Upton et al v. Plantation Pipe Line Company et al

Filing 26

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 2/9/2018. (PSM)

FILED
2018 Feb-09 PM 01:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DISTRICT
WILLIAM UPTON, et al.,
Plaintiffs,
v.
PLANTATION PIPE LINE
COMPANY, et al.
Defendants.

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2:17-cv-00771-LSC

MEMORANDUM OF OPINION
Plaintiffs, William Upton; Winwood Land, Holdings, LLC; Paul Yeager;
Clara Yeager; Paul Yeager, Jr.; Marco Bonilla; and Clara Jill Yeager Bonilla;
(collectively referred to as “Plaintiffs”) originally filed this action in the Circuit
Court of Shelby County, Alabama. Plaintiffs seek compensatory and punitive
damages for: the release of petroleum onto and near their properties, and the failure
to accurately evaluate and remediate the release, as well as damages to real
property, property rights, and the loss of quiet and peaceful enjoyment.
Defendants, Plantation Pipe Line Company (“Plantation”); Kinder Morgan Energy
Partners, L.P.; Kinder Morgan Management, LLC; Kinder Morgan, Inc.; Kinder
Morgan G.P., Inc.; Kinder Morgan Operating, L.P. “A”; and Kinder Morgan
Operating L.P. “B”; (collectively “the Kinder Morgan Entities”) removed the
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action to this Court on May 10, 2017 asserting diversity jurisdiction pursuant to 28
U.S.C. §§1332, 1441 and 1446. (Doc. 1.) In response, Plaintiffs filed a Motion to
Remand on May 19, 2017, claiming resident Defendant Bhate stripped this Court
of jurisdiction and warranted remand. (Doc. 7.) For the reasons stated below, the
Motion to Remand (doc. 7) is due to be GRANTED.
I.

BACKGROUND 1
On August 21, 2014, Defendants’ pipeline released thousands of gallons of

petroleum onto Plaintiffs’ properties. Clean-up efforts began shortly thereafter.
However, petroleum continues to contaminate the surface and surface waters. As a
result, Plaintiffs have lost business opportunities, as well as the use of their wells;
and incurred property damage, diminution of land value, emotional distress, mental
anguish, and have suffered a continuous nuisance. Plaintiffs filed this action in
state court on March 30, 2017, listing Plantation, the Kinder Morgan Entities,
CH2M Hill, CH2M Engineers, Inc., and Bhate Environmental Associates Inc,
(“Bhate”), and fictitious defendants A, B, and C, as defendants (collectively
“Defendants”). Plantation and Kinder own the pipeline, and CH2M Hill, CH2M
Engineers, Inc., and Bhate, were responsible for determining the scope of the
contamination, creating remediation protocols, and collecting samples for testing.

1

These are the facts for purposes of ruling on the Motion for Remand only. These may not be the
actual facts. They are taken from the parties’ submissions and briefings; the Court makes no
ruling on their veracity.
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Plaintiffs claim Defendants are liable for negligence, wanton and willful conduct,
gross negligence, trespass, nuisance, and strict liability.
II.

STANDARD OF REVIEW
This Court, like all federal courts, is a court of “limited jurisdiction.”

Jackson-Platts v. Gen. Elec. Capital Corp., 727 F.3d 1127, 1134 (11th Cir. 2013).
It is authorized to hear only those cases falling within “one of three types of subject
matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal
question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a).” PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299,
1305 (11th Cir. 2016). A defendant may remove an action initially filed in state
court to federal court if the action is one over which the federal court has original
jurisdiction. 28 U.S.C. § 1441(a). “[A] defendant seeking to remove a case to a
federal court must file in the federal forum a notice of removal ‘containing a short
and plain statement of the grounds for removal.’” Dart Cherokee Basin Operating
Co. v. Owens, 135 S. Ct. 547, 553 (2014) (quoting 28 U.S.C. § 1446(a)). For
removal to be proper, the court must have subject-matter jurisdiction in the case.
See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Because they removed
this action, Defendants bear the burden of establishing that removal was proper.
See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). Any doubt about
the existence of federal jurisdiction “should be resolved in favor of remand to state
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court.” City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir.
2012) (internal citations omitted)).
III.

DISCUSSION
In order for the Court to exercise diversity jurisdiction, two requirements

must be met: (1) the matter in controversy must exceed $75,000, and (2) there must
be complete diversity among the parties. 28 U.S.C. § 1332(a); see, e.g., Triggs v.
John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). The Defendants
removed this case on the basis of diversity jurisdiction, despite Bhate’s citizenship,
claiming fraudulent joinder. Plaintiffs argue that viable state law tort claims were
asserted against Bhate as a private corporation having its principal place of
business in Birmingham, Alabama, and thus diversity jurisdiction under 28 U.S.C.
§ 1332(a) does not exist. Here, the amount in controversy is alleged to be over
$75,000 and is not in dispute. (Doc. 7-1 at 2.) Therefore, the only issue in
Plaintiffs’ Motion to Remand is whether Bhate was fraudulently joined.
Fraudulent joinder provides an exception to the complete diversity
requirement. Triggs, 154 F.3d at 1287. When a non-diverse defendant is joined
solely to defeat diversity jurisdiction, the presence of the non-diverse defendant
must be ignored when determining jurisdiction. Henderson v. Washington Nat’l
Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). A defendant may show fraudulent
joinder by demonstrating by clear and convincing evidence among other things
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that: “‘there is no possibility the plaintiff can establish a cause of action against the
resident defendant . . . .’” Id. (quoting Crowe v. Coleman, 113 F.3d 1536, 1538
(11th Cir. 1997)). A defendant who seeks to prove a non-diverse defendant was
fraudulently joined has a heavy burden. Crowe, 113 F.3d at 1538.
Fraudulent joinder determination “must be based upon the plaintiff’s
pleadings at the time of removal, supplemented by any affidavits and deposition
transcripts submitted by the parties.” Pacheco de Perez v. AT&T Co., 139 F.3d
1368, 1380 (11th Cir. 1998). Here, Defendants do not claim Plaintiffs alleged
fraudulent facts, instead only that it is not possible for the Plaintiffs to state a cause
of action. The “no cause of action” theory of fraudulent joinder requires
Defendants to prove that there is “[no] possibility that a state court would find that
the complaint states a cause of action against . . . the [non-diverse] defendant[ ]
[Bhate].” Crowe, 113 F.3d at 1538 (quotation marks omitted).
Whether a possible cause of action has been asserted is determined by the
state pleading standards, rather than the federal ones. Stillwell v. Allstate Ins. Co.,
633 F.3d 1329, 1334 (11th Cir. 2011). Under Rule 8, Ala. R. Civ. P., a complaint
that “puts the defendant on notice of the claims against him” is sufficiently pled.
Bethel v. Thorn, 757 So. 2d 1154, 1158 (Ala. 1999). Plaintiffs simply must
demonstrate that “[t]he potential for liability [is] reasonable and not merely
theoretical.” Legg v. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir. 2005) (internal
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citations and quotations omitted)). A claim is not proper where “it appears beyond
doubt that the plaintiff can prove no set of facts in support of the claim that would
entitle the plaintiff to relief.” Norfolk S. Rail Co. v. Goldthwaite, 176 So. 3d 1209,
1212 (Ala. 2015) (internal quotations and citations omitted). If there is a possibility
the complaint states an arguable or colorable cause of action against the resident
defendant, the Court must find joinder was proper. Id.; see also Pacheco de Perez,
139 F.3d at 1380.
When assessing an assertion of fraudulent joinder, factual allegations and
uncertainties about the applicable law must be evaluated in the light most favorable
to the plaintiff. Legg, 428 F.3d at 1322. Here, Plaintiffs brought six claims in their
Complaint: negligence, willful and wanton conduct, gross negligence, trespass,
nuisance, and strict liability 2. (Doc. 1-1.) If Plaintiffs have possibly stated a claim
under any one of these theories of liability as against Bhate, remand is warranted.
A. Negligence and Gross Negligence
Plaintiffs allege that Defendants, including Bhate, breached a duty owed to
them to properly sample, test, cleanup, monitor, and otherwise remediate the

2

In Alabama, strict liability applies to any harm caused by any abnormally dangerous activity
despite the exercise of utmost care. Harper v. Regency Development Co., Inc., 399 So. 2d 248,
252 (Ala. 1981) (liability for abnormally dangerous activities has typically been limited to
activities such as blasting in Alabama). Whether an activity is abnormally dangerous is
“ordinarily . . . a jury question.” Beddingfield, 127 So. 3d at 1190 (emphasis in original).
Because the Court finds that Plaintiffs have stated viable causes of action under other theories of
liability as against resident defendant Bhate, it will reserve the question of whether a claim of
strict liability has been stated against it for the state court to decide on remand.
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gasoline contamination to prevent it from spreading onto and under Plaintiffs’
properties. Under Alabama law, a negligence claim is sufficiently pled when it
demonstrates that the defendant breached a duty 3 to a foreseeable plaintiff, and the
breach proximately caused the injury. Lemley v. Wilson, 178 So. 3d 834, 841-42
(Ala. 2015).
Defendants argue that a lack of privity and absence of a contract between
Bhate (as subcontractor hired by CH2M Hill) and Plaintiffs preclude the existence
of a duty. However, the Alabama Supreme Court has recognized an exception to
both the privity and third party beneficiary requirements in negligence claims. See
Cincinnati Ins. Co. v. Barber Insulation, Inc. v. Providence Hospital, 454 So.2d
441, 446 (Ala. 2006); see also QORE, Inc. v. Bradford Bldg. Co. Inc., 25 So. 3d
1116 (Ala. 2009). Where a defendant performs under a contract, knowing that
others rely on the performance, and the resulting harm is foreseeable, a plaintiff
may recover for negligence. Id. Bhate admittedly contracted with CH2M Hill, and
it could have breached its duty under that contract with knowledge that Plaintiffs
were reliant on proper sampling for adequate clean-up of their property.
Defendants also assert that Bhate’s actions are not the proximate cause of
Plaintiffs’ alleged injuries and therefore a number of the claims against it fail.
Proximate cause “is that cause which, in the natural and probable sequence of
3

The existence of a duty is based upon the facts of the particular case. Cox v. Miller, 361 So. 2d
1044, 1048 (Ala. 1978).
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events, and without the intervention or coming in of some new or independent
cause, produces the injury, and without which the injury would not have occurred.”
Alabama Power Co. v. Moore, 899 So. 2d 975, 979 (Ala. 2004). Plaintiffs allege
that Bhate’s liability, and thus Plaintiffs’ damages, stems from the refusal or failure
to test contaminated areas on the part of Bhate. According to the Walker affidavit,
Bhate had absolutely no control over what areas were tested because the test sites
were pre-determined by CH2M. See Declaration of Rhett P. Walker, Jr. (“Walker”)
(Doc 21-1). Nonetheless, for the purposes of fraudulent joinder analysis, this Court
is “not to weigh the merits of a plaintiff’s claim beyond determining whether it is
an arguable one under state law.” Crowe, 113 F.3d at 1538. The mere “fact that the
plaintiffs may not ultimately prevail against the individual defendants because of
an insufficient causal link between the defendants' actions and the plaintiffs'
injuries does not mean that the plaintiffs have not stated a cause of action for
purposes of the fraudulent joinder analysis.” Pacheco de Perez, 139 F.3d at 1380181. Considering all facts in a light most favorable to Plaintiffs, they have alleged a
claim for negligence against Bhate under Alabama law.
Plaintiffs’ also assert that the breach of duty was performed with a blatant
disregard to human health, and will continue to cause harm in addition to damage
already incurred, constituting gross negligence. A claim for gross negligence must
state the same elements required for negligence, the defendant’s knowledge of the
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probable consequences of not taking care, as well as an indifference to those
consequences. Wilkinson v. Searcy, 76 Ala. 176, 181 (Ala. 1884). Willful and
wanton conduct is defined as a person behaving “with reckless indifference to the
consequences, consciously and intentionally [doing] some wrongful act or
[omitting] some known duty” which proximately causes injury. Lemley, 178 So. 3d
at 841-42. Failure to properly remediate a petroleum spill could rise to the level of
gross negligence and could possibly proceed past a motion to dismiss stage in state
court, thus the Court finds that Plaintiffs have alleged a colorable claim for gross
negligence under the motion to remand standard.
B. Trespass and Nuisance
As for their trespass claim, movants note that the Yeager Plaintiffs “have
never granted access to any of the Defendants, Bhate included, so as to allow the
Defendants to physically trespass onto their respective properties for purposes of
drilling monitoring wells and/or conducting any environmental samples.” (Doc. 71.) A trespass claim requires either an invasion of property possessed by another, a
party who remains on the land, or a failure to remove a thing from the land that he
has a duty to remove. See Rushing v. Hooper McDonald, Inc., 293 Ala. 56, 59
(1974). In the affidavit attached to the reply brief (doc. 22), Plaintiff Paul Yeager
swears that neither he nor any member of his family entered into any access
agreement with any of the Defendants giving them any right to trespass on their
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land nor did they verbally give any named defendant right of access. (See doc 221.) He also states that he has “personally witnessed representatives of the
defendants including employees of Bhate Environmental trespassing on our
property . . . and [has] personally seen the Bhate Environmental logo on vehicles
on our property. . . . These defendants’ presence on our property without our
consent or permission has also been a nuisance.” Id.
While trespass is a separate tort, the conduct that is sufficient to establish a
claim is often the same as that evidencing a claim for nuisance. See Borland v.
Sanders Lead, Co., Inc., 369 So. 2d 523, 527 (Ala. 1979). A sufficiently pled claim
for nuisance requires an alleged action that “works hurt, inconvenience, or damage
on another.”. Ala. Code § 6-5-120 (1975) (“The fact that the act done may
otherwise be lawful does not keep it from being a nuisance.”). “‘[A]nything’ (i.e., a
nuisance, public or private) may consist of conduct that is intentional,
unintentional, or negligent. Indeed, it may even consist of activities that are
conducted in an otherwise lawful and careful manner, as well as conduct that
combines with the culpable act of another, so long as it works hurt, inconvenience,
or damage to the complaining party.” Tipler v. McKenzie Tank Lines, 547 So. 2d
438, 440 (Ala. 1989) (citing Restatement (Second) of Torts § 821B (1979)). In
support of their nuisance claim, Plaintiffs allege Defendants’ interfered with the
use and enjoyment of their property by conducting sampling, testing, clean-up, and
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remediation in a manner that is unreasonable, has caused damages, and will
continue to cause damage.
Looking at the Complaint supplemented by affidavits, Plaintiffs allege that
Defendants entered Plaintiffs’ land without permission to test for contamination in
multiple locations and at multiple times—establishing possible claims for both
trespass and nuisance.

The pertinent paragraphs of the Complaint regarding

trespass and nuisance are as follows:
62. The Defendants’ intentional acts and/or omissions have caused and
continue to cause petroleum and its constituent matter to enter the
Plaintiffs’ properties over their loudly voiced objections. This knowing and
deliberate invasion of the Plaintiffs’ properties rights constitutes a trespass
under Alabama law. The Defendants’ act and omissions are continuing to
date.
63. Defendants’ unconsented to invasion and trespass has caused and
continues to cause damage to Plaintiffs in the form of substantial real and
personal property damages, out of pocket expenses, loss of qualify of life,
aggravation and inconvenience, and the creation of conditions that are
harmful to human health and the environment, all of which the Defendants
are jointly and severally, liable for in damages.
(Compl., Doc. 7-2 at 20.) Defendants assert that the forgoing paragraphs do not
sufficiently put them on notice that a direct trespass claim is being lodged against
them. However, under the remand scheme, the Court must consider the Complaint
at the time of removal supplemented by affidavits. Pacheco de Perez, 139 F.3d at

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1380 (emphasis added). In light of Plaintiff Yeager’s affidavit, colorable claims for
both nuisance and trespass 4 exist against Bhate.
C. Willful or Wanton Conduct
Plaintiffs allege that Defendants, including Bhate, knew harm would arise
from the acts and omissions during clean-up, testing, and sampling, but continued
to act in an intentional and willful nature, with conscious disregard to property and
rights of the Plaintiffs. In Alabama, “[w]antonness in a trespass action is
established by the mere knowledge on the part of the defendant of his invasion of
the plaintiff's rights.” Cummans v. Dobbins, 575 So. 2d 81, 82 (Ala. 1991) (wanton
conduct found where trespasser continued to trespass despite knowledge of lack of
permission to be on property). Because a colorable claim for trespass exists,
Plaintiffs’ assertions could therefore also establish a possible state-law claim for
willful and wanton conduct.
When considering a fraudulent joinder question, the “ . . . federal courts are
not to weigh the merits of a plaintiff’s claim beyond determining whether it is an
arguable one under state law.” Crowe, 113 F.3d at 1538. Resolving questions of
fact in favor of Plaintiffs, the Court finds that Plaintiffs have stated several

4

Whether direct or indirect, the Plaintiffs have sufficiently pled a trespass claim as against
Defendant Bhate. Under Alabama’s notice pleading standard, it has been held “that where a
complaint contains the elements necessary to constitute a trespass, it is sufficient even though the
complaint does not use the word ‘trespass.’” W. T. Ratliff Co., Inc. v. Purvis, 291 So. 2d 289
(Ala. 1974) (citing McGill v. Varin, 106 So. 2d 44 (Ala. 1925)).
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arguable state law claims against Bhate. In sum, the causes of action as alleged are
“reasonable, not merely theoretical.” Legg, 428 F.3d at 1325 n. 5.
IV.

CONCLUSION
For the reasons stated above, viable causes of action have been asserted

against Bhate, and therefore no fraudulent joinder is found in this case.
Accordingly, Plaintiff’s Motion to Remand (Doc. 7) is due to be GRANTED and
the case REMANDED the Circuit Court of Shelby County, Alabama. A separate
Order consistent with this Opinion will be entered.
DONE and ORDERED on February 9, 2018.

_____________________________
L. Scott Coogler
United States District Judge
190685

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