LINCOLN v. FLORIDA GAS TRANSMISSION COMPANY LLC et al

Filing 61

ORDER ON SECOND #57 REPORT AND RECOMMENDATION - Defendants' motions to dismiss, ECF Nos. #43 & #44 , are GRANTED. The Clerk must enter judgment stating, "The third amended complaint is dismissed." The Clerk shall close the file. Signed by JUDGE MARK E WALKER on 7/7/2014. (tdl)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

WILLIAM F. T. LINCOLN,
Plaintiff,
v.

CASE NO. 4:13-cv-74-MW/CAS

FLORIDA GAS TRANSMISSION
CO., et al.,
Defendants.
___________________________/
ORDER ON SECOND
REPORT AND RECOMMENDATION
Plaintiff sues Defendants for what he perceives to be dangers created by two
natural gas pipelines which border his property. He does not allege a pipeline
rupture, leak or similar failure. Instead, Plaintiff alleges that the pipelines amount
to a “ticking time bomb” and he finds himself living “within a Zone of Extreme
Death Risk.” ECF No. 36. He sues Defendants for intentional infliction of
emotional distress and negligence.
The case is before this Court on the magistrate judge’s second report and
Recommendation, ECF No.57, objections, ECF No. 58, as well as Defendants’

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responses to Plaintiff's objections, ECF Nos. 59 & 60. This Court has reviewed de
novo the issues raised in the objections.
Plaintiff’s third amended complaint, ECF No. 36, suffers from a host of
infirmities – a number of which are addressed in the magistrate’s second report and
recommendation. The second report and recommendation is correct and is adopted
as this Court’s opinion. This order further elaborates.
As for intentional infliction of emotional distress, whether complained of
conduct is so atrocious and utterly intolerable as to state a claim is a question of
law. Construing the facts as pled in the light most favorable to Plaintiff, Plaintiff
fails to state a claim for intentional infliction of emotional distress against any of
the Defendants.
As for negligence, to the extent Plaintiff seeks damages for pain and
suffering, such claims are barred by the Impact Rule. To the extent Plaintiff claims
some diminution in the value of his property, Plaintiff’s claims fail because he has
failed to plead any facts giving rise to a duty. Plaintiff’s “zone of risk” analysis
simply has no application in the context of a claim for the diminution in the value
of property.
For these reasons and those set out in the second report and

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recommendation,
IT IS ORDERED:
The second report and recommendation, ECF No. 57, is accepted and
adopted, over Plaintiff's objections, as this Court’s opinion. Defendants’ motions
to dismiss, ECF Nos. 43 & 44, are GRANTED. The Clerk must enter judgment
stating, “The third amended complaint is dismissed.” The Clerk shall close the
file.
SO ORDERED on July 7, 2014.
s/Mark E. Walker
United States District Judge

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