Bruner v. El Paso Exploration & Production Management Inc et al

Filing 28

MEMORANDUM OPINION, as set out, re motion 19 . An Order will be entered contemporaneously w/ this Memorandum Opinion. Signed by Judge Sharon Lovelace Blackburn on 8/11/14. (CTS, )

FILED
2014 Aug-11 PM 03:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
RICKY WAYNE BRUNER,
Plaintiff,
vs.
ARP PRODUCTION COMPANY,
L.L.C.;
EP
ENERGY
MANAGEMENT, L.L.C.,
Defendants.

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CASE NO. 6:14-CV-0618-SLB

MEMORANDUM OPINION
This case is currently before the court on defendant ARP Production Company’s
Motion to Dismiss Plaintiff’s Complaint. (Doc. 19.)1 Plaintiff Ricky Wayne Bruner has sued
defendants – ARP and EP Energy Management – alleging trespass, nuisance, and negligence
claims arising out of defendants’ drilling operations on certain real properties. Upon
consideration of the record, the submissions of the parties, the arguments of counsel, and the
relevant law, the court is of the opinion that the ARP’s Motion to Dismiss Plaintiff’s
Complaint, (doc. 19), is due to be denied in part and granted in part.
I. STANDARD OF REVIEW
The purpose of a motion authorized by Rule 12(b)(6) of the Federal Rules of Civil
Procedure is to evaluate the facial sufficiency of a pleading. Rule 12(b)(6) must be read

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Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

together with Rule 8(a)(2) of the Federal Rules of Civil Procedure, which “requires that a
pleading contain a short and plain statement of the claim showing that the pleader is entitled
to relief in order to give the defendant fair notice of what the claim is and the grounds upon
which it rests.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010)
(internal citations and quotation marks omitted). In deciding a 12(b)(6) motion to dismiss,
the court accepts the allegations in the pleading as true and construes such allegations in the
light most favorable to the pleader. Ironworkers Local Union 68 v. AstraZeneca Pharm., LP,
634 F.3d 1352, 1359 (11th Cir. 2011)(quoting Am. Dental Ass’n, 605 F.3d at 1288). The
pleading “does not need detailed factual allegations” to withstand a 12(b)(6) motion;
however, “a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[A] [pleading] must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A
claim for relief has “facial plausibility” if it “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550
U.S. at 556).
Res judicata, a doctrine under which ARP seeks dismissal, “is not a defense under
12(b); it is an affirmative defense that should be raised under Rule 8(c).” Concordia v.
Bendekovic, 693 F.2d 1073, 1075 (11th Cir. 1982)(citations omitted). “Generally, the
existence of an affirmative defense will not support a motion to dismiss. Nevertheless, a

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[pleading] may be dismissed under Rule 12(b)(6) when its own allegations indicate the
existence of an affirmative defense, so long as the defense clearly appears on the face of the
[pleading].” Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984)
(citations omitted), vacated on petition for reh’g, reinstated by 764 F.2d 1400 (11th Cir.
1985). If a district court considers matters outside the pleadings, the court must convert the
12(b)(6) motion to dismiss into a motion for summary judgment under Federal Rule of Civil
Procedure 56. Fed. R. Civ. P. 12(d). However, a district court may take judicial notice of
public records, such as filings in other judicial proceedings, without converting a 12(b)(6)
motion into a motion for summary judgment. Lozman v. City of Riviera Beach, 713 F.3d
1066, 1075 n.9 (11th Cir. 2013)(“Although this [res judicata defense] is before the court on
a motion to dismiss, we may take judicial notice of the court documents from the state
eviction action.”); Horne v. Potter, 392 Fed. Appx. 800, 802 (11th Cir. 2010)(per curiam)
(finding that the district court properly took judicial notice of documents from a prior lawsuit
“which were public records that were ‘not subject to reasonable dispute’” (quoting Fed. R.
Evid. 201(b)));2 Universal Express, Inc. v. U.S. S.E.C., 177 Fed. Appx. 52, 54 (11th Cir.
2006)(per curiam)(finding that the district court’s consideration of a complaint filed in a

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Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
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separate case did not require converting the motion to dismiss into a motion for summary
judgment).
II. STATEMENT OF FACTS
On or about December 30, 2011, plaintiff Ricky Wayne Bruner filed a quiet-title
action against, inter alia, El Paso E&P Company seeking a determination of the ownership
of the mineral rights as to certain real properties in Walker County, Alabama. The Complaint
and Amended Complaint in that action sought only a determination of the ownership of
mineral rights and interests in the real property. Bruner and “EP Energy E&P Company
(formerly El Paso E&P Company)” filed a Joint Stipulation of Dismissal on August 29, 2013;
the Joint Stipulation stated, “Plaintiff dismisses his claims against EP Energy, with
prejudice.” (Doc. 20 at 49.)
Bruner filed the instant action on April 3, 2014, in which he alleges that he is the
owner of surface rights in certain real property in Walker County. (Doc. 1 ¶¶ 7-20.) He
alleges that defendants, ARP and EP Energy, “conduct drilling operations on and around [his
properties] . . . for the purpose of extracting natural gas.” (Id. ¶ 22.) He does not allege that
he is the owner of the mineral rights on these properties.
The Complaint contains four Causes of Action: (1) Trespass to Lands, (id. ¶¶ 25-44);
(2) Private Nuisance, (id. ¶¶ 45-51); (3) Negligence Per Se, (id. ¶¶ 52-59);3 and (4)

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“Cause of Action III” of plaintiff’s Complaint is entitled, “Negligence Per Se,” but
seeks statutory relief under the Clean Water Act. (See doc. 1 at 13-14.)
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Negligence, (id. ¶¶ 60-66).

These claims are based on allegations that defendants

“unlawfully enter[er], allow[ed], or caus[ed] hazardous foreign substances to enter [Bruner’s
properties],” including “hydrocarbons, methane, volatile organic compounds . . ., benzene,
xylene, 1,3-butadiene,” (id. ¶¶ 30, 37, 46, 57, 62, 65); unlawfully erected electrical power
poles and cables on the properties, (id. ¶ 31); “haphazardly dug ditches and installed drainage
pipes that cause runoff from the wells to land onto [Bruner’s properties], (id. ¶ 34); “erected
earthen berms that physically block [Bruner’s] egress and ingress onto and from . . . his . .
. [p]roperties, (id. ¶ 35); and damaged Bruner’s ground waster wells, (id. ¶ 49, 64).
According to ARP, it is “the successor in interest to EP Energy by acquisition,
assignment and bill of sale of EP Energy’s assets and operations in Alabama.” (Doc. 20 at
3 n.2.) Also, “EP Energy is the lone shareholder of what is now called EP Energy
Management, LLC, which is the successor in name to El Paso Exploration & Production
Management, Inc. and El Paso Production Oil & Gas Co.” (Id.)
On June 9, 2014, defendant ARP filed a Motion to Dismiss pursuant to Fed. R. Civ.
P. 12(b)(6). (Doc. 19.) In its Motion to Dismiss, ARP contends:
1. Plaintiff's claims are barred by res judicata because: (a) there was a
prior judgment on the merits; (b) rendered by a court of competent jurisdiction;
(c) with substantial identity of the parties; and (d) with the same cause of
action presented in both suits.
2. To the extent Count III of the Complaint alleges violations of the
Clean Water Act, Count III should be dismissed because Plaintiff cannot state
a valid claim for failure to satisfy the Clean Water Act's procedural
requirements.

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(Id. ¶¶ 1-2.)
III. DISCUSSION
A. EVIDENCE SUBMITTED WITH DEFENDANT’S REPLY BRIEF
ARP filed additional evidence with its Reply in Support of its Motion to Dismiss
Plaintiff’s Complaint. (See doc. 25-1 to doc. 25-6.) The moving party may not submit
evidence with its reply submission without leave of the court. The reason for this rule is
obvious – the non-moving party must be allowed a “reasonable opportunity” to oppose the
moving party’s Motion to Dismiss, Fed. R. Civ. P. 12(d), and evidence and arguments raised
for the first time after the non-moving party has filed its opposition effectively denies the
non-moving party such reasonable opportunity, see Burns v. Gadsden State Community
College, 908 F.2d 1512, 1516 (11th Cir. 1990). When faced with additional evidence
submitted by the moving party after the time set for the non-moving party to file all his
opposition to the motion, the court has two options: “it [can] strike the [evidence] or grant
. . . the nonmoving party the opportunity to respond to it.” Cia. Petrolera Caribe, Inc. v.
Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir. 1985); see also Beaird v. Seagate
Technology, Inc., 145 F.3d 1159, 1164 (10th Cir. 1998). In this case, the court chooses to
strike the evidence.
Therefore, the documents attached to defendant’s reply submission will be stricken
and have not been considered in deciding its Motion to Dismiss.

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B. RES JUDICATA
“The Full Faith and Credit Act, 28 U.S.C. § 1738,4 originally enacted in 1790, ch. 11,
1 Stat. 122, requires the federal court to ‘give the same preclusive effect to a state-court
judgment as another court of that State would give.’” Exxon Mobil Corp. v. Saudi Basic
Industries Corp., 544 U.S. 280, 293 (2005)(citing, inter alia, Parsons Steel, Inc. v. First
Alabama Bank, 474 U.S. 518, 523 (1986))(footnote added). Therefore, whether the prior
Alabama state-court judgment bars the present action is determined with reference to
Alabama law.
In Alabama –
Two causes of action are the same for res judicata purposes when the
following four elements are satisfied: “(1) a prior judgment on the merits, (2)
rendered by a court of competent jurisdiction, (3) with substantial identity of
the parties, and (4) with the same cause of action presented in both actions.”
Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998). “If those

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Section 1738 states, in pertinent part:

The records and judicial proceedings of any court of any such State,
Territory or Possession, or copies thereof, shall be proved or admitted in other
courts within the United States and its Territories and Possessions by the
attestation of the clerk and seal of the court annexed, if a seal exists, together
with a certificate of a judge of the court that the said attestation is in proper
form.
Such Acts, records and judicial proceedings or copies thereof, so
authenticated, shall have the same full faith and credit in every court within the
United States and its Territories and Possessions as they have by law or usage
in the courts of such State, Territory or Possession from which they are taken.
28 U.S.C. § 1738.
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four elements are present, then any claim that was, or that could have been,
adjudicated in the prior action is barred from further litigation.” Id. (citing
Dairyland Ins. Co. v. Jackson, 566 So. 2d 723, 725-26 (Ala. 1990)).
Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d 914, 919 (Ala. 2007). “The
touchstone of whether a particular claim presents the same cause of action that was presented
and litigated to a final judgment in a previous civil action is ‘whether the claims in both
actions arise out of, and are subject to proof by, the same evidence.’” Kaufmann &
Associates, Inc. v. Davis, 908 So. 2d 246, 252 (Ala. Civ. App. 2004)(quoting Vinson, 723 So.
2d at 637). “[W]hether the second action presents the same cause of action depends on
whether the issues in the two actions are the same and on whether substantially the same
evidence would support a recovery in both actions.” Vinson, 723 So. 2d at 637 citations
omitted).
Bruner’s prior action against APR’s predecessor in interest asserted a single claim to
quiet title to the mineral rights on certain real properties. According to Alabama law –
When any person is in peaceable possession of lands, whether actual or
constructive, claiming to own the same, in his own right . . . , and his title
thereto, or any part thereof, is denied or disputed or any other person claims or
is reputed to own the same, any part thereof, or any interest therein . . . and no
action is pending to enforce or test the validity of such title, claim, or
encumbrance, such person . . . , so in possession, may commence an action to
settle the title to such lands and to clear up all doubts or disputes concerning
the same.
Ala. Code § 6-6-540. When a plaintiff seeking to quiet title establishes peaceable possession,
the burden then shifts to the defendant to demonstrate valid legal title. Upon that
demonstration the burden shifts back to the plaintiff to show superior title by adverse
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possession or a better deed. Ex parte Cottrell, Nos. 1111006 and 1111011, 2014 WL
803306, *3 (Ala. Feb. 28, 2014)(citing Wiggins v. Stapleton Baptist Church, 210 So. 2d 814,
816-17 (Ala. 1968)). Therefore, proof in a quiet-title action requires evidence of the parties’
conveyances of the subject property or any part of the subject property, such as mineral
rights.
In the prior action, Bruner sued ARP’s predecessor to settle his right, as against that
predecessor, to the mineral rights on the subject properties. Evidence of ARP’s conduct in
extracting natural gas pursuant to the mineral rights was not relevant to any proof of its or
its predecessor’s valid title to those mineral rights and/or Bruner’s superior title. However,
evidence of ARP’s conduct is material and relevant to Bruner claims in the instant action
based on claims of trespass, nuisance, and negligence. Therefore, Bruner’s claims in this
action are not the same cause of action as presented in the prior quiet title action.
Because this action and the state-court quiet title action are not the same cause of
action, the prior judgment in the state court action does not preclude this case. Defendant
ARP’s Motion to Dismiss Bruner’s claims based on res judicata will be denied.
C. CAUSE OF ACTION III: NEGLIGENCE PER SE AND THE CLEAN WATER
ACT
ARP asks the court to dismiss Count III of Bruner’s Complaint “because Plaintiff
cannot state a valid claim for failure to satisfy the Clean Water Act’s procedural
requirements.” (Doc. 19 ¶ 2.) In his Complaint, Bruner alleges:

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CAUSE OF ACTION III
Negligence Per Se
52. Plaintiff Bruner adopts, re-alleges and incorporates each of the
preceding paragraphs as if fully set forth herein. Plaintiff Bruner further
alleges:
53. That the Defendants have violated statutory language meant to
deter, limit, or negate damages to Plaintiff Bruner.
54. That Plaintiff Bruner is a member of those classes of persons for
which the statutes violated by the Defendants are enacted to protect.
55. That as a direct and proximate cause of the state and federal
statutes violated by the Defendants, Plaintiff Bruner has been made to suffer
injuries and damages.
56. That specifically, the Defendants violated the aforementioned
§6-5-124; [§] 6-5-210; and, §6-5-212 of the Code of Alabama.
57. That in addition, the Defendants have caused the release of
dangerous hydrocarbons onto and around the Subject Properties in violation
of the Clean Water Act, codified at 33 U.S.C. §1365.
58. That, the Defendants have violated the provisions of the Clean
Water Act by failing to comply with effluent standards and limitations imposed
for the release of hydrocarbons onto the Subject Properties.
59. That, Plaintiff Bruner, because of the Defendants’ violations of the
Clean Water Act has been caused and will be caused permanent, and lasting
damages.
WHEREFORE, premises considered, Plaintiff Bruner demands
compensatory and punitive damages and judgment against the Defendants for
violations of the codified state statutes and violations of the Clean Water Act,
which give rise to damages sought, to include the penalty of Twenty-Five
Thousand Dollars ($25,000) per day for violation of the Clean Water Act.
(Doc. 1 at 13-14.)

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ARP contends that Bruner cannot pursue a claim under the Clean Water Act because
he has not provided the required written notice before filing suit. In its Memorandum of Law
in Support of Defendant ARP Production Co., L.L.C.’s Motion to Dismiss Plaintiff’s
Complaint, ARP states:
Section 1365(b) of the CWA provides that no action may be
commenced “prior to sixty days after the plaintiff has given notice of the
alleged violation (i) to the Administrator, (ii) to the State in which the alleged
violation occurs, and (iii) to any alleged violator of the standard, limitation or
order.” [33 U.S.C. § 1365(b).] Compliance with this notice requirement is
mandatory and must be pleaded. National Environmental Foundation v. ABC
Rail Corp., 926 F.2d 1096 (11th Cir. 1991). Courts strictly enforce the notice
requirements, and failure to comply with them will result in mandatory
dismissal. Id. at 1097-98.
In National Environmental Foundation, the National Environment
Foundation (“NEF”) sent notice to the appellee ABC Rail Corp. (“ABC”), the
Environmental Protection Agency (“EPA”), and the Alabama Department of
Environmental Management (“ADEM”) advising them that it would file suit
against ABC for alleged violations of the CWA. 926 F.2d at 1097. NEF then
filed a complaint in the Northern District of Alabama the next day. Id. ABC
moved to dismiss the complaint on the grounds that NEF had failed to give 60
days’ notice as required by 33 U.S.C. § 1365(b). Id. The district court granted
the motion, and NEF appealed. Id. The Eleventh Circuit affirmed, explaining
that the notice requirement in Section 1365(b) was both clear and mandatory,
and holding that “[i]f a plaintiff fails to comply with this notice requirement
where it is applicable, the district court is required to dismiss the action.” Id.
at 1098.
Here, Mr. Bruner has failed to comply with Section 1365(b)’s notice
requirement. Mr. Bruner has not pled that he notified the EPA or ARP as
required under 28 U.S.C. §1365(a). Count III, therefore, to the extent it relies
upon the CWA, must be dismissed for Plaintiff's failure to comply with the
CWA’s notice provisions pursuant to clear Eleventh Circuit precedent.
(Doc. 20 at 12-13 [footnote omitted].)

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Bruner did not respond to portion of ARP’s Motion to Dismiss. (See generally doc.
23.) Therefore, the court finds that Bruner has abandoned his Clean Water Act claim and
such claim will be dismissed. Eternal World Television Network, Inc. v. Burwell, Civil
Action No. 13-0521-CG-C, 2014 WL 2738546, *2 (S.D. Ala. June 17, 2014)(citing
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005)). However, to the
extent Bruner’s Complaint alleges a state-law cause of action based on negligent violations
of state and federal water quality standards this claim remains pending. See generally
Cooper v. International Paper Co., 912 F. Supp. 2d 1307 (S.D. Ala. 2012).
CONCLUSION
For the foregoing reasons, the court is of the opinion that defendant’s Motion to
Dismiss plaintiff’s Complaint based on the doctrine of res judicata will be denied and its
Motion to Dismiss plaintiff’s Clean Water Act claim will be granted. An Order granting in
part and denying in part defendant’s Motion to Dismiss, (doc. 19), and dismissing plaintiff’s
Clean Water Act claim will be entered contemporaneously with this Memorandum Opinion.
DONE this 11th day of August, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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