Fletcher v. Conoco Pipe Line Co.

• Decision Date: 16 January 2001
• Docket Number: No. 00-3100-CV-S-1.,00-3100-CV-S-1.
• Citation: 129 F.Supp.2d 1255
• Parties: Dallas FLETCHER, et al., Plaintiffs, v. CONOCO PIPE LINE COMPANY, Defendant.
• Court: U.S. District Court — Western District of Missouri

129 F.Supp.2d 1255

Dallas FLETCHER, et al., Plaintiffs, v. CONOCO PIPE LINE COMPANY, Defendant.

No. 00-3100-CV-S-1.

United States District Court, W.D. Missouri, Southern Division.

January 16, 2001.

COPYRIGHT MATERIAL OMITTED

Craig R. Heidemann, Douglas, Lynch, Haun & Kirksey, Bolivar, MO, for plaintiff.

Christopher S. Jones, Thompson Coburn, St. Louis, MO, for defendants.

ORDER

WHIPPLE, District Judge.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Conoco Pipe Line Company ("Defendant") moves the Court to dismiss Counts IV, V, VI, VII, VIII, XIV, XV, XVI, XVIII, XIX, XXI, and XXII of Plaintiff Dallas Fletcher, Katherine Fletcher, Clyde Kent and Dorothy Kent's ("Plaintiffs") Third Amended Complaint. Alternatively, Defendant moves the Court to strike Counts VII, VIII, XIX, and XXII as duplicative pursuant to Federal Rule of Civil Procedure 12(f). Plaintiffs filed Suggestions in Opposition to Defendant's Motion to Dismiss and Defendant filed a Reply, addressing Plaintiffs' arguments. Having carefully considered the parties' arguments, the Court holds that Defendant's 12(b)(6) Motion to Dismiss is GRANTED IN PART and DENIED IN PART. In addition, the Court GRANTS Defendant's Motion to Strike Counts VII, VIII, XIX and XXII pursuant to Federal Rule of Civil Procedure 12(f).

I. STANDARD OF REVIEW

A. Motion to Dismiss — Federal Rule of Civil Procedure 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure governs Defendant's motion to dismiss. The Court will not consider any matters outside the pleadings. To succeed on its motion, Defendant must establish that Plaintiffs can prove no set of facts in support of their claims that would entitle them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); May v. Commissioner of Internal Revenue, 752 F.2d 1301, 1303 (8th Cir.1985). The Court must assume that the allegations in Plaintiffs' Complaint are true, and further, must construe those allegations in their favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); May, 752 F.2d at 1303. The issue is not whether Plaintiffs will ultimately prevail on their claims, but rather whether they are entitled to offer evidence in support of their claims. See Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686.

B. Motion to Strike — Federal Rule of Civil Procedure 12(f)

Rule 12(f) of the Federal Rules of Civil Procedure provides for a motion to strike as follows:

(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Fed.R.Civ.P. 12(f). Courts have considered various factors to determine whether claims are redundant. See Velez v. City of New London, 903 F.Supp. 286, 291 (D.Conn.1995) (finding that a respondeat superior claim was redundant where the plaintiff had recourse against the defendant for his tort claims via state indemnification statutes); Sudul v. Computer Outsourcing Servs., 868 F.Supp. 59, 61 (S.D.N.Y.1994) (holding that a claim was redundant within the meaning of Rule 12(f) where it essentially duplicated another claim involving the same promisor, the same acts of breach, and the same measure of damages); Dethmers Mfg. Co., Inc. v. Automatic Equip. Mfg. Co., 23 F.Supp.2d 974, 1009 (N.D.Iowa 1998) (concluding that a claim that merely recasts the same elements under the guise of a different theory may be stricken as redundant pursuant to Rule 12(f)); but see Fink v. DeClassis, 745 F.Supp. 509, 515 (N.D.Ill. 1990) (stating that a claim of breach of warranty was not redundant of a claim of breach of contract, even though the claims sought essentially the same relief and plaintiff could not obtain duplicative recovery, because the plaintiff was entitled to assert alternative theories and could not be forced to elect one remedy over another in the absence of prejudice to the defendant).

II. FACTUAL BACKGROUND¹

Defendant owns and operates underground pipelines that transport oil, crude petroleum, and petroleum products. In the 1930's, Defendant's predecessor in interest, the Ajax Pipeline Company ("Ajax"), obtained what the Plaintiffs characterize as "pipeline permits" from the former owners of Plaintiffs' properties. The "pipeline permits" granted Ajax a right of way to lay, construct, maintain, operate, alter, repair, remove, change the size of, and replace two lines of pipe for the transportation of oil, crude petroleum and petroleum products. The pipelines at issue begin near Ponca City, Oklahoma, run across, on or near the Plaintiffs' properties, and terminate in Wood River, Illinois.

Defendant's pipelines have cathodic protection as mandated by federal regulations that require protection of all underground steel pipes. See 49 C.F.R. § 195.242. Cathodic protection entails passing a low-voltage electrical current along the metal pipeline to protect against corrosion. Plaintiffs assert that the electricity designed to provide cathodic protection has escaped from the pipeline, traveling up to and beyond a distance of thirty feet, and thereby exceeding the scope of the "pipeline permits." The essence of Plaintiffs' claim is that this "stray electricity" is traveling onto and contaminating their land. According to Plaintiffs, representatives of Defendant have made inspections and done testing on the pipeline that should have caused them to conclude that this "stray electricity" was escaping, yet they allegedly failed to prevent the escapage or warn Plaintiffs of possible danger. Plaintiffs assert that the stray voltage contamination has caused them to suffer personal injury, loss of consortium, loss of enjoyment of life, lost profits, and property damage. In particular, Plaintiffs describe how the "stray electricity" has negatively affected livestock, made their electric bill erratic, shortened the life expectancy of motors, appliances, and light bulbs, and accelerated the corrosion of metal structures, such as well casings and fence posts. Plaintiffs seek to impose liability on Defendant for this "stray electricity" pursuant to a number of theories, including, inter alia, nuisance, negligence, strict liability, breach of contract, trespass, loss of consortium, nuisance, inverse condemnation, and ejectment.

III. DISCUSSION

A. Counts IV & XIV Strict Liability

Defendant argues that Plaintiffs' strict liability claims must fail because neither the operation of the pipeline nor the use of cathodic protection are abnormally dangerous activities that warrant the imposition of strict liability. Plaintiffs disagree and assert that the operation of petroleum pipelines charged with electricity is an abnormally dangerous activity that has the potential to cause widespread death and destruction. Missouri courts have not addressed the issue of whether strict liability applies to the operation of cathodically-protected petroleum pipelines. The Court concludes that the doctrine of strict liability does not apply because neither the operation of a petroleum pipeline nor the use of cathodic protection are abnormally dangerous activities, as a matter of law.

The doctrine of strict liability arose from an English case, Rylands v. Fletcher, 1 L.R.-Ex. 265 (Ex. Ch. 1866), aff'd, 3 L.R.-E & I.App. 330 (H.L.1868). Rylands established the premise that if a person brings something on his land which, if it escapes, is likely to do great damage, that person is prima facie liable for all the harm naturally occurring if there is an escape. See id. at 279. This theory of strict liability, as it was first articulated in Rylands, has been very narrowly applied by Missouri courts. See Bennett v. Mallinckrodt, Inc., 698 S.W.2d 854, 868 (Mo. App.1985) (noting how Missouri courts have historically rejected claims based upon strict liability and required plaintiffs to bring negligence, nuisance or trespass actions instead). Missouri law dictates that a person is strictly liable "when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings." Clay v. Missouri Highway and Transp. Comm'n, 951 S.W.2d 617, 623 (Mo.App.1997) (citations omitted). While Missouri courts are generally reluctant to extend the use of strict liability as a theory for relief, activities such as blasting and nuclear operations have been deemed sufficiently dangerous to warrant the imposition of strict liability. See Donnell v. Vigus Quarries, Inc., 526 S.W.2d 314, 316 (Mo.Ct.App.1975) (holding that the theory of strict liability applies to blasting); Bennett, 698 S.W.2d at 867 (stating that strict liability should apply to claims based on radiation damage because use of nuclear material is uncommon and poses great danger).

The Restatement (Second) of Torts similarly embraces a narrow application of Rylands. See Clay, 951 S.W.2d at 623 (citing Bennett, 698 S.W.2d at 867). According to the Restatement, strict liability dictates that "[o]ne who carries on abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." Restatement (Second) of Torts § 519(1). In ascertaining whether an activity should be deemed "abnormally dangerous," the Restatement directs courts to assess the following factors:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by exercise of reasonable care;

(d) extent to which the activity is not a matter of...