Maxedon v. Texaco Producing, Inc.

• Decision Date: 20 April 1989
• Docket Number: No. 86-1869-C.,86-1869-C.
• Citation: 710 F. Supp. 1306
• Parties: Robert MAXEDON, et al., Plaintiffs, v. TEXACO PRODUCING, INC., Defendant.
• Court: U.S. District Court — District of Kansas

710 F. Supp. 1306

Robert MAXEDON, et al., Plaintiffs, v. TEXACO PRODUCING, INC., Defendant.

No. 86-1869-C.

United States District Court, D. Kansas.

March 31, 1989.

Opinion On Damages April 20, 1989.

John V. Black, Black & Mills, Pratt, Kan., Robert J. Roth, Michael L. Jones, Hershberger, Patterson, Jones & Roth, Wichita, Kan., for plaintiffs.

Tim Mustaine, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

This case comes before the court on defendant's motion for partial summary judgment on: (1) plaintiffs' request for injunctive relief, ordering defendant to clean up polluted water and soil on plaintiff's land, or, in the alternative, equivalent money damages to effectuate clean up; (2) plaintiffs' claim for aggravation and harassment; (3) plaintiff's claim for punitive damages; and (4) the claims raised by plaintiffs in Counts II, V, VII, VIII, IX, XI, XII of their "amended-supplemental petition", and in that part of Count XIII that involves damages to area 19, on the ground that these claims are barred by the statute of limitations.

The court notes that plaintiffs have failed to comply with Fed.R.Civ.P. 56(e) and D.Kan. Rules 206(c) in responding to defendant's motion for partial summary judgment. Rule 56(e) specifically states that the plaintiffs in this case, as the nonmoving party, may not rest upon mere allegations or denials in their pleading but must respond to defendant's motion with the types of evidentiary materials contemplated under the rule which set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The plaintiffs only provide the court with a three-page excerpt from a deposition of, the court presumes, Robert Maxedon, although even this is not clear, as the transcript does not have a face page or signature page attached. Other than this deposition excerpt, the plaintiffs rely on bald assertions and denials to respond to defendant's motion. The plaintiffs also cite Kansas case law concerning summary judgment standards. Summary judgment is a rule of civil procedure and is governed by the Federal Rules of Civil Procedure and federal case law interpreting that rule. See Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

"Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1" (citation omitted.) Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512. There is no genuine issue for trial unless there is sufficient evidence—significantly probative or more than merely colorable —favoring the nonmoving party for a jury to return a verdict for that party. 477 U.S. at 249, 106 S.Ct. at 2510. Where there is but one reasonable conclusion as to the verdict and reasonable minds would not differ as to the import of the evidence, summary judgment is appropriate. 477 U.S. at 250, 106 S.Ct. at 2511. There is no requirement in Fed.R.Civ.P. 56 that the moving party negate the opponent's claim. Celotex, 477 U.S. at 329, 106 S.Ct. at 2556. The movant's burden of proving that there is an absence of a genuine issue of material fact "may be discharged by `showing'— that is, pointing out to the district court— that there is an absence of evidence to support the nonmoving party's case." 477 U.S. at 325, 106 S.Ct. at 2554. "The movant must identify those portions of `the pleadings, depositions, answers to interrogatories and admission on file, together with affidavits if any' to demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)." Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

The following material facts are uncontroverted.

1. This lawsuit was filed by plaintiffs in the District Court of Pratt County, Kansas, on October 7, 1986, and was subsequently removed to this court by defendant. Plaintiffs claim that defendant has polluted their land (the Southeast Quarter, the South Half of the Northeast Quarter, the East Half of the Northwest Quarter, of Section 25, Township 27S, Range 11W, in Pratt County, Kansas) with salt water, oil and refuse, in the course of its oil and gas operations on plaintiff's land. Plaintiffs are requesting both money damages and equitable relief in the form of an order that defendant clean up water and soil on the land. On plaintiff's version of the facts, the cost of the requested clean up work is $70,000. Plaintiffs are seeking to recover alleged crop damages of $10,000; damages for remediation of the polluted areas of $70,000; damages for "inconvenience" of $10,000; damages for "aggravation and harassment' of $25,000; and damages for wrongfully moving a fence, of $10,000. Plaintiffs also seek to recover $100,000 in punitive damages for defendant's alleged "willfully failing to remediate the polluted areas."

2. Defendant is the successor in title to oil leases on plaintiffs' property, is responsible for the operation of the leases, and operates salt water disposal systems and oil production equipment on the leases. Defendant first acquired any interest in the leases on December 31, 1984, and began its operations on the land shortly thereafter. The damaged areas of plaintiffs' land were surveyed by Laughlin and Simmons of Kansas, Inc., on November 20, 1987; excluding minor additional spills occurring since the survey, the damaged area totals 8.927 acres. The parties have stipulated that the land in question has an undamaged value of $600 per acre.

3. The damages alleged in Count II of plaintiffs' "amended-supplemental petition" (which are shown as Areas 2 and 3 on the Laughlin-Simmons survey map) were caused by leaching from improperly plugged oil wells that were abandoned in the 1940s. The damaged area is sterile, and the sterile area did not increase in extent between May 1984 and May 1988.

4. The damages alleged in Count V of plaintiff's Amended-Supplemental Petition (which are shown as Area 7 of the Laughlin-Simmons survey map) were first caused in 1976, when the area was flooded by salt water. This area was also damaged by salt water overflows that happened from 1980 through the fall of 1983. The area of damages has increased since that time, as rainwater has spread the contamination. Plaintiff Robert Maxedon observed the spills that have contaminated Area 7, either at the time they occurred or shortly thereafter, and has been "trying to get the pollution in that area fixed ever since" 1976.

5. The damages alleged in Count VII of plaintiffs' Amended-Supplemental Petition (which are shown as Area 9 of the Laughlin-Simmons Survey map) first occurred in the 1940s. They arise either from an abandoned well that was improperly plugged or from a sludge pit created when wells in the area were drilled. The apparent damaged area has increased between May 1984 and May 1988 as the pollution has been spread by rainwater.

6. The damages alleged in Count VIII of plaintiffs' "amended-supplemental petition" (which are shown as Area 10 of the Laughlin-Simmons Survey Map) were caused by buried pipes abandoned in the 1930s and 1940s.

7. The damages alleged in Count IX of plaintiffs' "amended-supplemental petition" (which are shown as Areas 11 and 12 of the Laughlin-Simmons Survey Map) were caused by a sludge pit created when an oil well was drilled in the area in 1935.

8. The damages alleged in Count XI of plaintiffs' "amended-supplemental petition" (which are shown as Area 14 of the Laughlin-Simmons Survey Map) were caused by buried pipes abandoned in the 1930s and 1940s.

9. The damages alleged in Count XII of plaintiffs' "amended-supplemental petition" (which are shown as Area 18 of the Laughlin-Simmons Survey Map) were caused by spills from an oil pipeline, the first of which occurred five or six years prior to May 1988. Defendant does not operate and never has operated or maintained any oil pipeline near this area; Texaco Trading and Transportation, Inc., not a party to this lawsuit, does operate a nearby pipeline.

10. The damages alleged in that part of Count XIII of plaintiffs' "amended-supplemental petition" which is shown as Area 19 of the Laughlin-Simmons Survey Map were caused by an old sludge pit dating from the 1930s. Four years prior to May 1988, some of plaintiffs' tenant's cows got into this area, and were lost as a result.

11. Plaintiff Robert Maxedon has made numerous complaints about the alleged pollution involved in this lawsuit (including written complaints) to the Kansas Corporation Commission, which has investigated the complaints, but which has not acted on them.

The plaintiffs "supplement" paragraphs 4, 5, 7, and 10 above with the information that the damage to the areas of land mentioned in those paragraphs is continuing in nature. They do not support this assertion. The plaintiffs also "supplement" paragraph 11 above with the information that the Kansas Corporation Commission is now in the process of acting on their investigation. This assertion is also unsupported by the plaintiffs. The plaintiffs are not requesting both an equitable order that defendant clean up the land, and $70,000 in damages for the costs of cleaning up the land, as defendant contends, but either an injunction or damages sufficient to clean up the land.

The defendant has moved for partial summary judgment on several of plaintiffs' claims. The court is now prepared to address...