Kay et al v. Peak Water Systems LLC et al

Filing 26

ORDER granting in part and denying in part 8 18 Motions to Dismiss for Failure to State a Claim. Foxborough's answer due by 12/06/2013. Signed by Judge D. P. Marshall Jr. on 11/15/2013. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF

MARVIN and LAURA KAY

No. 4:13-cv-487-DPM

v.

PEAK WATER SYSTEMS LLC and
FOXBOROUGH ENERGY COMPANY LLC

DEFENDANTS

ORDER

For the reasons explained in this Court's Order in a substantially similar
case, and with the Kays' agreement, the motions to dismiss are granted except
on the trespass and unjust-enrichment claims. Hill v. Southwestern Energy

Company, 2013 WL 5423847 (26 September 2013, E.D. Ark.); Ng 24 at 1. All
other claims are dismissed without prejudice. Like the plaintiffs in the Hill
case, the Kays have standing. Their allegations- injury-in-fact from the actual
migration of the waste fluid-are sufficient. E.g., Ng 1 at~~ 15, 23-25,27-32,
34,36-40, 48-50; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,591-92 (8th Cir.
2009).
On trespass: the Court has reconsidered the precedent argued in Hill,
as well as the additional authorities now advanced. The Court stands by its
earlier ruling. If Peak Water and Foxboro ugh are, as the Kays allege, using
the subsurface storage capacity of the Kays' property permanently, with

neither permission nor payment, and while paying other landowners for this
kind of use, Arkansas law would recognize a claim. It would likely be a
matter of trespass. RESTATEMENT (SECOND) OF TORTS§§ 158 & 159 (1965).
Alternatively, it would be a matter of unjust enrichment. RESTATEMENT
(THIRD) OF RESTITUTION AND UNJUST ENRICHMENT§ 40 (2011) and comment
c. The brine cases are illuminating but not dispositive. Jameson v. Ethyl

Corporation's no-trespass holding is inextricably intertwined with what was
essentially a common-law integration and unitization of the Kerlin Brine
Field. 271 Ark. 621, 628-29, 609 S.W.2d 346, 351 (1980). No comparable
circumstances are presented here.

***
Motions to dismiss, NQ 8 & 18, granted in part and denied in part on the
trespass and unjust-enrichment claims. Foxboro ugh's answer due by 6
December 2013.
So Ordered.
?

D.P. Marshall Jr.
United States District Judge

IS

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