P. Bordages-Account B, L.P. v. Air Products, L.P.

• Decision Date: 23 August 2004
• Docket Number: No. CIV.A.1:04-CV-128.,CIV.A.1:04-CV-128.
• Citation: 369 F.Supp.2d 860
• Parties: P. BORDAGES-ACCOUNT B, L.P., Bordages Co. and Robert F. Ford, Jr., Plaintiffs, v. AIR PRODUCTS, L.P., Defendant.
• Court: U.S. District Court — Eastern District of Texas

369 F.Supp.2d 860

P. BORDAGES-ACCOUNT B, L.P., Bordages Co. and Robert F. Ford, Jr., Plaintiffs, v. AIR PRODUCTS, L.P., Defendant.

No. CIV.A.1:04-CV-128.

United States District Court, E.D. Texas, Beaumont Division.

August 23, 2004.

COPYRIGHT MATERIAL OMITTED

Anthony G. Brocato, Sr. of Law Offices of Anthony G. Brocato, Robert Keith Wade of Law Offices of Robert K. Wade, Beaumont, TX, for Plaintiffs.

Karen Bennett of Germer Gertz, LLP, Beaumont, TX, for Defendants.

MEMORANDUM AND ORDER

CRONE, District Judge.

Pending before the court are Plaintiffs' Motion for Summary Judgment (# 6) and Defendant's Cross-Motion for Partial Summary Judgment (# 8). Having reviewed the pending motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that Plaintiffs' Motion for Summary Judgment should be denied, while Defendant's Cross-Motion for Partial Summary Judgment should be granted.

I. Background

Plaintiffs P. Bordages-Account B, L.P. ("P.Bordages"), a Texas limited partnership, and Bordages Company ("Bordages Co."), a Texas corporation (collectively "Bordages"), with their principal places of business in Jefferson County, Texas, own land in the county in the Joseph Probarth Survey. The land is burdened by a pipeline easement created in 1942.¹

Plaintiff Robert F. Ford, Jr. ("Ford"), a resident of Jefferson County, Texas, owns land in the county in both the Elias Stone and the Antwine Mort Surveys. Ford's land in the Stone Survey is burdened by a pipeline easement similar to that which applies to Bordages' land in the Probarth Survey.²

Defendant Air Products is a foreign limited partnership created in Delaware and registered to do business in Texas. Pursuant to the first easement, Air Products operates a pipeline across land owned by Bordages in the Probarth Survey and, under the second easement, it operates a pipeline across land owned by Ford in the Stone Survey. Defendant also operates a pipeline across land owned by Ford in the Mort Survey, but without an express easement. Air Products transports hydrogen in the pipelines in question.

Plaintiffs instituted this action in the 58th Judicial District Court of Jefferson County, Texas. The case was subsequently removed to federal court based on diversity of citizenship. Plaintiffs allege that the transportation of hydrogen in the pipeline exceeds the scope of the easements across the Bordages property in the Probarth Survey and the Ford property in the Stone Survey. Plaintiffs further assert that no easement exists across the Ford property in the Mort Survey. Consequently, Plaintiffs seek a "mandatory injunction"³ requiring Air Products to remove hydrogen gas from the pipelines located on their real property and further requiring Air Products to cut off and disconnect the pipelines from its pipeline system.

There are two issues in dispute in this case. The first issue involves whether the above pipeline easements extend to the transportation of hydrogen on the Bordages land and the Ford land in the Stone Survey. Both easements allow the grantee to transport:

oil, petroleum, gas, the products of each of the same, water, other liquids and gases, and mixtures of any of the foregoing....

The second issue is whether, despite not having an express easement, Air Products has acquired an easement by prescription over Ford's land in the Mort Survey.

Following removal, Plaintiffs filed their Motion for Summary Judgment, asking the court to rule, as a matter of law, both that hydrogen is not included in the easements and that Air Products has no easement over the Ford property in the Mort Survey. Air Products then cross-filed its Motion for Partial Summary Judgment, requesting the court to declare that, as a matter of law, hydrogen is a gas and is, therefore, included in the easements in question. In addition, in its response to Plaintiffs' Motion for Summary Judgment, Air Products argues that, while it does not have an express easement on the Ford land in the Mort Survey, it has an easement by prescription over that land for the same use as that under its express easements.

II. Analysis

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th Cir.2003); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir.1999).

"A fact is `material' if it `might affect the outcome of the suit under governing law.'" Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir.2001) (emphasis in original) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466, 471 (5th Cir.2001); Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir.1999); Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir.1994). "An issue is `genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan, 246 F.3d at 489 (emphasis in original). Thus, a genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; accord Harken Exploration Co., 261 F.3d at 471; Merritt-Campbell, Inc., 164 F.3d at 961. The moving party, however, need not negate the elements of the nonmovant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999), cert. denied, 528 U.S. 1160, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000); Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. "[T]he court must review the record `taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348). All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996); see Reeves, 530 U.S. at 150, 120 S.Ct. 2097; Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir.2003); Harken Exploration Co., 261 F.3d at 471; Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 534 U.S. 951, 122 S.Ct. 347, 151 L.Ed.2d 262 (2001); Colson, 174 F.3d at 506.

The evidence of the nonmovant is to be believed, with all justifiable inferences drawn and all reasonable doubts resolved in its favor. See Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir.2003); Martinez, 338 F.3d at 411; Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir.), cert. denied, 540 U.S. 815, 124 S.Ct. 66, 157 L.Ed.2d 30 (2003); Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir.2002); Harken Exploration Co., 261 F.3d at 471. The evidence is construed "in favor of the nonmoving party, however, only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999); accord Little, 37 F.3d at 1075 (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

Furthermore, "`only reasonable inferences can be drawn from the evidence in favor of the nonmoving party.'" Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n. 14, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (emphasis in original) (quoting H.L. Hayden Co. of N. Y., Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2d Cir.1989)). "If the [nonmoving party's] theory is ... senseless, no reasonable jury could find in its favor, and summary judgment should be granted." Id. at 468-69, 112 S.Ct. 2072. The nonmovant's burden is not satisfied by "some metaphysical doubt as to material facts," conclusory allegations, unsubstantiated assertions, speculation, the mere existence of some alleged factual dispute, or "only a scintilla of evidence." Little, 37 F.3d at 1075; see Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505; Wallace, 80 F.3d at 1047; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)). "Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for...