Alford et al v. Chevron U.S.A. Inc. et al

Filing 165

ORDER AND REASONS - Defendants Chevron U.S.A. Inc., Chevron U.S.A. Holdings, Inc., Four Star Oil and Gas Company, and Gulf Oil Corporation (collectively "Chevron") move for a more definite statement under Federal Rule of Civil Procedure 12 (e) and also move to dismiss several of plaintiffs' claims. 38 Defendants Anadarko E&P Onshore, LLC; BP America Production Company and Pan American Petroleum Corporation (collectively "BP"); Hilcorp Energy I, L.P.; and French Gulf Coa st Partners also move for a more definite statement and move to dismiss, on substantially the same grounds as Chevron. 63 72 74 145 The Court DENIES defendants' motions for a more definite statement because plaintiffs' complaint is suff iciently detailed to allow defendants to prepare responsive pleadings. The Court GRANTS IN PART and DENIES IN PART defendants' motions to dismiss because plaintiffs have failed to plausibly allege necessary factual elements of certain claims. P laintiffs will be allowed twenty-one (21) days from the date of this order to amend their complaint. Failure to timely amend the complaint will result in dismissal of the foregoing claims with prejudice.. Signed by Chief Judge Sarah S. Vance on 4/22/14. (Reference: 13-5703)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CATHERINE P. ALFORD, ET AL.

CIVIL ACTION

VERSUS

NO: 13-5457
REF: 13-5703

ANADARKO E&P ONSHORE LLC, ET
AL.

SECTION: R

ORDER AND REASONS
Defendants Chevron U.S.A. Inc., Chevron U.S.A. Holdings,
Inc., Four Star Oil and Gas Company, and Gulf Oil Corporation
(collectively "Chevron") move for a more definite statement under
Federal Rule of Civil Procedure 12(e) and also move to dismiss
several of plaintiffs' claims.1 Defendants Anadarko E&P Onshore,
LLC; BP America Production Company and Pan American Petroleum
Corporation (collectively "BP"); Hilcorp Energy I, L.P.; and
French Gulf Coast Partners also move for a more definite
statement and move to dismiss, on substantially the same grounds
as Chevron.2 The Court DENIES defendants' motions for a more
definite statement because plaintiffs' complaint is sufficiently
detailed to allow defendants to prepare responsive pleadings. The
Court GRANTS IN PART and DENIES IN PART defendants' motions to

1

2

R. Doc. 38.

R. Doc. 63 (Anadarko); R. Doc. 72 (BP); R. Doc. 74
(Hilcorp); R. Doc. 145 (French).

dismiss because plaintiffs have failed to plausibly allege
necessary factual elements of certain claims. Plaintiffs will be
allowed an opportunity to amend their complaint.
I.

BACKGROUND

A.

Plaintiffs' Factual Allegations
Plaintiffs allege that they own and/or use certain property

in Township 21 South, Range 28 East, Plaquemines Parish,
Louisiana, in the Bastian Bay Field.3 They allege that defendants
engaged in oil and gas exploration and production activities that
caused harm to that property.4 The Louisiana Supreme Court has
called this type of lawsuit "legacy litigation" because it
"arise[s] from [oilfield] operations conducted many decades ago"
that left "an unwanted 'legacy' in the form of actual or alleged
contamination." Marin v. Exxon Mobil Corp., 48 So. 3d 234, 238
n.1 (La. 2010) (citing Loulan Pitre, Jr., "Legacy Litigation" and
Act 312 of 2006, 20 Tul. Envt. L.J. 347, 348 (2007)).
Plaintiffs have sued nine entities: Anadarko E&P Onshore,
LLC; BP American Production Company; Chevron U.S.A. Inc.; Chevron
U.S.A. Holdings, Inc.; Four Star Oil and Gas Company; French Gulf
Coast Partners; Gulf Oil Corporation; Hilcorp Energy I, L.P.; and
Pan American Petroleum Corporation. Anadarko is allegedly the

3

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 48.
4

Id. at 47.
2

successor in interest to RME Petroleum Company and Union Pacific
Resources Company; BP America, the successor in interest to Pan
American; Chevron U.S.A., the successor in interest to Gulf Oil
Corporation, Tidewater Oil Company, Getty Oil Company, TMR
Company, TMRI Holdings, Inc., and Chevron U.S.A. Holdings;
Chevron U.S.A. Holdings, the successor in interest to Texaco
Producing Inc.; and Four Star, the successor in interest to Getty
Oil.5 Plaintiffs allege that defendants, or companies to which
defendants are successors in interest, "conducted, directed,
controlled or participated in various oil and gas exploration and
production activities" on the property in their capacity "as
operators, and/or working interest owners, and/or mineral or
surface lessees, and/or mineral surface lease assignees, and/or
mineral sublessess, and/or servitude, executive interest or other
mineral interest owners, and/or personal or predial servitude
owners."6 More specifically, defendants allegedly constructed and
operated "various oil and gas facilities, including but not
limited to, pits, wells, sumps, pipelines, flowlines, tank
batteries, wellheads, measuring facilities, separators, and
injection facilities" on plaintiffs' property over the past
several years.7 These facilities have allegedly discharged

5

Id. at 49.

6

Id. at 50.

7

Id.
3

hazardous substances into plaintiffs' property.8 Plaintiffs also
allege that defendants have disposed of oilfield wastes in
"unlined earthen pits" on or near the property.9 According to the
complaint, waste in unlined pits, which contains numerous toxic
and hazardous substances, seeps into the surrounding area,
contaminating "both surface and subsurface soils and waters."10
The resulting pollution has allegedly "permanently damaged the
drinking water and other aquifers" under plaintiffs' property.11
The complaint alleges that "[d]efendants knew or should have
known that their day to day operations in the [Bastian Bay12]
Field would cause the soil, surface waters and groundwater of
plaintiffs' property to be contaminated" with hazardous
substances.13 But, rather than removing the substances,
defendants "chose to conceal and cover up their contamination."14
Specifically, defendants allegedly "bur[ied], hid[], or actively

8

Id. at 51.

9

Id.

10

Id.

11

Id. at 52.

12

The complaint identifies the field as the "Lawson
Field," but the Court assumes that the plaintiffs intended to
refer to the Bastian Bay Field, where their property is allegedly
located. See id. at 48 (alleging that plaintiffs "own and/or use"
property in the Bastian Bay Field).
13

Id. at 52.

14

Id.
4

conceal[ed] pollution" and failed to inform plaintiffs of the
potential harm the pollution could cause to plaintiffs'
property.15 Plaintiffs claim that, because of this alleged "fraud
and misrepresentation," they did not have actual or constructive
knowledge of defendants' pollution until less than a year before
they filed this lawsuit.16
Plaintiffs bring a host of claims based on the harms they
allegedly suffered from defendants' misconduct. They allege that
defendants committed negligence under Louisiana Civil Code
article 2315;17 a continuing tort and continuing trespass;18
breach of express contract;19 breach of implied obligations under
the Louisiana Civil and Mineral Codes;20 violations of Civil Code
article 667;21 and violations of Civil Code articles 2317 and
2322, which concern premises liability.22 Plaintiffs also allege
that defendants are liable for punitive damages for wanton or

15

Id. at 53.

16

Id.; see also id. ("[D]efendants have engaged in acts
that effectually have prevented plaintiffs from availing
themselves of the causes of action alleged herein.").
17

Id.

18

Id. at 54.

19

Id. at 54-55.

20

Id. at 56-60.

21

Id. at 55, 59.

22

Id. at 55.
5

reckless conduct under former Civil Code article 2315.323 and
civil fruits of trespass under Civil Code article 486.24 Finally,
plaintiffs claim that they are entitled to damages for unjust
enrichment if they have no other adequate remedy at law.25
Plaintiffs have attached to their complaint photographs of
the property at issue26 and several documents relating to the
chain of title to the property.27 These include the following
documents:
•

an oil and gas lease on the subject property in the
name of Tidewater Associated Oil Company, dated May 1,
1954;28

•

various conveyances of the interests encompassed within
that lease, which reflect that French, Union Pacific,
Chevron U.S.A. Inc., Texaco, Getty Oil, RME Petroleum,

23

Id. at 58-59.

24

Id. at 59.

25

Id. at 60. The Court does not interpret plaintiffs'
complaint to assert a standalone claim under La. Rev. Stat.
§ 30:29. That statute is "procedural, rather than substantive,
and does not create a right of action in favor of landowners."
Wagoner v. Chevron U.S.A. Inc., 55 So. 3d 12, 26 (La. Ct. App.
2010). Section 30:29 merely specifies the procedures applicable
to lawsuits alleging environmental damage; the substantive law is
supplied by the Louisiana Civil and Mineral Codes and other
applicable statutory law and jurisprudence. See La. Rev. Stat.
§ 30:29(H).
26

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 69-70.
27

Id. at 71-226.

28

Id. at 204.
6

and Hilcorp have held interests in the subject
property;29
•

a 1997 grant of leave to Union Pacific to operate a
well on the property;30

•

a 2005 grant of leave to Hilcorp to operate a well on
the property;31

•

documentation of the merger between Chevron U.S.A.,
Inc. and Gulf Oil;32

•

documentation of the merger between Tidewater and Getty
Oil;33

•

documentation reflecting that Union Pacific changed its
name to RME Petroleum in 2000;34

•

a utilization agreement concerning the subject property
executed by Tenneco, Inc., Getty Oil, Pan American,
Phillips Petroleum Company, Callery Properties, Inc.,
and Henderson Oil Company, Inc.;35 and

•

a utilization agreement concerning the subject property
executed by Pan American, Tidewater, and Gulf Oil.36

29

Id. at 86-139, 212-222.

30

Id. at 71-85.

31

Id. at 209-11.

32

Id. at 140.

33

Id. at 195-96.

34

Id. at 223-26.

35

Id. at 141-93.

36

Id. at 197-203. Pages 205-07 of the state court record
are unreadable.
7

Although plaintiffs repeatedly refer to "leases" and
"servitude agreements" (in the plural) in their complaint,37 the
only such agreement attached to the complaint is the 1954 lease.
Because plaintiffs have alleged no facts plausibly suggesting
that there are any other leases or servitudes applicable to the
property, the Court will limit its focus in this order to the
1954 lease granted to Tidewater.38
Plaintiffs have also attached the Operator History of the
property to the complaint.39 That document reflects that
Tidewater, Getty Oil, and Tenneco, Inc. have operated four
different wells on plaintiffs' property.40 Operations on well
number 70872 were originally permitted on June 17, 1958, and
concluded on August 2, 1986, when the well was plugged and
abandoned.41 Operations on well number 73091 were originally
permitted on December 4, 1958, and concluded on August 2, 1986,

37

See, e.g., id. at 55 ("Defendants are liable for the
tortious breach of contracts sued upon in this petition. These
contracts may include mineral and surface leases, servitude
agreements, assignments, mineral and surface subleases, right of
way agreements, joint operating agreements, unit agreements,
working interest agreements, use agreements, farmout agreements,
farming agreements, and unit or pooling agreements.").
38

Id. at 204.

39

See id. at 24.

40

Id. at 32-33.

41

Id. at 32.
8

when the well was plugged and abandoned.42 Operations on well
number 88536 were originally permitted on January 22, 1962, and
concluded on September 18, 1976, when the well was plugged and
abandoned.43 Operations on well number 91102 were permitted on
July 9, 1962, and concluded on September 18, 1976, when the well
was plugged and abandoned.44
B.

Procedural History
Plaintiffs filed this lawsuit on May 3, 2013 in Louisiana

state court.45 They amended their petition on July 30 to add an
additional plaintiff, River Realty, L.L.C., and to include the
Operator History of the wells on their property.46
Defendants removed the suit to this Court on August 29,
2013.47 On September 12, the Court consolidated this action with
Civil Action No. 13-5457, Alford et al. v. Chevron U.S.A., Inc.,
et al.48 Defendants in this case, No. 13-5464, now move for a

42

Id.

43

Id.

44

Id. at 33.

45

Id. at 47.

46

Id. at 23-46.

47

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1.
48

R. Doc. 35. The Court remanded the lead case, No. 135457, to Louisiana state court on January 6, 2014. R. Doc. 158.
9

more definite statement under Rule 12(e) and move to dismiss
under Rule 12(b)(6).
II.

MOTIONS FOR A MORE DEFINITE STATEMENT

A.

Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure

provides that a plaintiff's complaint must contain a "short and
plain statement of the claim showing that the pleader is entitled
to relief." Under Rule 8, a complaint need not provide "detailed
factual allegations," but must simply provide the plaintiff's
grounds for entitlement to relief. Cuvillier v. Taylor, 503 F.3d
397, 401 (5th Cir. 2007). A district court will grant a party's
motion for a more definite statement pursuant to Rule 12(e) when
the pleading at issue "is so vague or ambiguous that the party
cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). The
motion must state the defects in the pleading and the details
desired. See id.
Given the liberal pleading standard set forth in Rule 8(a),
courts do not favor Rule 12(e) motions. Mitchell v. E-Z Way
Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959); Who Dat Yat
Chat, LLC v. Who Dat, Inc., Civil Action Nos. 10-1333, 10-2296,
2012 WL 2087438, at *6 (E.D. La. June 8, 2012) (following
Mitchell); EEOC v. Alia Corp., 842 F. Supp. 2d 1243, 1250 (E.D.
Cal. 2012); see also 5C Charles Allen Wright, et al., Federal
Practice and Procedure § 1377 (3d ed. 2010) ("[A]s a result of
10

the generally disfavored status of these motions, the proportion
of Rule 12(e) requests granted by the district courts appears to
have remained quite low."). Motions for a more definite statement
are "not to be used to assist in getting the facts in preparation
for trial," because "[o]ther rules relating to discovery,
interrogatories and the like exist for this purpose." Mitchell,
269 F.2d at 132; see also Coleman v. H.C. Price Co., Civil Action
No. 11-2937, 2012 WL 1118775, at *6 (E.D. La. Apr. 3, 2012) ("The
availability of extensive discovery is another factor in the
disfavored status of the motion for more definite statement. . .
. When a defendant needs additional information to prepare for
trial, discovery is the proper procedure instead of a Rule 12(e)
motion."). At the same time, the Supreme Court has noted that
"[i]f a pleading fails to specify the allegations in a manner
that provides sufficient notice," then a Rule 12(e) motion may be
appropriate. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
(2002).

B.

Discussion
Chevron argues that plaintiffs must provide a more definite

statement because they have not sufficiently articulated "how the
property became contaminated, the extent and location of any
contamination, and what specific facilities were operated by
Chevron that allegedly caused the contamination."49 Chevron also
49

R. Doc. 38-1 at 9.
11

complains that plaintiffs improperly lump all of the defendants
together, alleging that each defendant is liable for all of the
wrongdoing outlined in the complaint, rather than stating which
defendant is responsible for which acts of contamination.
Finally, Chevron notes that plaintiffs have not alleged "when and
how they acquired their interest in the property," or when
specific leaks, spills, or other harmful discharges occurred.50
Chevron specifically requests that plaintiffs provide more
details concerning their claim for punitive damages under Civil
Code article 2315.3 and their claims for land loss, subsidence
and backfilling of canals. The other defendants make essentially
the same arguments as Chevron in contending that plaintiffs must
provide a more definite statement.
The Court finds that plaintiffs' complaint is sufficiently
detailed to allow defendants to prepare a responsive pleading. In
the complaint, plaintiffs have identified the property at issue
by township and range, and the operational area at issue as the
Bastian Bay Field. They have identified the wells operated on
that property by operator and serial number. Plaintiffs allege
that this property was contaminated by pollution that resulted
from defendants' activities in constructing and operating oil and
gas exploration and production facilities, and from defendants'
storage of the resulting waste in unlined earthen pits.

50

Id.
12

Plaintiffs have explained why the materials discharged on their
property are harmful, and they have given specific examples of
ways in which the property has been damaged.51 Finally,
plaintiffs have set forth the legal theories upon which they
rely, and the specific remedies sought. Several courts in this
circuit have denied motions for a more definite statement in
oilfield legacy cases when the plaintiffs included analogous
details in their complaint. See Constance v. Austral Oil
Exploration Co., Nos. 2:12-CV-1252, 2:12-CV-1253, 2013 WL
6578178, at *4 (W.D. La. Dec. 13, 2013) (finding complaint in
oilfield legacy suit sufficient because it listed "the identities
of all parties . . . to the case, . . . detailed descriptions of
the property at issue . . .[,] the legal theories under which
recovery is sought, . . . the types of damages sought," and
"specific serial numbers of wells worked by specific
defendants"); Martin v. Tesoro Corp., No. 2:11-CV-1413, 2012 WL
1866841, at *2 (W.D. La. May 21, 2012); Gaspard One, L.L.C. v. BP
Am. Prod. Co., Civil Action No. 07-1551, 2008 WL 863987, at *3
(W.D. La. Mar. 31, 2008); Sweet Lake Land & Oil Co. v. Exxon
Mobil Corp., No. 2:09-CV-01100, 2009 WL 4716090, at *3 (W.D. La.
Dec. 9, 2009); Brownell Land Co., L.L.C. v. Ranger Oil Co., No.
Civ.A. 05-0142, 2006 WL 278255, at *1-2 (E.D. La. Feb. 2, 2006).
51

See, e.g., Alford et al. v. Anadarko E&P Onshore, LLC
et al., No. 2:13-cv-05703, R. Doc. 1-3 at 52 (alleging that
defendants' pollution has "permanently damaged the drinking water
and other aquifers underlying plaintiffs' property").
13

The additional information that defendants seek is properly
addressed to discovery. See Mitchell, 269 F.2d at 132; Gaspard
One, 2008 WL 863987, at *3.

III. MOTIONS TO DISMISS
A.

Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

must plead enough facts "to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). A claim is facially plausible when the plaintiff
pleads facts that allow the court to "draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court
must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. US
Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009). But the Court
is not bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a
"sheer possibility" that the plaintiff's claim is true. Id. It
need not contain detailed factual allegations, but it must go
beyond labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Id. In other words, the face of
the complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of
14

each element of the plaintiff's claim. Lormand, 565 F.3d at 257.
If there are insufficient factual allegations to raise a right to
relief above the speculative level, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,
the claim must be dismissed. Twombly, 550 U.S. at 555.

B.

Discussion
1.

Individual Conduct

BP and Anadarko argue that the allegations against them
should be dismissed because plaintiffs have alleged no facts
suggesting that they engaged in any actual conduct on the
property in question.52 Plaintiffs concede in their opposition
that Anadarko and BP did not conduct any operations on or near
plaintiffs' property and that they have not alleged in the
complaint that those defendants engaged in any specific
conduct.53 In fact, the Operator History attached to plaintiff's
complaint suggests that the Chevron entities are the only
defendants that actually conducted oil and gas exploration and
production activities on plaintiffs' property.54 Plaintiffs have

52

See R. Doc. 63-1 at 2; R. Doc. 72-2 at 4.

53

R. Doc. 76 at 9-10.

54

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 32-33. The only entities listed as
operators on plaintiffs' property are Tidewater, Getty Oil, and
Tenneco. Id. Tidewater and Getty Oil are allegedly predecessors
in interest to the Chevron defendants, and Tenneco is not named
in the complaint.
15

pled no facts plausibly suggesting that the other defendants
engaged in any conduct that could have given rise to plaintiffs'
alleged injuries. The conclusory and overly general allegations
in the complaint that "defendants" engaged in activities that
damaged plaintiffs' property are insufficient. See Iqbal, 556
U.S. at 678 (Rule 8 requires "more than an unadorned, thedefendant-unlawfully-harmed-me accusations," and a complaint
containing "'naked assertion[s]' devoid of 'further factual
enhancement'" must be dismissed (quoting Twombly, 550 U.S. at
557) (alteration in original)); cf. Old Time Enters., Inc. v.
Int'l Coffee Corp., 862 F.2d 1213, 1219 (5th Cir. 1989) (finding
complaint defective because it contained "numerous unclarified
generalities and conclusory allegations," "frequent . . .
alternative and/or allegations," and "abundant wholly general
cross-referencing").
Plaintiffs note, however, that the documents attached to the
complaint reflect that Pan American, to which BP is alleged to be
a successor in interest, held certain interests in the lease in
question.55 Those documents also indicate that RME Petroleum,
allegedly a predecessor in interest to Anadarko, held leasehold

55

See id. at 141-93, 197-203 (reflecting that Pan
American was a party to unitization agreements concerning the
subject property).
16

interests in plaintiffs' property,56 as did French,57 Hilcorp,58
and the Chevron entities.59 Plaintiffs argue that defendants'
leasehold interests in plaintiffs' property conferred on
defendants "[t]he obligation to restore [the] property . . .,
either explicitly or impliedly."60
Plaintiffs are correct that defendants have certain
obligations to plaintiffs by virtue of the mineral lease referred
to in the complaint and attached documents. Therefore, some of
plaintiffs' claims against Anadarko, BP, Hilcorp, and French are
potentially viable, notwithstanding the lack of allegations that
those defendants engaged in actual conduct on or near plaintiffs'
property. For many of plaintiffs' claims, though, the lack of
allegations that those defendants engaged in any affirmative
conduct on or near the property is fatal. These issues are
discussed in greater detail below.
2.

Prematurity

Defendants argue that plaintiffs' claims for restoration of
their property are premature to the extent that the lease in
question is still in effect. Defendants are correct, at least in

56

See id. at 212-22.

57

See id. at 86-113.

58

See id. at 209-22.

59

See id. at 114-34.

60

R. Doc. 76 at 10.
17

part. Under Civil Code article 2683(3), a lessee is bound "[t]o
return the thing at the end of the lease in a condition that is
the same as it was when the thing was delivered to him, except
for normal wear and tear." This obligation arises "only at the
end of the lease." Marin v. Exxon Mobil Corp., 48 So. 3d 234, 256
(La. 2010). Plaintiffs brought suit "under the mineral and
surface leases and use agreements that apply to the property at
issue."61 Plaintiffs' use of the present tense suggests that the
lease in question is still extant, and nowhere do they allege
that the lease has expired. Accordingly, plaintiffs are precluded
from bringing claims for restoration under article 2683(3).
Plaintiffs correctly note that other obligations imposed on
lessees under Civil Code articles 2683, 2686, 2688, and 2692 and
articles 11 and 122 of the Mineral Code "continue throughout the
term of the lease," such that "a lessor need not wait until the
end of the lease to sue a lessee for damages to his property."
Marin, 48 So.3d at 256. Thus, plaintiffs' claims against
defendants under those articles are not foreclosed on the grounds
that the lease has not expired. See, e.g., Hardee v. Atl.
Richfield, 926 So. 2d 736, 741-42 (La. Ct. App. 2006) (citing
Dore Energy Corp. v. Carter-Langham, Inc., 901 So. 2d 1238 (La.
Ct. App. 2005)).

61

Alford et al. v. Chevron U.S.A. et al., No. 2:13-cv5703, R. Doc. 1-3 at 56 (emphasis added).
18

BP also argues that "plaintiffs' claims are premature to the
extent that any applicable leases relating to the subject
property . . . contain notice and cure provisions."62 But, even
assuming that BP is correct, BP has pointed to nothing in the
complaint or attached documentation suggesting that the lease in
question contains a notice and cure provision. Accordingly, the
Court does not find plaintiffs' claims premature on this basis.
Cf. Hardee, 926 So. 2d at 739 (overruling defendant's exception
of prematurity because the defendants had "introduced no evidence
in support of their exception" and because plaintiff's complaint
did not indicate that the lawsuit was premature).
3.

Fraud

Plaintiffs have alleged that defendants committed "fraud and
misrepresentation" by hiding the pollution that their oil and gas
exploration and production activities produced and by failing to
inform plaintiffs of the potential harm that the pollution could
cause.63 In other words, plaintiffs allege that defendants
fraudulently concealed their unlawful conduct, thereby
"prevent[ing] plaintiffs from availing themselves of the causes
of action alleged [in the complaint]."64 Cf. Marin, 48 So. 2d at

62

R. Doc. 72-2 at 5.

63

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-5703, R. Doc. 1-3 at 53.
64

Id.
19

251-52 (if defendant engages in fraudulent acts or other "ill
practices" that "tend to hinder, impede, or prevent the plaintiff
from asserting his cause of action," doctrine of contra non
valentem will apply to prevent prescription from running);
Whitnell v. Silverman, 592 So. 2d 429, 431 (La. Ct. App. 1991)
(same). Defendants contend that plaintiffs' fraud allegations are
too vague and improperly fail to differentiate among the various
defendants.
Defendants are correct. Under Rule 9(b), a party alleging
fraud or mistake "must state with particularity the circumstances
constituting fraud or mistake." The Fifth Circuit "interprets
Rule 9(b) strictly, requiring a plaintiff pleading fraud 'to
specify the statements contended to be fraudulent, identify the
speaker, state when and where the statements were made, and
explain why the statements were fraudulent.'" Herrmann Holdings
Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 564-65 (5th Cir. 2002)
(quoting Nathenson v. Zonagen Inc., 267 F.3d 400, 412 (5th Cir.
2001)). Allegations of fraudulent concealment are subject to the
requirements of Rule 9(b). See Summerhill v. Terminix, Inc., 637
F.3d 877, 880 (8th Cir. 2011); Summer v. Land & Leisure, Inc.,
664 F.2d 965, 970–71 (5th Cir. 1981); In re Pool Prods. Dist.
Mkt. Antitrust Litig., MDL No. 2328, --- F. Supp. 2d ----, 2013
WL 6670020, at *21 (E.D. La. Dec. 18, 2013).
Plaintiffs have failed to satisfy this strict pleading
standard. They allege generally that "defendants (or their
20

representatives)" engaged in "acts of fraud and
misrepresentation" including "burying, hiding or actively
concealing pollution" and failing to inform plaintiffs of the
deleterious consequences that could result from that pollution.65
Courts in this circuit have found virtually identical allegations
of fraud to be deficient under the Fifth Circuit's interpretation
of Rule 9(b) because these allegations fail to identify when the
allegedly fraudulent conduct took place and do not "distinguish
among . . . defendant[s] . . . [or] set forth each defendant's
responsibility for the allegedly fraudulent activities." Martin,
2012 WL 1866841, at *4; accord Constance, 2013 WL 6578178, at *6.
Group pleading is not permitted under Rule 9(b); instead, the
plaintiff must plead specific facts describing the fraud
allegedly committed by each defendant. Lang v. DirecTV, 735 F.
Supp. 2d 421, 437 (E.D. La. 2010) (complaint alleging fraud may
not group the defendants together, but must plead specific facts
that satisfy the Rule 9(b) requirements as to each defendant);
see also In re Pool Prods., 2013 WL 6670020, at *23. Plaintiffs
have failed to do so here.
Plaintiffs contend that their allegations of concealment are
adequate "because the defendants' oil and gas exploration and
production activities are peculiarly within the defendants'

65

Id.
21

knowledge."66 The Court is not persuaded. Although it is true
that fraud may be pled on information and belief when the facts
constituting the fraud are peculiarly within the defendants'
knowledge, the plaintiff must still "set[] forth the factual
basis for his belief." United States ex rel. Russell v. Epic
Healthcare Mgmt. Grp., 193 F.3d 304, 308 (5th Cir. 1999),
overruled on other grounds by United States ex rel. Eisenstein v.
City of New York, 556 U.S. 928 (2009). Relaxation of the Rule
9(b) requirements "must not be mistaken for license to base
claims of fraud on speculation and conclusory allegations."
United States ex rel. Thompson v. Columbia/HCA Healthcare Corp.,
125 F.3d 899, 903 (5th Cir. 1997) (quoting Tuchman v. OSC
Commc'ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)). Here,
plaintiffs have alleged no facts, even on information and belief,
describing specific acts of fraud committed by specific
defendants. That distinguishes this case from Guste v. Shell Oil
Co., 161 F.R.D. 329 (E.D. La. 1995), on which plaintiffs rely. In
Guste, the plaintiffs alleged that Shell undertook certain longterm environmental studies, but failed to inform the plaintiffs
of the results, which indicated that pollution caused by Shell
"had ruined their property and destroyed its economic and social
value." Id. at 332. These allegations were sufficient under Rule
9(b), because plaintiffs alleged that a specific defendant failed

66

R. Doc. 76 at 25.
22

to inform the plaintiffs of a specific series of test results
relating to pollution on the plaintiffs' property. Here, in
contrast, plaintiffs' complaint is bereft of any such
specificity.
Plaintiffs also contend in their response that the "basis"
for their concealment allegations is Louisiana Civil Code article
2688, which provides that a lessee must notify his lessor if and
when the property leased is damaged or requires repair. But this
contention is not accurate; plaintiffs' complaint alleges
fraudulent concealment in an effort to toll the statute of
limitations, and then separately alleges that defendants violated
article 2688 by failing "to notify plaintiffs of the
contamination on their property."67 And, in any event, "Rule 9(b)
applies by its plain language to all averments of fraud, whether
they are part of a claim of fraud or not." Lone Star Ladies Inv.
Club v. Schlotzsky's Inc., 238 F.3d 363, 368 (5th Cir. 2001); see
also Martin, 2012 WL 1866841, at *3 (dismissing fraud allegations
"offered to overcome a potential defense of prescription" because
they had not been pled with sufficient particularity). In other
words, plaintiffs cannot do an end-run around the requirements of
Rule 9(b) by giving their fraud claim a different label.
Regardless of the "basis" of plaintiffs' allegations of

67

See Alford et al. v. Chevron U.S.A. et al., No. 2:13cv-5703, R. Doc. 1-3 at 53, 64.
23

fraudulent conduct, those allegations must satisfy Rule 9(b), and
here, they do not.
4.

Claims for Breach of Express Lease Terms

Plaintiffs have alleged that defendants' actions in
polluting plaintiffs' land and failing to restore that land to
its original condition constitute a breach of the express
provisions of the mineral lease applicable to plaintiffs'
property.68 But plaintiffs concede in their opposition that
"[t]he mineral lease at issue in this case contains no express
language that addresses the issue of restoration."69 Plaintiffs
have pointed to no other provision of the lease, or of any other
agreement, that defendants breached through the conduct alleged
in the complaint. Accordingly, the Court finds that plaintiffs
have failed to state a claim for breach of an express contractual
provision.
5.

Claims for Breach of Implied Obligations under the 1954
Lease

Plaintiffs also allege that defendants' actions in polluting
plaintiffs' land and failing to restore that land to its original
condition constitute a breach of defendants' implied obligations
as lessees under the Louisiana Civil and Mineral Codes.

68

See id. at 58 ("Defendants specifically allege that
defendants have violated the express . . . obligations of surface
leases that apply to the property subject to this suit.").
69

R. Doc. 76 at 25-26.
24

a.

Overview of the Applicable Codal Provisions

Plaintiffs have alleged violations of the following codal
provisions concerning implied obligations of lessees: Civil Code
articles 2683, 2686, 2688, and 2692, which regulate the
obligations of the lessor and the lessee; Mineral Code article
11, which describes the correlative rights of landowners and
owners of mineral rights; and Mineral Code article 122, which
concerns a mineral lessee's obligation to act as a reasonably
prudent operator.
Article 2683 provides that a lessee
is bound:
(1) To pay the rent in accordance with the agreed terms;
(2) To use the thing as a prudent administrator and in
accordance with the purpose for which it was leased; and
(3) To return the thing at the end of the lease in a
condition that is the same as it was when the thing was
delivered to him, except for normal wear and tear or as
otherwise provided hereafter.
The qualifier "except for normal wear and tear" is important,
because "[t]he lessor may be considered to have given his assent
to the 'wear and tear' normally involved in exercising the rights
granted." Terrebonne Parish Sch. Bd. v. Castex Energy, Inc., 893
So. 2d 789, 800 (La. 2005). Thus, for example, a lessor who
leases his land to a lessee for purposes of drilling for oil may
not recover "for damages which are inflicted without negligence
upon the lessor's property in the course of necessary drilling
operations." Id. at 799 (quoting Rohner v. Austrl. Oil Co., 104
So. 2d 253, 255 (La. Ct. App. 1958)). Absent an express provision
25

in the mineral lease requiring the lessee to restore the property
to its original condition, the lessee need restore the surface to
its original condition only if "there is evidence of unreasonable
or excessive use." Id. at 792.
Articles 2686, 2688, and 2692 expound upon the "prudent
administrator" standard set forth in article 2683. Article 2686
provides that a lessor "may obtain injunctive relief, dissolution
of the lease, and any damages he may have sustained" if the
lessee uses the leased property "for a purpose other than that
for which it was leased or in any manner that may cause damage"
to the property. Article 2688 requires the lessee to notify the
lessor "without delay" when the leased property is damaged or
requires repair. Finally, article 2692 provides that
[t]he lessee is bound to repair damage to the thing
caused by his fault or that of persons who, with his
consent, are on the premises or use the thing, and to
repair any deterioration resulting from his or their use
to the extent it exceeds the normal or agreed use of the
thing.
Mineral Code article 11, which states the "foundational duty
of parties in a case of mineral rights," Walton v. Burns, --- So.
3d ---, 2013 WL 163739, at *9-10 (La. Ct. App. Jan. 16, 2013),
provides generally that "[t]he owner of land burdened by a
mineral right and the owner of a mineral right must exercise
their respective rights with reasonable regard for those of the
other." La. Rev. Stat. § 31:11. Article 122 of the Mineral Code

26

defines this obligation more specifically in the context of
mineral lessees:
A mineral lessee is not under a fiduciary obligation to
his lessor, but he is bound to perform the contract in
good faith and to develop and operate the property leased
as a reasonably prudent operator for the mutual benefit
of himself and his lessor. Parties may stipulate what
shall constitute reasonably prudent conduct on the part
of the lessee.
La. Rev. Stat. § 31:122. The Louisiana Supreme Court has held
that Mineral Code article 122 "simply adopts the good
administrator standard of La. Civ. Code art. [268370], applicable
to all leases, to the specific context of a mineral lease."
Castex, 893 So. 2d at 797; see also State v. La. Land &
Exploration Co., 110 So. 3d 1038, 1045 & n.9 (La. 2013) ("Mineral
leases are construed as leases generally, and the provisions of
the Civil Code applicable to ordinary leases, when pertinent, are
applied to mineral leases." (quoting Caskey v. Kelly Oil Co., 737
So. 2d 1257, 1262 (La. 1999))).71
The obligations imposed upon mineral lessees by the Civil
and Mineral Codes are indivisible. See Sweet Lake Land & Oil Co.

70

At the time of the Castex opinion, Civil Code article
2710 governed the obligations of the lessee. The provision was
moved to article 2683 as part of the 2004 revisions to the Civil
Code. See La. Civ. Code art. 2683 cmt.
71

The Mineral Code explicitly provides that its
provisions "are supplementary to those of the Louisiana Civil
Code and are applicable specifically to the subject matter of
mineral law." La. Rev. Stat. § 31:2. That is, the Civil Code
still applies to mineral law cases, so long as its provisions do
not conflict with the provisions of the Mineral Code. See id.
27

LLC v. Exxon Mobil Corp., No. 2:09 CV 1100, 2011 WL 5825791, at
*5 (W.D. La. Nov. 16, 2011) (obligation to restore leased
premises under the Civil and Mineral codes is indivisible because
"[p]roperty is either restored or it is not"); Questar
Exploration & Prod. Co. v. Woodard Villa, Inc., 123 So. 3d 734,
738 & n.11 (La. Ct. App. 2013) (noting that mineral leases are
"presumptively indivisible"); Matthews v. Goodrich Oil Co., 471
So. 2d 938, 944 (La. Ct. App. 1985) ("[T]he concept of the
indivisible nature of mineral leases and the effects thereof . .
. have existed in Louisiana jurisprudence for a number of
years."); Nunley v. Shell Oil Co., 76 So. 2d 111, 112-13 (La. Ct.
App. 1954) ("[T]he Supreme Court of [Louisiana] has established
the general rule that an oil and gas lease is an indivisible
obligation . . . ."); see also La. Civ. Code art. 1815; Hunter v.
Shell Oil Co., 31 So. 2d 10, 902 (La. 1947) ("The law is well
settled that the lessee's obligation to drill a well is
indivisible in its nature."). When an obligation is indivisible,
all obligors are solidarily liable for the full performance of
the obligation. La. Civ. Code art. 1818; Sweet Lake, 2011 WL
5825791, at *5. All of the named defendants either have held
leasehold interests in the property in question, or are
successors in interest to entities who have held such interests.
See supra Section III.B.1. Accordingly, all defendants are liable
to plaintiffs if any of the lessees to the property have breached
their codal obligations to plaintiffs. See La. Rev. Stat.
28

§ 31:128 ("To the extent of the interest acquired, an assignee or
sublessee acquires the rights and powers of the lessee and
becomes responsible directly to the original lessor for
performance of the lessee's obligations."); Sweet Lake, 2011 WL
5825791, at *5-7.
b.

Civil Code Article 2683 and Mineral Code Articles 11
and 122

Plaintiffs have not alleged that defendants failed to pay
any applicable rent. Accordingly, plaintiffs have no claim under
Civil Code article 2683(1). Moreover, as explained above,
plaintiffs' claims against defendants for restoration under Civil
Code article 2683(3) are premature because plaintiffs' complaint
suggests that the applicable lease is still in effect.
Civil Code article 2683(2) and Mineral Code articles 11 and
122, in essence, collectively require that mineral lessees use
the leased property as a "prudent administrator." See La. Land &
Exploration Co., 110 So. 3d at 1045-47. Plaintiffs have plausibly
alleged that defendants violated this codal duty, for the
following reasons.
The complaint alleges that the Chevron entities conducted
oil and gas production and exploration activities on the property
during the period of the lease. The Operator History attached to
plaintiffs' complaint bolsters this allegation. It shows that
Tidewater and Getty Oil, allegedly predecessors in interest to

29

Chevron U.S.A., Inc.,72 operated four wells in the Bastian Bay
Field in the 1960s and 1970s.73 The complaint alleges sufficient
facts to plausibly suggest that Tidewater and Getty Oil
negligently conducted those operations and improperly stored the
resulting waste, thereby causing harm to plaintiffs' property.74
Therefore, plaintiffs have plausibly alleged that Chevron,
through its predecessors in interest, violated its codal duties
as a lessee to act as a "prudent administrator" and to refrain
from using the property unreasonably and excessively. Cf. Marin,
48 So. 2d at 242 (noting the trial court's finding that
defendant's pollution of plaintiffs' property through oil and gas
exploration and production activities "was 'unreasonable and
constitutes negligent operations by the lessee,' resulting in
breach of contract"). Defendants, as co-lessees of the property,
are thus potentially liable to plaintiffs for that violation.

72

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 49.
73

Id. at 32-33.

74

See, e.g., id. at 52 ("Defendants knew or should have
known that their day to day operations in the [Bastian Bay] Field
would cause the soil, surface waters and groundwater of
plaintiffs' property to be contaminated with [toxic] substances .
. . . Defendants' pollution has now permanently damaged the
drinking water and other aquifers underlying the petitioners'
property."); id. at 56 ("Defendants' conduct of their oil and gas
exploration and production activities and the associated
discharge, disposal or storage of oil field waste on plaintiffs'
property have created a continuing, ongoing and damaging nuisance
to plaintiffs and plaintiffs' property.").
30

c.

Civil Code Article 2686

The analysis of plaintiffs' article 2686 claim is similar to
that of their article 2683(2) claim. Plaintiffs have plausibly
alleged that Chevron used the property "in a manner that may
cause damage to" it, so they have stated a viable claim against
defendants for violation of their duties under article 2686.
d.

Civil Code Article 2688

Article 2688 is not applicable to this case because it was
enacted in 2005, many years after the lease in question was
executed. "[L]aws existing at the time a contract is entered into
are incorporated into and form a part of the contract as though
expressly written." Green v. New Orleans Saints, 781 So. 2d 1199,
1203 (La. 2000) (citing Bd. of Comm'rs of Orleans Levee Dist. v.
Dep't of Natural Res., 496 So. 2d 281, 294 (La. 1986)).
Conversely, a statute "not in effect at the time of contracting .
. . cannot be retroactively applied to alter the obligations of
[a] contract, even though the act giving rise to the obligation
occurs after the effective date of the statute." Block v.
Reliance Ins. Co., 433 So. 2d 1040, 1044 (La. 1983) (citing La.
Const. art. 1, § 23); accord State Dep't of Transp. & Dev. v.
Berry, 609 So. 2d 1100, 1102 (La. Ct. App. 1992). Article 2688,
which was enacted after the 1954 lease was executed, "cannot be
retroactively applied to alter the obligations of that contract."
Block, 433 So. 2d at 1044. Under the law as it existed in 1954,

31

the lessees of plaintiffs' property had no duty analogous to that
imposed by article 2688, and consequently those lessees have no
such duty today. Plaintiffs' claim under article 2688 thus fails.
e.

Civil Code Article 2692

Plaintiffs have plausibly alleged that defendants violated
their duty as lessees under article 2692. The complaint
sufficiently alleges facts suggesting that Chevron negligently
conducted oil and gas exploration and production operations on
plaintiffs' property and improperly stored the resulting waste,
which would trigger defendants' duty as co-lessees "to repair any
deterioration resulting from [the lessee's] use to the extent it
exceeds the normal or agreed use" of the property. La. Civ. Code
art. 2692; cf. Marin, 48 So. 2d at 242.
6.

Claims for Breach of Implied Obligations of Mineral
Servitude Holders

Plaintiffs also allege that defendants' actions in polluting
plaintiffs' land and failing to restore that land to its original
condition constitute a breach of defendants' implied obligations
as mineral servitude holders under the Civil and Mineral Codes.
a.

Overview of the Applicable Codal Provisions

Plaintiffs have alleged violations of the following codal
provisions concerning implied obligations of servitude holders:
Louisiana Civil Code articles 576 and 577, which regulate
personal servitudes of use; Mineral Code article 11, which
32

describes the correlative rights of landowners and owners of
mineral rights; and Mineral Code article 22, which concerns the
rights and obligations of a mineral servitude owner.
Civil Code articles 576 and 577 apply to personal servitudes
of use. See La. Civ. Code art. 645. Under article 576, the holder
of a personal servitude "is answerable for losses resulting from
his fraud, default, or neglect," and under article 577, he is
also "responsible for ordinary maintenance and repairs for
keeping the property subject to the [servitude] in good order."
As stated above, Mineral Code article 11 provides that
"[t]he owner of land burdened by a mineral right and the owner of
a mineral right must exercise their respective rights with
reasonable regard for those of the other." La. Rev. Stat.
§ 31:11. Mineral Code article 22 defines this obligation more
specifically in the context of mineral servitudes, providing that
"[t]he owner of a mineral servitude . . . is entitled to use only
so much of the land as is reasonably necessary to conduct his
operations," and "is obligated, insofar as practicable, to
restore the surface to its original condition at the earliest
reasonable time." La. Rev. Stat. § 31:22.
b.

Defendants' Obligations as Servitude Holders

Plaintiffs never allege in their complaint that any of the
defendants held a mineral servitude on the property in question,
and none of the documents attached to plaintiffs' complaint

33

suggest that any defendant ever owned such an interest. Thus,
plaintiffs cannot state a claim against any of the defendants
under the codal provisions governing the obligations of servitude
holders. See, e.g., Walton, 2013 WL 163739, at *9-11 (noting that
Mineral Code article 22, entitled "Certain rights and obligations
of the mineral servitude owner," is, by its express terms,
applicable only to mineral servitude holders).
7.

Claims for Damages for Land Loss, Subsidence, and the
Cost of Backfilling of Canals and Other Excavations

In their prayer for relief, plaintiffs request "damages for
land loss, subsidence, and the cost of backfilling of canals and
other excavations."75 But plaintiffs plead no facts supporting
such a claim, and cite to no contracts or state or federal law
imposing a duty on defendants to conduct this sort of
remediation. As explained above, under Louisiana law, lessees
have a duty to restore property to its original condition, minus
normal wear and tear, at the conclusion of the lease, and to
refrain from using the property unreasonably or excessively
during the pendency of the lease. But plaintiffs have alleged no
facts plausibly suggesting that defendants, or defendants'
predecessors in interest, engaged in activities that caused land
loss or subsidence during the term of the lease in question.
Indeed, plaintiffs have failed to plausibly allege that land loss

75

Id. at 65.
34

or subsidence even occurred during the term of the lease.
Accordingly, this claim is deficient and must be dismissed.
8.

Tort Claims

Plaintiffs have alleged that defendants committed negligence
under Louisiana Civil Code article 2315, a continuing tort under
Louisiana law, and a violation of § 324A of the Restatement
(Second) of Torts, as interpreted by Louisiana jurisprudence.
Plaintiffs also claim that defendants are liable for punitive
damages for their tortious conduct under former article 2315.3 of
the Civil Code. Anadarko and BP have moved to dismiss all of
these claims, and the remaining defendants have moved to dismiss
plaintiffs' claims for a continuing tort and for punitive
damages.76
a.

Negligence Under Article 2315

As noted above, plaintiffs concede that the complaint does
not plausibly allege that Anadarko or BP engaged in any
affirmative conduct on the property in question.77 Neither entity
is listed in the Operator History of the property, and plaintiffs
have not alleged facts suggesting that Anadarko or BP engaged in

76

As noted above, Anadarko and BP moved to dismiss all of
plaintiffs' claims against them based on the argument that the
complaint alleges no individual conduct as to Anadarko or BP.
Chevron, Hilcorp, and French have not moved to dismiss
plaintiffs' claims for negligence or for a violation of section
324A of the Restatement.
77

See R. Doc. 63-1 at 2; R. Doc. 72 at 3.
35

any oil and gas exploration or production activities there.
Plaintiffs allege only that Anadarko and BP have failed to
restore property that they leased from plaintiffs to its original
condition. For the following reasons, this allegation is
insufficient to support a tort claim under article 2315.
"Louisiana courts recognize that the same acts or omissions
may constitute breaches of both general duties and contractual
duties, giving rise to actions in both tort and contract." Huggs,
Inc. v. LPC Energy, Inc., 889 F.2d 649, 655 (5th Cir. 1989); see
also W&T Offshore, Inc. v. Apache Corp., 918 F. Supp. 2d 601,
614-15 (S.D. Tex. 2013); Clean Harbors Envtl. Servs., Inc. v. R&R
Const. Servs., Inc., Civil Action No. 10-3224, 2011 WL 5509035,
at *4 (E.D. La. Oct. 12, 2011); Strahan v. Sabine Retirement &
Rehabilitation Ctr., Inc., 981 So. 2d 287, 292 (La. Ct. App.
2008). In determining whether a breach of contract can also give
rise to a tort claim, a court must decide whether the breach was
passive or active. See Huggs, 889 F.2d at 655; Strahan, 981 So.
2d at 292.
Generally, where a person neglects to do what he is
obligated under a contract, he has committed a passive
breach of the contract. If he negligently performs a
contractual
obligation,
he
has
committed
active
negligence and thus an active breach of the contract. A
passive breach of contract warrants only an action for
breach of contract; an active breach of contract, on the
other hand, will also support an action in tort under La.
Civ. Code art. 2315.
Huggs, 889 F.2d at 655.

36

Here, plaintiffs have not alleged that Anadarko and BP
negligently performed their contractual obligations as lessees to
the property, because they have not alleged that Anadarko or BP
operated on the property or otherwise performed any obligations
at all. Instead, they have alleged that Anadarko and BP failed to
perform their obligation to restore property under the Civil and
Mineral Codes. That alleged breach of contract is passive, not
active, and accordingly plaintiffs' tort claim against Anadarko
and BP fails. See id.
b.

Continuing Tort Claim

Defendants contend that plaintiffs have not adequately pled
a continuing tort claim because the operating cause of the
alleged injury is not continuous. They note that plaintiffs do
not allege that oil and gas exploration and production operations
are ongoing on their property. Indeed, any such allegation would
be belied by the property's Operator History, which reflects that
the last well operated on the property was plugged and abandoned
nearly thirty years ago. Instead, plaintiffs allege that "[t]he
pollution caused by defendants continues to migrate," and argue
that "the continuing failure of defendants to remove their
pollution from the property" constitutes a continuing tort.78 In
their opposition, plaintiffs contend that, if any unlined earthen

78

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 54.
37

pits of waste remain open on their property, the existence of
such open pits constitutes a continuing tort under the Louisiana
Supreme Court's decision in Marin.79
Defendants have the better of this argument. Under Louisiana
law, in order to determine whether injurious conduct constitutes
a continuing tort, "the court must look to the operating cause of
the injury sued upon and determine whether it is a continuous one
giving rise to successive damages, or whether it is discontinuous
and terminates, even though the damage persists and may
progressively worsen." Marin, 48 So. 3d at 253 (quoting Hogg v.
Chevron USA Inc., 45 So. 3d 991, 1003 (La. 2010)). "A continuing
tort is occasioned by unlawful acts, not the continuation of the
ill effects of an original, wrongful act." Crump v. Sabine River
Auth., 737 So. 2d 720, 728 (La. 1999). Thus, "continued
migration" of pollution already deposited onto property does not
constitute a continuing tort, because it "is the continuation of
the harm caused by the previous, but terminated conduct, and
falls under the category of 'progressively worsening damages,'
not damage-causing conduct." Marin, 48 So. 3d at 254; see also
Kling Realty Co., Inc. v. Chevron USA, Inc., 575 F.3d 510, 519
(5th Cir. 2009) (failure to clean up oilfield waste does not
constitute "a continuing physical invasion under Louisiana law").

79

R. Doc. 76 at 30.
38

In Marin, the Louisiana Supreme Court found that "the
deposit and storage of oilfield wastes into unlined pits"
constituted a continuous operating cause that "terminated when
the pits were closed." Id. at 255. Seizing on this language,
plaintiffs argue that defendants' ongoing failure to close the
pits on their property constitutes a continuing tort.
Plaintiffs' interpretation of Marin does not withstand
scrutiny. In Marin, the defendant ceased using the pits and
closed them at virtually the same time. See id. at 247. The court
used the point of closure of the pits as a convenient marker for
the point at which the tortious conduct ceased; it did not hold
that merely leaving oilfield waste in pits, without more,
constitutes a continuing tort. To the contrary, Marin explicitly
reaffirmed that "the breach of a duty to right an initial wrong
simply cannot be a continuing wrong that suspends the running of
prescription, as that is the purpose of every lawsuit and the
obligation of every tortfeasor." Id. at 254 (quoting Hogg, 45 So.
3d at 1007). Thus, the case is most naturally read to hold that a
defendant's tortious conduct continues so long as it actively
deposits and stores waste on the plaintiffs' property. Once the
defendant stops actively polluting the property, the tort ceases.
Any subsequent inaction is not tortious, but simply a failure to
remediate harm previously caused. See Sweet Lake Land & Oil Co.
v. Exxon Mobil Corp., No. 2:09-CV-1100, 2011 WL 4591084, at *3

39

(W.D. La. Sep. 29, 2011) (adopting a similar interpretation of
Marin); cf. Kling Realty, 575 F.3d at 519.
Plaintiffs do not allege that defendants are still actively
conducting oil and gas exploration or production activities on
their property, or actively depositing waste into unlined earthen
pits. Accordingly, the Court finds that plaintiffs have failed to
state a claim for a continuing tort.
c.

Restatement § 324A

Louisiana courts recognize the common law doctrine codified
in the Restatement (Second) of Torts § 324A. That section
provides that
[o]ne who undertakes, gratuitously or for consideration,
to render services to another which he should recognize
as necessary for the protection of a third person or his
things, is subject to liability to the third person for
physical harm resulting from his failure to exercise
reasonable care to protect [perform] his undertaking, if
(a) his failure to exercise reasonable care increases the
risk of harm, or
(b) he has undertaken to perform a duty owed by the other
to the third person, or
(c) the harm is suffered because of reliance of the other
or the third person upon the undertaking.
Bujol v. Entergy Servs., Inc., 922 So. 2d 1113, 1128 (La. 2004).
Plaintiffs have not alleged that Anadarko or BP "undert[ook]
. . . to render services" to them; indeed, as noted above,
plaintiffs have failed to allege that those defendants engaged in
any conduct on the subject property at all. Accordingly, the
Court dismisses this claim against Anadarko and BP.

40

d.

Punitive Damages Under Former Article 2315.3

Former article 2315.3 of the Louisiana Civil Code provided
that, "[i]n addition to general and special damages, exemplary
damages may be awarded, if it is proved that plaintiff's injuries
were caused by the defendant's wanton or reckless disregard for
public safety in the storage, handling, or transportation of
hazardous or toxic substances." See Corbello v. Ia. Prod., 850
So. 2d 686, 707 (La. 2003). "Damages under 2315.3 are recoverable
on a derivative basis where a plaintiff is entitled to recover
tort damages." Id. The provision was in effect between 1984 and
1996, and applies to causes of action arising during that time
period. See id. at 707 n.9; Brownell Land Co. v. Apache Corp.,
No. Civ.A. 05-322, 2005 WL 3543772, at *6 (E.D. La. Oct. 13,
2005).
The law is clear that "in order to state a cause of action
for exemplary damages, the plaintiff must plead facts which
establish the[] cause of action during the effective period of
article 2315.3." In re Harvey Term Litig., 872 So.2d 584, 586
(La. Ct. App. 1994); accord Apache Corp., 2005 WL 3543773, at *6;
see also Sweet Lake Land & Oil Co. LLC v. Exxon Mobil Corp., No.
2:09 CV 1100, 2012 WL 27475, at *2 (W.D. La. Jan. 3, 2012).
Plaintiffs have failed to do so here. They have broadly alleged
that defendants' conduct "egregiously violat[ed] applicable
health and safety regulations and applicable field-wide orders"
and "constitute[d] wanton or reckless disregard for public safety
41

in the storage, handling or transportation of hazardous or toxic
substances."80 But plaintiffs have alleged no facts plausibly
suggesting that specific instances of such conduct occurred
between 1984 and 1996, when article 2315.3 was operative. In
fact, the Operator History of plaintiffs' property indicates that
no named defendant (or predecessor in interest of any named
defendant) conducted oil and gas exploration and production
activities on the property after 1982.81 Accordingly, plaintiffs'
claim for punitive damages must fail. See Guthrie v. Plains Res.
Inc., No. 2:12 CV-1904, 2013 WL 2471670, at *11 (W.D. La. June 7,
2013) (dismissing punitive damages claims based on drilling in
oil wells that were plugged and abandoned before the enactment of
article 2315.3); Apache Corp., 2005 WL 3543772, at *6 (dismissing
punitive damages claims because the plaintiff had not pled facts
suggesting that "the alleged contamination occurred on the
plaintiff's property during the effective period of the statute
or that defendant knew of such contamination during such time
period").
Plaintiffs argue that Chevron's "failure to remove the
hazardous substances wrongfully deposited on the plaintiffs'

80

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 58.
81

Id. at 32-33. As noted above, two of the wells in
question were not plugged and abandoned until 1986. Id. at 32.
But Tennecco -- which is not named as a defendant in this case -took over operation of both of those wells in 1982. Id.
42

land" and "failure to warn the plaintiffs of the danger" between
1984 and 1996 could give rise to liability for punitive damages
under former article 2315.3.82 This is incorrect. The Court has
already held that Chevron's alleged failure to remediate
pollution already deposited on plaintiffs' property is not
ongoing tortious conduct, and plaintiffs can recover punitive
damages only on a "derivative basis" after showing that the
defendant committed a tort. Corbello, 850 So. 2d at 707. Grefer
v. Alpha Technical, 901 So. 2d 1117 (La. Ct. App. 2005), cited by
plaintiffs in their opposition, is not to the contrary. There,
the court held that the jury was entitled to find Exxon liable
for punitive damages because Exxon had actively shipped "NORMcontaminated oilfield tubing" to another company during the time
article 2315.3 was in force. Id. at 1144. Here, in contrast,
plaintiffs have not plausibly alleged that Chevron (or any other
defendant) engaged in tortious conduct resulting in contamination
between 1984 and 1996.
Plaintiff's "failure to warn" argument also fails. First,
plaintiff has cited no authority for the proposition that former
article 2315.3, which imposed liability for the "wanton or
reckless disregard for public safety in the storage, handling, or
transportation of hazardous or toxic substances," encompasses
failure to warn claims if the defendant's acts of storing,

82

R. Doc. 76 at 18.
43

handling, or transporting the substances did not occur during the
period that former article 2315.3 was in effect.
Second, the Louisiana courts to have considered the issue
have held that "the continuing tort theory simply cannot apply in
failure to warn cases." GHR Energy Corp. v. Carboline Co., 744 F.
Supp. 1405, 1407 (E.D. La. 1990); accord Hoskins v. United
States, No. CIV.A. 00-173, 2001 WL 175237, at *2 (E.D. La. Feb.
20, 2001); Castano v. Am. Tobacco Co., 870 F. Supp. 1425, 1436
(E.D. La. 1994). Again, plaintiffs can recover punitive damages
under former article 2315.3 only on a "derivative basis" after
showing that the defendant committed a tort. Corbello, 850 So. 2d
at 707. Defendant's continuing failure to warn plaintiffs cannot
give rise to punitive liability because such conduct is not a
continuing tort.
9.

Trespass Claim

a.

Continuing Trespass

Plaintiffs' claim for a continuing trespass fails for the
same reason as did their claim for a continuing tort: the alleged
operating cause of the injury is not continuous, but rather
terminated in the past. See Hogg, 45 So. 3d at 1003-04 (because
trespass is a species of tort, "[t]o determine whether a trespass
is continuous, a court must engage in the same inquiry used to
determine the existence of a continuing tort" and determine

44

whether the operating cause of the injury is continuous or
discontinuous); see also Marin, 48 So. 3d at 253.
b.

Trespass Based on Actions Outside the Scope of the
Lease

In plaintiffs' opposition, they appear to abandon their
theory of continuing trespass and instead argue that defendants
committed a trespass by "operating on the property outside the
confines of their lease rights."83
This claim cannot succeed against Anadarko, BP, Hilcorp, or
French, because plaintiffs have not plausibly alleged that those
defendants operated on the property at all. But plaintiffs have
plausibly alleged a trespass against Chevron. The complaint
alleges that Chevron, through its predecessors in interest, was
granted an oil and gas lease on plaintiffs' property, but then
violated its implied obligations under that lease by polluting
and severely damaging the property. Thus, plaintiffs have
plausibly alleged that Chevron operated outside the scope of the
applicable lease, which constitutes a trespass under Louisiana
law. See Vermilion Parish Sch. Bd. v. BHP Billiton Petroleum
(Ams.) Inc., No. Civ. A. 04-2069, 2005 WL 2406157, at *7 (W.D.
La. Sep. 29, 2005); cf. Gaspard v. St. Martin Parish Sewerage
Dist. #1, 569 So. 2d 1083, 1084 (La. Ct. App. 1990).

83

R. Doc. 76 at 40.
45

c.

Civil Fruits

Plaintiffs allege that defendants "derived substantial
economic benefits" from their storage of hazardous waste on
plaintiffs' property, because that storage allowed defendants "to
avoid the substantial costs and expenses associated with the
proper disposal of this toxic pollution and waste."84 Based on
this allegation, plaintiffs claim that they are entitled to civil
fruits of defendants' trespass under Civil Code article 486,
which provides that "[a] possessor in bad faith is bound to
restore to the owner the fruits he has gathered, or their value,
subject to his claim for reimbursement of expenses."
Plaintiffs cannot state a claim for civil fruits of trespass
against Anadarko, BP, Hilcorp, or French because the Court found
above that none of those defendants trespassed on plaintiffs'
property. Plaintiffs do, however, have a viable trespass claim
against Chevron, and so the Court must determine whether the
"economic benefits" Chevron allegedly derived from its storage of
oilfield wastes on plaintiffs' property constitute "fruits"
within the meaning of Civil Code article 486.
Civil Code article 551 defines fruits as "things that are
produced by or derived from another thing without diminution of
its substance," and civil fruits as "revenues derived from
another thing, such as rentals, interest, and certain corporate

84

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 59.
46

distributions." The Louisiana Court of Appeal for the Second
Circuit has held that economic benefits derived from storage of
wastes on a plaintiff's property without permission are not
"civil fruits" as defined in the Civil Code because nothing is
"produced by or derived from the property as a result of the
storage/disposal of the waste," and there are "no revenues, such
as rentals, interest or a corporate distribution, derived from
the property by virtue of the storage/disposal of the waste."
Wagoner v. Chevron USA Inc., 55 So. 3d 12, 27 (La. Ct. App.
2010).
The Court finds the analysis in Wagoner persuasive. Chevron
may have avoided costs by improperly storing waste on plaintiffs'
property, but avoiding costs is not the same as earning revenues.
Accordingly, the Court holds that plaintiffs have not stated a
claim for civil fruits against Chevron.
The cases on which plaintiffs rely in arguing to the
contrary are distinguishable. In Corbello, the Louisiana Supreme
Court affirmed the lower court's decision to award the plaintiff
the "profits earned by [the defendant] during the time [the
defendant] remained on the property in bad faith, without a lease
and over the objection of plaintiffs." 850 So. 2d at 709
(emphasis added). Similarly, in Rosenthal-Brown Fur Co. v. JonesFrere Fur Co., 110 So. 630 (1926), the court held that the
plaintiffs were entitled to recover the profits that defendants
earned by unlawfully trapping animals on plaintiffs' land. Id. at
47

632-33. Here, in contrast, plaintiffs are not seeking profits
earned by defendants (which would be considered "fruits" under
the definition of article 551), but rather costs avoided by
defendants.
Finally, the court in Mongrue v. Monsanto Co., No. CIV. A.
98-2531, 1999 WL 970354 (E.D. La. Oct. 21, 1999), merely stated
that the plaintiffs could recover damages to compensate them for
the "depriv[ation] of the opportunity to use or lease their
underground storage space" caused by the defendant's trespass.
Id. at *4. The plaintiffs in Mongrue did not request that the
defendant disgorge "civil fruits"; indeed, the opinion does not
even mention that legal doctrine. Rather, the Mongrue plaintiffs
sought reimbursement for actual damages that they suffered as a
result of the defendants' trespass.
10.

Claims Under Article 667

Plaintiffs also allege that defendants have violated
Louisiana Civil Code article 667. They contend that defendants
are strictly liable to them for damages stemming from violations
of article 667 that occurred before April 16, 1996. Plaintiffs
argue in their brief that a strict liability standard is
appropriate for pre-1996 conduct because defendants engaged in
ultrahazardous activity on plaintiffs' property.85 Plaintiffs

85

R. Doc. 76 at 36.
48

also allege that defendants are liable under the post-1996
version of article 667.
Before the 1996 amendments to the Civil Code, article 667
provided as follows: "Although a proprietor may do with his
estate what he please, still he can not make any work on it,
which may deprive his neighbor of the liberty of enjoying his
own, or which may be the cause of any damage to him." Louisiana
courts interpreted article 667 to impose strict liability -- that
is, liability without fault -- on defendants for damage caused by
an activity deemed "ultrahazardous." Bartlett v. Browning-Ferris
Indus., Chem. Servs., Inc., 683 So. 2d 1319, 1321 (La. Ct. App.
1996).
In 1996, the legislature "amended article 667 to require a
showing of negligence in any claim for damages under article 667
other than those caused by 'pile driving' or 'blasting with
explosives.'" Vekic v. Wood Energy Corp., No. Civ.A. 03-1906,
2004 WL 2367732, at *4 (E.D. La. Oct. 20, 2004); accord Yokum v.
615 Bourbon Street, L.L.C., 977 So. 2d 859, 874 (La. 2008).
Article 667 now provides as follows:
Although a proprietor may do with his estate whatever he
pleases, still he cannot make any work on it, which may
deprive his neighbor of the liberty of enjoying his own,
or which may be the cause of any damage to him. However,
if the work he makes on his estate deprives his neighbor
of enjoyment or causes damage to him, he is answerable
for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known that his
works would cause damage, that the damage could have been
prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. . . .
49

Nonetheless, the proprietor is answerable for damages
without regard to his knowledge or his exercise of
reasonable care, if the damage is caused by an
ultrahazardous activity. An ultrahazardous activity as
used in this Article is strictly limited to pile driving
or blasting with explosives.
The Court finds that plaintiffs have not plausibly alleged
that Anadarko, BP, Hilcorp, or French violated the duties imposed
by article 667. As noted above, plaintiffs have not alleged that
any of those defendants engaged in any "work" on the property in
question, much less "work" that could be considered unlawful
under either the former or current version of article 667.
Moreover, plaintiffs' claim against Chevron for continuing
nuisance under article 667 fails for the same reason as their
continuing tort claims. See Hogg, 45 So. 3d at 1003 (equating the
concepts of continuing tort, continuing trespass, and continuing
nuisance). The facts alleged in the complaint do not plausibly
suggest that there is an ongoing nuisance causing harm to
plaintiffs' property.
The Court now considers Chevron's liability to plaintiffs
for violations of article 667 that occurred in the past.
a.

Liability For Damages Incurred Before 1996

The seminal case interpreting former article 667 in the
context of entities holding coexisting rights to the same piece
of property is Inabnet v. Exxon Corp., 642 So. 2d 1243 (La.
1994). The Inabnet court noted that article 667 "place[d]
limitations on the rights of owners by setting out principles of
50

responsibility applying the doctrine of sic utere tuum ut alienum
non laedas, which requires an owner to use his property in such a
manner as not to injure another." Id. at 1250-51 (citing 4 A.N.
Yiannapoulos, Louisiana Civil Law Treatise, Predial Servitudes §§
25, 33 (1983)). More specifically, this codal provision
"prohibit[ed] uses which cause damage to neighbors or deprive
them of the enjoyment of their property." Inabnet, 642 So. 2d at
1251.
Conduct by a "neighbor" that violated the duties imposed by
former article 667 could "give rise to delictual liability,
without negligence, as a species of fault within the meaning of
La. Civ. Code art. 2315." Id. at 1251; see also Turner v. Murphy
Oil USA, Inc., 234 F.R.D. 597, 608 (E.D. La. 2006) ("A violation
of Louisiana Civil Code article 667 constitutes fault within the
meaning of Louisiana Civil Code article 2315."). The Louisiana
Supreme Court consistently held that individuals holding
coexisting rights in the same piece of property could "be
neighbors within the contemplation of Article 667." Inabnet, 642
So. 2d at 1252 (citing Butler v. Baber, 529 So. 2d 374 (La.
1988)); see also Magnolia Coal Terminal v. Phillips Oil Co., 576
So. 2d 475, 484 (La. 1991); Butler, 529 So. 2d at 381. But,
in cases involving damages caused to one holder of a
right to immovable property by another holder of a right
to the same property, the court in determining "fault"
under Article 2315 must consider not only Articles
667–669, but also all other applicable codal and
statutory rules and legal principles and other pertinent
considerations.
51

Inabnet, 642 So. 2d at 1252. These "pertinent considerations"
included
the temporal order of the leases or other rights, the
nature of the rights, the type of activities normally
incidental to the use for which the rights were granted,
the damage-causing party's knowledge of the existence of
the damaged party's rights, the availability of
alternative methods of exercising the right so as to
cause little or no damage, and others.
Id. In other words, when two entities had coexisting rights to
the same piece of property, the standards imposed by former
article 667 were not the only considerations in determining
whether one entity breached the obligation of neighborhood set
forth in that provision. The court was also required to analyze
the relationship of the parties, the nature of their rights to
the property, whether the defendant breached any duties flowing
from the relationship, and the applicability vel non of other
provisions of the Civil or Mineral Codes. See Inabnet, 642 So. 2d
at 1252-53.
Inabnet provides a helpful example of this principle. There,
the Court determined that the defendant, Exxon, which held a
surface lease in property on which plaintiff had acquired an
oyster lease, was not liable to the plaintiff under article 667
for the plaintiff's inability to produce oysters. The Court
explained that Exxon had acquired a right to install and operate
a tank battery on the property ten years before the plaintiff
acquired his oyster lease. Id. at 1253. Thus, the nature of
Exxon's right "precluded oyster production on the same property
52

and made [the property] unavailable for plaintiff's use under his
lease." Id. at 1253.
Applying the foregoing principles to this case, the Court
finds that (1) plaintiffs have stated a delictual claim against
Chevron under article 2315 for a violation of the duties imposed
by former article 667, but (2) strict liability, as traditionally
understood, is not the appropriate standard for that claim.
Plaintiffs have stated a delictual claim based on former
article 667 against Chevron arising out of the "work" Chevron
allegedly performed on their land. Cf. Yokum, 977 So. 2d at 875
("[T]he 'work' to which Article 667 refers includes not only
constructions but also activities that may cause damage."). The
complaint alleges that Chevron's conduct "deprive[d] [plaintiffs]
of the liberty of enjoying" their land by causing damage to it
and also violated certain implied obligations owed by mineral
lessees under Louisiana statutory law. Accordingly, plaintiffs
have also plausibly alleged that Chevron has breached its duty
under former article 667 to refrain from damaging its neighbors.
See Magnolia Coal, 576 So. 2d at 484 (mineral lessees liable to
lessor under article 667 for "exercis[ing] their contractual
rights as mineral lessees with an unreasonable disregard for the
damage" thereby inflicted on the land).
But, even assuming that Chevron's alleged conduct
constitutes "ultrahazardous activity" within the meaning of the
pre-1996 jurisprudence regarding former article 667, traditional
53

strict liability is not the standard applicable to that conduct.
Inabnet made clear that, when a court is faced with claims under
former article 667 between entities with co-existing rights to
the same piece of property, the court must consider more than
whether one co-owner engaged in conduct on the property that
caused the other co-owner to suffer damage. The Inabnet Court was
explicit on this point: It held that an earlier decision "hinging
liability of a mineral lessee to an oyster lessee of the same
property on proof of causation and damages" was too simplistic,
insofar as it failed to take into account other essential
considerations. Those considerations, as noted earlier, include
the temporal order of the leases or other rights, the
nature of the rights, the type of activities normally
incidental to the use for which the rights were granted,
the damage-causing party's knowledge of the existence of
the damaged party's rights, the availability of
alternative methods of exercising the right so as to
cause little or no damage, and others.
Inabnet, 642 So. 2d at 1252. Accordingly, no liability can be
imposed under former article 667 without consideration of the
totality of these factors.
b.

Liability For Damages Incurred After 1996

Clearly, plaintiffs do not have a claim against Chevron for
strict liability under article 667 for damages incurred after
1996, because they have not alleged that Chevron engaged in pile
driving or blasting with explosives. See Yokum, 977 So. 2d at 874
(1996 amendments to article 667 "shift[ed] the absolute liability

54

standard to a negligence standard" for all activities except pile
driving and blasting with explosives). Instead, plaintiffs must
show that Chevron's actions were negligent. See id. But, as noted
above, see supra Section III.B.5.b, plaintiffs have plausibly
alleged that Chevron's predecessors in interest negligently
conducted oil and gas exploration and production activities on
plaintiff's land and improperly stored the resulting waste,
thereby causing harm to the property. Accordingly, plaintiffs'
claim for damages against Chevron for post-1996 violations of
current article 667 may go forward.
c.

Summary

In summary, plaintiffs have plausibly alleged a delictual
claim against Chevron, but no other defendant, for violating the
duties imposed by article 667. In order to ultimately prevail on
that claim, plaintiffs must show fault according to the
principles set forth in Inabnet (for conduct occurring before
1996) or negligence (for conduct occurring after 1996).
11.

Premises Liability Claims

Plaintiffs have brought claims under Civil Code articles
2317 and 2322, which set forth Louisiana law on premises
liability. Article 2317 provides that "[w]e are responsible, not
only for the damage occasioned by our own act, but for that which
is caused by the act of persons for whom we are answerable, or of
the things which we have in our custody." Before 1996, custodians
55

were strictly liable for injuries caused by things in their
custody. Accordingly, to recover under article 2317, a plaintiff
had to establish three elements: "(1) the thing causing his
damage was in the custody of the defendant; (2) the thing had a
'defect' or a condition creating an unreasonable risk of harm;
and (3) the defective condition caused plaintiff's injuries."
Hebert v. Sw. La. Elec. Membership Corp., 667 So. 2d 1148, 1157
(La. Ct. App. 1995) (citing Oster v. Dep't of Transp. & Dev., 582
So. 2d 1285 (La. 1991)). In 1996, the Louisiana legislature
amended the Civil Code to impose a negligence standard. Coulter
v. Texaco Inc., 117 F.3d 909, 913 & n.8 (5th Cir. 1997). Today,
in order to prevail on a custodial liability claim under article
2317, a plaintiff must prove a fourth element as well: that "the
defendant knew or should have known of the defect" that caused
the plaintiff's injuries. Cormier v. Dolgencorp, Inc., 136 F.
App'x 627, 627–28 (5th Cir. 2005) (citing La. Civ. Code. arts.
2317, 2317.1).
Article 2322 applies specifically to buildings, and provides
as follows:
The owner of a building is answerable for the damage
occasioned by its ruin, when this is caused by neglect to
repair it, or when it is the result of a vice or defect
in its original construction. However, he is answerable
for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known of the
vice or defect which caused the damage, that the damage
could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable
care.

56

A plaintiff must plead the following elements to state a
claim under article 2322: "(1) ownership of the building; (2) the
owner knew or, in the exercise of reasonable care, should have
known of the ruin or defect; (3) the damage could have been
prevented by the exercise of reasonable care; (4) the defendant
failed to exercise such reasonable care; and (5) causation."
Broussard v. State ex rel. Office of State Bldgs., 113 So. 3d
175, 182-83 (La. 2013). Like article 2317, article 2322 imposed
liability without fault before the 1996 revisions to the Civil
Code. See Celestine v. Union Oil Co., 652 So. 2d 1299, 1303 (La.
1995).
Plaintiffs allege that "[a]t all pertinent times hereto,
defendants had garde of the facilities and equipment that caused
the pollution described herein."86 But plaintiffs have not
alleged any facts suggesting that those facilities or equipment
contained a "defect" or "ruin" that posed an unreasonable risk of
harm. Allegations that the defendants had custody of facilities
and that the facilities caused harm in the form of pollution are
not enough; the harm must be the result of a defective condition
in order for a claim under article 2317 or article 2322 to lie.
See Cormier, 136 F. App'x at 627–28; Broussard, 113 So. 3d at
182-83. Accordingly, plaintiffs' premises liability claims may
not go forward.

86

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 55.
57

12.

Unjust Enrichment Claim

Louisiana Civil Code article 2298 is Louisiana's unjust
enrichment statute. It provides as follows:
A person who has been enriched without cause at the
expense of another person is bound to compensate that
person. The term "without cause" is used in this context
to exclude cases in which the enrichment results from a
valid juridical act or the law. The remedy declared here
is subsidiary and shall not be available if the law
provides another remedy for the impoverishment or
declares a contrary rule.
La. Civ. Code art. 2298. Louisiana courts have interpreted the
provision to require a five-part showing in order to recover:
(1) [T]here must be an enrichment, (2) there must be an
impoverishment, (3) there must be a connection between
the enrichment and resulting impoverishment, (4) there
must be an absence of "justification" or "cause" for the
enrichment and impoverishment, and finally (5) the
action will only be allowed when there is no other
remedy at law, i.e., the action is subsidiary or
corrective in nature.
Richard v. Wal–Mart Stores, Inc., 559 F.3d 341, 346 (5th Cir.
2009) (quoting Minyard v. Curtis Prods., Inc., 205 So. 2d 422,
432 (La. 1968)).
Plaintiffs rightfully concede that their claim for unjust
enrichment is not viable because they have available remedies at
law. "[U]njust enrichment is a remedy of 'last resort' and is
only available to fill a gap in the law." Port of S. La. v. TriParish Indus., Inc., 927 F. Supp. 2d 332, 341 (E.D. La. 2013).
Thus, if a plaintiff pleads a legal cause of action in his
complaint, he may not also assert a claim for unjust enrichment,
58

because the latter is precluded by the availability of the
former. Id. (citing Walters v. MedSouth Record Mgmt., LLC, 38 So.
3d 245, 246 (La. 2010)); Gallant Invs. Ltd. v. Ill. Cent. R.R.
Co., 7 So. 3d 12, 18 (La. Ct. App. 2009)). Accordingly, the Court
dismisses plaintiffs' claims for unjust enrichment.
IV.

LEAVE TO AMEND
Courts should "freely give leave" to amend "when justice so

requires." Fed. R. Civ. P. 15(a)(2); Filgueira v. U.S. Bank Nat'l
Ass'n, 734 F.3d 420, 422 (5th Cir. 2013). Accordingly, the Court
will grant plaintiffs' request for an opportunity to amend their
complaint.

V.

CONCLUSION
For the foregoing reasons, the Court DENIES defendants'

motions for a more definite statement and GRANTS IN PART and
DENIES IN PART the motions to dismiss filed by Anadarko, BP,
Chevron, Hilcorp, and French. The Court dismisses without
prejudice all of plaintiffs' claims against Anadarko and BP
except their claims under Civil Code articles 2683(2), 2686, and
2692, and Mineral Code articles 11 and 122. The Court dismisses
without prejudice the following claims against Chevron:
•
•
•
•
•

Fraudulent concealment claim
Claim for restoration under La. Civ. Code art. 2683(3)
Claim for breach of an express contractual provision
Claim under La. Civ. Code art. 2683(1)
Claim under La. Civ. Code art. 2688

59

•
•
•
•
•
•
•
•
•

Claims for breach of implied obligations owed by
mineral servitude holders under La. Civ. Code arts. 576
and 577 and La. Rev. Stat. §§ 31:11 and 31:22
Claims for land loss, subsidence, and backfilling of
canal
Continuing tort claim
Claim for punitive damages
Claim for continuing trespass
Claim for civil fruits under La. Civ. Code art. 486
Claims for continuing nuisance and for strict liability
under La. Civ. Code. art. 667
Premises liability claims under La. Civ. Code. arts.
2317 and 2322
Unjust enrichment claim

Finally, the Court dismisses without prejudice the following
claims against Hilcorp and French:
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Fraudulent concealment claim
Claim for restoration under La. Civ. Code art. 2683(3)
Claim for breach of express contractual provision
Claim under La. Civ. Code art. 2683(1)
Claim under La. Civ. Code art. 2688
Claims for breach of implied obligations owed by
mineral servitude holders under La. Civ. Code arts. 576
and 577 and La. Rev. Stat. §§ 31:11 and 31:22
Claim for land loss, subsidence, and backfilling of
canals
Continuing tort claim
Claim for punitive damages
Claim for trespass and continuing trespass
Claim for civil fruits under La. Civ. Code art. 486
Claims under La. Civ. Code. art. 667
Premises liability claims under La. Civ. Code. arts.
2317 and 2322
Unjust enrichment claim

60

Plaintiffs will be allowed twenty-one (21) days from the
date of this order to amend their complaint. Failure to timely
amend the complaint will result in dismissal of the foregoing
claims with prejudice.

New Orleans, Louisiana, this 22ndday of April, 2014.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

61