showing the existence of a genuine issue concerning every essential component of its case.'"14 However, the non-moving party's burden "is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence."15
Notably, "[a] genuine issue of material fact exists, 'if the evidence is such that areasonable jury could return a verdict for the nonmoving party.'"16 All reasonable factual inferences are drawn in favor of the nonmoving party.17 However, 18 "Conclusory allegations unsupported by specific facts ... will not prevent the award of summary judgment; 'the plaintiff [can]not rest on his allegations ... to get to a jury without any "significant probative evidence tending to support the complaint."'"19
The Federal Rules of Civil Procedure require a party responding to a pleading to "affirmatively state any avoidance or affirmative defense...."20 Under the Louisiana Administrative Code and the Clean Air Act, the defense of upset is an affirmative defense.21 However, EMC did not raise the defense of upset in its initial Answer.22
Generally, a party's failure to raise affirmative defenses in its answer constitutes a waiver of those defenses.23 This addresses the concern that "[a] defendant should not be permitted to 'lie behind a log' and ambush a plaintiff with an unexpected defense."24The primary purpose, then, is to provide fair notice to the opposing party such that they are not unfairly surprised.25 However, the technical failure to assert an affirmative defense is not alone dispositive within the Fifth Circuit: "where [an affirmative defense] is raised in the trial court in a manner that does not result in unfair surprise, [...] technical failure to comply with Rule 8(c) is not fatal."26 Instead, the responding party waives an affirmative defense only if (1) the defendant fails to raise the affirmative defense "at a pragmatically sufficient time," or (2) the plaintiff is "prejudiced in its ability to respond."27
There is no set time to determine when asserting an unpleaded affirmative defense is de facto raised at a pragmatically sufficient time. This determination depends on the context of the litigation as a whole.28 For example, in Pasco v. Knoblauch and Turner v. Cain—both cases involving a similar issue of unpleaded affirmative defenses—both the Eastern District of Louisiana and the Fifth Circuit held that raising the defense more than four years after the commencement of litigation does not, by itself, constitute a pragmatically insufficient time.29 In Kemp v. CTL Distribution, Inc.,30 this Court held that raising an affirmative defense seven years after the litigation's commencement was not a pragmatically sufficient time when the failure to raise the defense earlier had subjected the plaintiff to years of protracted litigation.31 In Kemp, a great deal of litigation could havebeen avoided if the defense had "been timely pled and accepted."32 Instead, the plaintiff was subjected to years of unnecessary litigation, and the Court found that this circumstance rendered the failure to raise the defense more than a mere technical failure.33 Thus, the amount of time between litigation's commencement and raising the affirmative defense is not alone dispositive.
A plaintiff's ability to mount an effective defense is also not dispositive. In Kemp, the Court noted that the plaintiffs had a sufficient amount of time to prepare a defense to the unpleaded affirmative defense such that the plaintiffs "cannot be said to have been prejudiced in their ability to respond."34 The Court nonetheless found the defense to be waived because it was not raised at a pragmatically sufficient time, and the plaintiffs were prejudiced by protracted and unnecessary litigation "because of its tardy entrance."35
Turning to the present case, LEAN contends it was not given notice of EMC's intent to raise the affirmative defense of upset until December 22, 2017, when it was argued in EMC's Opposition to LEAN's Motion for Summary Judgment on Liability.36 In contrast, EMC claims that LEAN has been on notice of this defense since, at the very latest, December 19, 2016,37 when EMC responded to LEAN's interrogatories that specifically requested EMC's response to issues of upset.38 As noted above, time alone is not dispositive as to the waiver of an affirmative defense. It is relevant, however, as the issue of prejudice alleged by LEAN is the close of expert discovery in September 2017. LEAN'stimeframe places the affirmative defense more than 21 months after the commencement of suit while EMC's is under ten months;39 notably, LEAN's timeframe places notice of the defense subsequent to the close of expert discovery whereas EMC's timeframe assigns notice before the close of discovery.
LEAN argues it would have to guess as to the theory, facts, evidence related to an upset defense; thus, it has not been raised at a pragmatically sufficient time. Further, LEAN contends the timing is insufficient because it is too late for LEAN to obtain an expert witness on the issue of upset. Conversely, EMC contends the defense was raised in a pragmatically sufficient time, even accepting LEAN's timeline of notice on December 2017, because LEAN had ample opportunity to respond to the defense, and LEAN did, in fact, file three briefs on the defense.40 However, as noted above, "ample opportunity to respond" does not, by itself, resolve the issue; rather, timing must be considered in light of the prejudice imposed.
Addressing LEAN's concern regarding its ability to hire an expert prior to trial, the Court must consider whether LEAN had notice of EMC's intent to use the upset defense prior to the close of expert discovery (September 22, 2017). EMC claims, with good authority, that LEAN was on notice of this defense since 2016.41 Nonetheless, even accepting LEAN's timeframe, the Court finds that LEAN still had sufficient notice of the defense to adequately prepare for trial.
LEAN's, second set of discovery, Interrogatory number 10 asked:
INTERROGATORY NO. 10: To the extent [EMC] claims that any unauthorized release of air pollutants at the Baton Rouge Chemical Plantwas not preventable, please explain why each such release was not preventable.42
EMC answered LEAN's second set of discovery on December 19, 2016, responding as follows:
...To continue reading
Request your trial