Miller v. Cudahy Co.
| Decision Date | 21 June 1983 |
| Docket Number | Civ. A. No. 77-1212. |
| Parties | Cecil W. MILLER and Mildred E. Miller, Joint Tenants; Margaret L. Birchenough Testamentary Trust, Donald L. Birchenough, Ansel Tobias and Walter Wright, Trustees; Ruth M. Hollinger, Individually and as Joint Tenant with Delbert Hollinger; John E. Edwards and Kermit C. Edwards, Joint Tenants; Homer Sharpe; Cecil M. Tobias and Frances Tobias, Joint Tenants; Paul F. Westrup and Ardis B. Westrup, Joint Tenants; Jay Brothers; Lyle Brothers, Individually and as Joint Tenant with Patricia R. Brothers; Alvin Engelland; Ansel Engelland; Jack Engelland and Vivian M. Engelland, Joint Tenants; Gerald N. Jones and Donna Jones, Joint Tenants; Robert A. Johannsen; Raymond E. Tobias; Gary Zwick; Lester Colle; Harvey Willhaus and Marilyn Willhaus, Joint Tenants; Wilmor H. Oden; Raphael Roeder and Annabelle A. Roeder, Joint Tenants; Edris Edwards; Edward F. Janda and Anna Mae Janda, Joint Tenants; Harry Zwick; Arthur H. Oden; Joleen J. Ottlinger; and William L. Bemis and Dorothy Bemis, Joint Tenants; Plaintiffs, v. CUDAHY COMPANY, a Delaware Corporation, and General Host Corporation, a New York Corporation, Defendants. |
| Court | U.S. District Court — District of Kansas |
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Deborah Carney and Hal Meltzer, Turner & Boisseau, Chartered, Great Bend, Kan., for plaintiffs.
Thomas Kitch and Ron Campbell, Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., for defendants.
This saltwater pollution case, which has been bogged down in an extraordinarily contentious discovery phase for nearly six years, is currently before the Court on the plaintiffs' motion for review of an order filed in this case by United States Magistrate John B. Wooley, and on the defendants' motion for partial summary judgment. These two motions, fairly routine in other cases, have been pending for some time because of the avalanche of paperwork accompanying them. The corpulent documents pertinent to these motions comprise nearly four hundred and fifty pages, and are accompanied by three unpaginated bound volumes of appendices numbering over one hundred. Giving these documents, and the arguments made in them, the consideration to which they are due has been a time-consuming adventure for the Court, and has generated an Opinion substantially longer than the ideal. The task has nevertheless been completed, and, for the reasons that follow, the Court must deny both the plaintiffs' motion and the majority of the defendants' motion.
The very numerous plaintiffs in the present lawsuit are owners and lessees of realty in Rice County, Kansas. To the northwest of this realty is the manufacturing plant of the American Salt Company American Salt. American Salt is a division of the defendant Cudahy Company Cudahy, a Delaware corporation with its principal place of business in Arizona. Cudahy is, in turn, a wholly-owned subsidiary of the defendant General Host Corporation, a New York corporation with its principal place of business in Connecticut. For convenience, the defendants will hereafter be collectively referred to as American Salt. American Salt is engaged in the business of producing salt and salt products, and this business has been carried on continuously at American Salt's present location since 1908.
The natural salt formation exploited by American Salt lies approximately 725 feet below the ground surface in a stratum 280 feet thick. Two methods are used to bring this salt to the surface. The first method utilizes a shaft mine and involves physically removing solid salt to the surface. The second method utilizes a matrix of brine wells and involves dissolving the salt in injected high pressure water, retrieving the saturated liquid brine at the surface, and evaporating the brine to leave solid salt. This latter method is called solution mining and is the only one pertinent to the issues in this lawsuit.
The water required by the solution mining process is obtained by American Salt from a natural aquifer that underlies the area at a depth of thirty to sixty feet. The aquifer flows in a southeasterly direction, and consequently passes under the lands owned or leased by the plaintiffs after it has passed under the lands occupied by American Salt and its solution mining field. As the existence of this lawsuit suggests, the aquifer has become heavily polluted with salt and can be used neither for irrigation nor for domestic purposes over a large area southeast of American Salt's plant. Salt concentrations approaching 30,000 parts per million p.p.m. have been recorded in water drawn from this aquifer. The gravity of these concentrations can best be appreciated when it is realized that concentrations as low as 250 p.p.m. are sufficient to make water taste salty and to render it unfit for domestic use. Saturated brine, that is, water holding in solution the maximum amount of salt possible, has a salt concentration of approximately 165,000 p.p.m.
The contentions of the parties are outlined in the Pre-Trial Order, Dk. No. 309, which was filed on March 9, 1982 and supercedes the pleadings in the case pursuant to Rule 16 of the Federal Rules of Civil Procedure. The plaintiffs essentially lay the blame for the saltwater pollution of the aquifer on American Salt, allege "that the defendants' actions constitute a continuing nuisance, trespass, and damages," Pre-Trial Order at 4, and demand a variety of relief, including per-acre damages, an injunction, and punitive damages. American Salt denies all liability in a complex and many-faceted argument that will be explicated shortly.
On May 19, 1982 the plaintiffs moved to supplement their pleadings pursuant to Rule 15(d) of the Federal Rules of Civil Procedure. In connection with this motion, the plaintiffs designated a new expert witness, Curtis Miller. On June 1, 1982, American Salt moved to strike Miller and two other expert witnesses from the plaintiffs' designation of experts. Magistrate Wooley, in a seven-page opinion filed October 20, 1982, construed the plaintiffs' motion as a motion to amend pursuant to Rule 15(a) and, as such, overruled it. The Magistrate also granted American Salt's motion to strike expert Miller, but overruled its motion to strike the other two experts. The plaintiffs have appealed the Magistrate's order to this Court, the eighth time that such an appeal has been perfected during the discovery in this case.
The plaintiffs sought to supplement their pleadings pursuant to Rule 15(d) with allegations that the salt dissolved in the aquifer is rising to the surface by capillary action and threatening to turn the entire area into a desert devoid of all plant life. Magistrate Wooley concluded "that if such capillary action exists at all, it has been occurring for a long period of time prior to the filing of this motion," thus rendering Rule 15(d) inapplicable and transforming the motion into one for an amendment under Rule 15(a).
In determining whether justice required the amendment, Magistrate Wooley considered the feasibility of a separate suit on the capillary action theory, the motive of the plaintiffs in waiting until such a late date to assert the claim, and the glacial pace of the discovery completed up to that time. The Magistrate concluded that a separate suit was feasible, that there was a "distinct probability of improper motives on the part of the plaintiffs," that additional delay of up to two years in the trial of this matter could result, and that allowing the amendment would grant an "undeserved tactical advantage to the plaintiffs" in regard to American Salt's motion for partial summary judgment that is dealt with in the next section of this Opinion. For these reasons, Magistrate Wooley overruled the motion. Finally, because the amendment was not permitted, American Salt's motion to strike expert Miller, whose testimony would have concerned only the capillary action theory, was granted.
It is well-established that the orders of a United States Magistrate must stand unless they are clearly erroneous or contrary to law, 28 U.S.C. § 636(b)(1)(A); Devore & Sons, Inc. v. Aurora Pacific Cattle Co., 560 F.Supp. 236, 239 (D.Kan.1983). Although this Court would have approached these motions from a different conceptual basis had they been presented here in the first instance, the Court is unable to conclude that the result reached by the Magistrate is either clearly erroneous or contrary to law. The disputed order must, therefore, be sustained.
The short answer to the plaintiffs' motion to amend is that it is fatally defective in failing to allege any damage resulting from the capillary action. Had the salt actually arrived on the surface and killed the vegetation, a far different case would be presented — and if the salt actually arrives on the surface at some future time, the Court has no doubt that a different case will be presented by the individuals damaged by such an arrival. At this point in time, however, justice simply does not require this Court to grant leave to the plaintiffs to amend their complaint in a way that alleges no damage and can lead to no recovery. When and if damage occurs, justice can be served by a separate lawsuit seeking recovery for that damage. Collateral estoppel and res judicata will not impede such a suit, as both Magistrate Wooley and this Court have concluded that the capillary action theory cannot be raised in this proceeding. The plaintiffs' motion to review the Magistrate's order is, therefore, overruled.
American Salt provides an analytical framework for its motion for partial summary judgment by dividing the plaintiffs into four distinct classes, as follows:
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