Texas Brine Company, LLC v. Dow Chemical Company et al

Filing 493

ORDER and REASONS - Presently before the Court are two motions filed by the parties. Having carefully reviewed the parties' submissions, the record in this matter, and applicable law, IT IS ORDERED that Defendant Clifton Land Corporation's "Motion for Summary Judgment" 198 is DENIED. Accordingly, IT IS FURTHER ORDERED that Plaintiffs' "Motion to Strike Affidavit of Clay Clifton" 236 is DENIED as MOOT, as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 2/23/2018. (Reference: 15-1102, 15-3324) (NEF: MAG-1)(cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TEXAS BRINE COMPANY, LLC

CIVIL ACTION

VERSUS

NO.

DOW CHEMICAL COMPANY, ET AL.

SECTION "N" (1)

15-1102 c/w
15-3324

ORDER AND REASONS
Presently before the Court are two motions filed by the parties. See Rec. Docs.198
and 236. Having carefully reviewed the parties' submissions, the record in this matter, and applicable
law, IT IS ORDERED that Defendant Clifton Land Corporation’s"Motion for Summary Judgment"
(Rec. Doc. 198) is DENIED. Accordingly, IT IS FURTHER ORDERED that Plaintiffs’ “Motion
to Strike Affidavit of Clay Clifton” (Rec. Doc. 236) is DENIED as MOOT.
With its motion for summary judgment, Defendant Clifton Land Corporation
("Clifton Land") seeks dismissal of Plaintiffs' claims against it, contending that, prior to this suit
being filed, it neither knew nor should have known of (1) any alleged encroachment of the Dow #18
solution-mining cavern upon Texas Brine Company's ("TBC) adjacent property; (2) any alleged
negligence by Dow that may have caused any Dow #18 encroachment; and (3) any alleged impact
to neighboring property as a result of any encroachment by Dow #18. In making these assertions,
Clifton Land relies on the alleged personal knowledge of its president, Clay Clifton, as set forth in
Mr. Clifton's November 1, 2017 affidavit.

Specifically, Mr. Clifton's affidavit represents that, as trustee for the trust shareholder
and then as president of the company (for "approximately four years"), he has been "closely
involved with Clifton Land going back to at least 2003," such that he has the necessary "personal
knowledge of the structure, operation, and business activities of Clifton Land."1 Disclaiming any
awareness of Dow #18's alleged encroachment or "harmful impact" on neighboring property, Mr.
Clifton avers that Clifton Land is neither involved in the solution-mining industry nor a sophisticated
party in the context of solution-mining or its ancillary operations.2 Further, according to Mr. Clifton,
Clifton Land has no ingress or egress on the property on which Dow #18 is located (due in part to
a fence preventing access), and its receipt of a salt royalty payment is its only connection with Dow's
solution-mining operations.3
Mr. Clifton undoubtedly is an important source of information relative to many
matters concerning Clifton Land. Nevertheless, it is not apparent to the Court, on the instant
showing made, that Mr. Clifton's role in company operations was such that, during the relevant time
period, he necessarily would have been aware of any and all information sufficient to put Clifton
Land on notice of the alleged encroachment, negligence, or negative impact on TBC's neighboring
property, if such information existed. Indeed, Mr. Clifton testified that he is kept abreast of "any
issue that arises" by Rita Corde Cade, the corporate secretary, who bears responsibility for the
company's "day-to-day" operations.4 Clifton Land's submission, however, does not include an

1

See Rec. Doc. 198-4, ¶¶ 2 and 11.

2

Id. at ¶ 7.

3

Id. at ¶¶ 8-10.

4

See Rec. Doc. 236-6 (Sealed) at p. 4 of 20.
2

regarding Dow's solution mining operations at Dow #18 and their alleged impact on TBC's
neighboring property. Accordingly, the Court does not find itself to presently be in a position to
declare Clifton Land entitled, as a matter of law, to a pre-trial dismissal of Plaintiffs' claims.5
New Orleans, Louisiana, this 23rd day of February 2018.

___________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

Clerk to Copy:
Magistrate Judge Janis van Meerveld

5

This ruling is, of course, without prejudice to a subsequent determination by the Court,
at the close of the evidence at trial, that Plaintiffs have failed to satisfy their evidentiary burden such
that judgment as a matter of law in Clifton Land's favor is then warranted. See Fed. R. Civ. P. 50(a).
Indeed, the particulars of the duty of care that Plaintiffs urge upon Clifton Land, in its sole capacity
as the owner of the immovable property on which Dow operated Dow #18, presently remain rather
unclear. For instance, it is far from evident here that mere knowledge of the basis for Clifton Land's
2004 suit against Dow, alleging Dow's deficient operation of a different cavern well, Dow #13, had
caused subsidence of Clifton Land's property – or even an "intuitive understand[ing]" that Dow's
[salt extraction] operations posed potential risks – translates into notice of and liability for the Dow
#18 cavern's alleged subsurface encroachment onto TBC's property. See Rec. Doc. 253-8 at p. 12
of 20.
3