Barrett et al v. Dresser L L C et al

Filing 38

MEMORANDUM RULING GRANTING IN PART AND DENYING IN PART re 27 MOTION to Dismiss For Failure to State a Claim filed by Halliburton Energy Services Inc, and 18 MOTION to Dismiss For Failure to State a Claim filed by Dresser R E L L C, Baker Hughes Co, Dresser L L C, Baker Hughes Energy Services L L C. Signed by Judge David C Joseph on 1/6/2021. (crt,Roaix, G)

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 1 of 16 PageID #: 222
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
KERRY BARRETT, ET AL

CIVIL ACTION NO. 1:20-CV-01346

VERSUS

JUDGE DAVID C. JOSEPH

DRESSER, LLC, ET AL

MAGISTRATE JUDGE JOSEPH H.L.
PEREZ-MONTES
MEMORANDUM RULING

Before the Court are two Rule 12(b)(6) Motions to Dismiss for Failure to State
a Claim (collectively, the “Motions”) filed, respectively, by: (i) Defendants Dresser,
LLC, Dresser RE, LLC, Baker Hughes Company, and Baker Hughes Energy Services,
LLC (collectively, “Dresser”), and by: (ii) Defendant Halliburton Energy Services, Inc.
(“Halliburton”) in the above-captioned matter. [Docs. 18, 27]. Given the
interrelatedness of issues therein, as well as Halliburton’s adoption of Dresser’s
Motion to Dismiss and supporting memorandum, the Court herein addresses the
Motions collectively. For reasons which follow, the Motions are GRANTED IN PART
and DENIED IN PART.
BACKGROUND
This dispute arises from alleged property damage sustained by adjacent
landowners resulting from operations at an industrial valve manufacturing facility
located in Rapides Parish, Louisiana (the “Dresser Facility”). [Doc. 1]. Plaintiffs
claim that, for the approximately 50 years during which the Dresser Facility was in
operation, solvents, cutting oils, acids, and caustics were disposed of improperly –
thereby causing groundwater and soil contamination to their respective properties.
[Id.].
1

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 2 of 16 PageID #: 223
In 2012, Dresser discovered elevated levels of hydrocarbons (“TPH”) in the
groundwater adjacent to the Dresser Facility and notified the Louisiana Department
of Environmental Quality (“DEQ”) of the excessive TPH concentrations. [Id.]. Since
its disclosure of the excessive TPH concentrations, Dresser alleges that it has
complied with the DEQ’s instructions concerning its remediation efforts. [Doc. 18-1].
The Dresser Facility ceased operations in 2016 [Doc. 1], and the contamination is
subject to ongoing investigation and remediation activities. [Doc. 18-1]. Pursuant to
these efforts, the DEQ notified adjacent property owners and residents in affected
areas of potential contamination of their properties in January of 2020. [Doc. 33-9].
On October 16, 2020, Plaintiffs filed suit against Dresser and Halliburton [Doc.
1]. Plaintiffs are 22 individuals and juridical entities that own property near the
Dresser Facility. [Id.]. Due to several mergers and acquisitions, Defendants are five
entities or successor entities that allegedly owned or operated the Dresser Facility at
various intervals from 1998 to 2016. [Doc. 1]. The Complaint asserts seven causes
of action: negligence, strict liability, custodial liability, liability for damage caused by
ruin of a building, trespass, private nuisance, and public nuisance. [Id.]. Because of
the length of time during which the Dresser Facility was operational and its varying
ownership structure throughout this time period, Plaintiffs premise their claims
against Defendants, in part, on a successor liability theory.

[Id.].

In addition,

Plaintiffs argue that the continuous tort doctrine is applicable based on the alleged
continuing contamination of the groundwater and soil underlying their properties.
[Id.].

2

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 3 of 16 PageID #: 224
Defendants move for dismissal of this action on two grounds. First, they claim
that the Complaint is a “shotgun” pleading and thus does not meet Rule 8’s pleading
requirements.

[Doc. 18-1].

Second, they maintain that, even accepting the

allegations as true, many of Plaintiffs’ claims fail as a matter of law. [Id.].
Plaintiffs opposed Dresser’s Motion on December 3, 2020 [Doc. 30] and
Halliburton’s Motion on December 22, 2020. [Doc. 37]. Dresser filed a reply brief on
December 8, 2020. [Doc. 32].
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move for
dismissal of a plaintiff’s claims before filing its answer when the pleadings, on their
face, fail “to state a claim upon which relief can be granted.” A pleading states a claim
for relief when, inter alia, it contains “a short and plain statement … showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when it contains sufficient “factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Plausibility requires more than just the “sheer
possibility” that a defendant acted unlawfully; it calls for enough facts “to raise a
reasonable expectation that discovery will reveal evidence” to support the elements
of the claim. Twombly, 550 U.S. at 556. Although the Rule 8 pleading standard does
not require “detailed factual allegations,” mere “labels and conclusions,” or “a
formulaic recitation of the elements of a cause of action” do not suffice. Id. at 555.
3

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 4 of 16 PageID #: 225
In ruling on a Rule 12(b)(6) motion, a court may rely on the complaint, its
attachments, “documents incorporated into the complaint by reference, and matters
of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d
333, 338 (5th Cir. 2008) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007)). A court must accept as true all factual allegations, although
the same presumption does not extend to legal conclusions. Iqbal, 556 U.S. at 678.
In sum, if the factual allegations asserted in the complaint are wholly speculative or
if it is apparent from the face of the complaint that there is an absolute bar to
recovery, the claim should be dismissed. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
LAW AND ANALYSIS
I.

Satisfaction of Rule 8’s Pleading Requirements
Defendants first argue that the Complaint is deficient under Rule 8 because it

is a “shotgun pleading” that impermissibly cumulates all claims against all
Defendants without apprising each Defendant of the specific claims against it. [Doc.
18-1]. Coined by the Eleventh Circuit, a “shotgun pleading” fails “to give the
defendants adequate notice of the claims against them and the grounds upon which
[each] claim rests.” Sistrunk v. Haddox, CV 18-516, 2020 WL 2549699, at *11 (W.D.
La. May 19, 2020) (quoting Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d
1313, 1323 (11th Cir. 2015)).
Contrary to Defendants’ assertion, the Complaint does not resemble the type
of pleading typically condemned as “shotgun pleading.” The Complaint states the
respective time periods during which each defendant owned or operated the Dresser
Facility and alleges that the activity causing the contamination occurred throughout
the changes in ownership. Plaintiffs further allege that their properties were
4

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 5 of 16 PageID #: 226
contaminated by pollution that resulted from Defendants’ disposal of hazardous
substances at the Dresser Facility. Finally, Plaintiffs have set forth the legal theories
relied upon and specify the remedies they seek.
Because the Complaint describes the facts underlying the Plaintiffs’ claims in
a manner sufficient to notify Defendants of the claims against them – thereby
allowing them to prepare responsive pleadings – it does not constitute an improper
“shotgun pleading.” Other courts in this district and across the circuit have likewise
found complaints with analogous factual allegations sufficient under Rule 8. See, e.g.,
Gaspard One, L.L.C. v. BP Am. Prod. Co., CIV. A. 07-1551, 2008 WL 863987, at *3
(W.D. La. Mar. 31, 2008) (holding that the petition satisfied Rule 8 because it
identified the subject property, timing of the contamination, and hazardous
substances at issue); 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 the
complaint sufficient because it listed “the identities of all parties ... to the case, as
well as detailed descriptions of the property at issue ... [,] the legal theories under
which recovery is sought, as well as the types of damages sought”); see also Morgan
Plantation, Inc. v. Tennessee Gas Pipeline Co., LLC, 16-CV-1620, 2017 WL 4864489
(W.D. La. Sept. 21, 2017), report and recommendation adopted, 2:16-CV-1620, 2017
WL 4847523 (W.D. La. Oct. 26, 2017); Martin v. Tesoro Corp., 2:11 CV 1413, 2012 WL
1866841 (W.D. La. May 21, 2012) Alford v. Chevron U.S.A. Inc., 13 F.Supp.3d 581
(E.D. La. 2014).
Any additional information sought by the Defendants regarding the specific
nature of Plaintiffs’ claims is appropriately reserved for discovery. See Alford, 13
5

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 6 of 16 PageID #: 227
F.Supp.3d at 591. In this regard, the Defendants are well positioned to ascertain the
time periods during which they owned and operated the Dresser Facility as well as
the activity taking place during that time. Accordingly, the Court denies Defendants’
Motions as to the adequacy of Plaintiffs’ Complaint under Rule 8.
II.

Successor Liability Claims
Next, Defendants seek dismissal of Plaintiffs’ successor liability claims,

arguing that the Complaint fails to demonstrate a plausibility that “any of the
Dresser Defendants is a successor to any entity.” [Doc. 18]. Louisiana courts have
adopted the basic principles of corporate successor liability articulated by the United
States Supreme Court in Golden State Bottling Co. v. NLRB, 414 U.S. 168, 182 n.5,
94 S.Ct. 414, 424; 38 L.Ed.2d 388 (1973), to wit:
[T]he general rule of corporate liability is that, when a corporation sells
all of its assets to another, the latter is not responsible for the seller's
debts or liabilities, except where (1) the purchaser expressly or impliedly
agrees to assume the obligations; (2) the purchaser is merely a
continuation of the selling corporation; or (3) the transaction is entered
into to escape liability.
See Monroe v. McDaniel, 16-214 (La. App. 5th Cir. 12/7/16); 207 So.3d 1172; J.D.
Fields & Co. v. Nottingham Construction Co., LLC, 15–723 (La. App. 1 Cir. 11/9/15);
184 So.3d 99; Pichon v. Asbestos, 10–570 (La. App. 4th Cir. 11/17/10); 52 So.3d 240,
writ denied, 10–2771 (La. 2/4/11); 57 So.3d 317.
After relaying the basic details of Defendants’ mergers and acquisitions over
the past approximately 25 years [Doc. 1 ¶¶ 19-25], the Complaint alleges that the
first two exceptions to the general rule of corporate liability are applicable. [Id. ¶ 26].
Specifically, Plaintiffs contend that Defendants are liable to the extent obligations

6

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 7 of 16 PageID #: 228
were assumed under their merger and acquisition contracts 1 or, if no formal merger
occurred, pursuant to the continuation doctrine.
With respect to the continuation doctrine, courts consider eight factors in
determining whether an entity is a mere continuation of its predecessor: (i) retention
of the same employees, (ii) retention of the same supervisory personnel, (iii) retention
of the same production facility in the same physical location, (iv) production of the
same product, (v) retention of the same name, (vi) continuity of assets, (vii) continuity
of general business operations, and (viii) whether the successor holds itself out as the
continuation of the previous enterprise. Hollowell v. Orleans Reg'l Hosp. LLC, 217
F.3d 379, 390 (5th Cir. 2000) (applying Louisiana law); Boes Iron Works, Inc. v. Gee
Cee Grp., Inc., 2016-0207, p. 13 (La. App. 4th Cir. 11/16/16); 206 So.3d 938, 949, writ
denied, 2017-C-0040, 2017 WL 744658 (La. Feb. 10, 2017). Here, Plaintiffs have
alleged retention of the Dresser Facility at the same Pineville address, retention of
the production of valves, and retention of the name “Dresser” throughout the alleged
mergers and acquisitions over the past approximately fifty years. [Doc. 1 ¶¶ 1, 9, 18–
26].
The Court notes that the Complaint contains very little detail concerning the
nature of Defendants’ mergers and acquisitions and further notes that this
information is critical to a successor liability claim.

However, the Court

acknowledges that Plaintiffs’ successor liability allegations are likely based on the
limited information available in the public records, which do not supply the substance

In the case of a formal merger, “[a]ll liabilities of each corporation or eligible entity
that is merged into the survivor are vested in the survivor.” La. Rev. Stat. Ann. § 12:11107(4).
1

7

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 8 of 16 PageID #: 229
of Defendants’ merger and acquisition agreements. For this reason, courts often deny
motions to dismiss successor liability claims and instead allow for discovery. See, e.g.,
Mitchell, 2020 WL 1442966; Ruston Louisiana Hosp. Co., LLC v. Lincoln Health
Found., Inc., CV 18-0881, 2018 WL 6332850 (W.D. La. Nov. 20, 2018), report and
recommendation adopted, 3:18-CV-0881, 2018 WL 6331698 (W.D. La. Dec. 4, 2018);
AMEC Constr. Mgmt., Inc. v. Fireman's Fund Ins. Co., CIV.A. 13-718-JJB, 2014 WL
1875264 (M.D. La. May 9, 2014).
Taking the facts describing Dresser’s corporate history as true, Plaintiffs have
stated a plausible claim for relief under a successor liability theory and raised “a
reasonable expectation that discovery will reveal evidence” to support their claim.
See Twombly, 550 U.S. at 556. Plaintiffs’ successor liability allegations are therefore
sufficient to withstand a Rule 12(b)(6) Motion.
III.

Tort Claims
In addition to the foregoing arguments, Defendants contend that Plaintiffs

have failed to state claims upon which relief can be granted with regard to the
Plaintiffs’: (i) continuing tort claim, (ii) strict liability claims under former Civil Code
Articles 667 and 2322, (iii) trespass claim, (iv) nuisance claim, (v) fraud claim 2, and
(vi) claim for civil fruits.
a)

Continuing Tort

Plaintiffs, in their Complaint, maintain that “’Defendants’ ongoing actions and
inactions continue to allow hazardous and toxic chemicals to escape from the Dresser

As addressed below, Plaintiffs deny that the Complaint asserts a fraud claim and,
accordingly, do not substantively defend the Motions on the merits as to this point.
2

8

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 9 of 16 PageID #: 230
Facility and contaminate surrounding properties” such as to constitute a continuing
tort. [Id.]. Defendants, in turn, contend that any liability should be limited to conduct
causing the initial release of hazardous substances, which ceased no later than 2016
when operations at the Dresser Facility halted. 3
Pursuant to Louisiana’s continuous tort doctrine, where the operating cause of
injury is continuous and gives rise to successive damages, prescription dates from the
cessation of the wrongful conduct causing the damage. Crump v. Sabine River Auth.,
98-2326, p. 9 (La. 6/29/99); 737 So.2d 720, 728. However, a continuing tort “is
occasioned by unlawful acts, not the continuation of the ill effects of an original,
wrongful act.” Id. Once the damage-causing conduct terminates, the tort also
terminates, irrespective of whether the damage persists and progressively worsens.
Marin v. Exxon Mobil Corp., 2009-2368, p. 28 (La. 10/19/10); 48 So.3d 234, 254.
Louisiana jurisprudence is clear that neither the perpetual presence of
contamination nor a failure to remediate contamination triggers application of the
continuous tort doctrine when the operating cause of the plaintiff’s property damage

In its Reply brief, Dresser notes that it does not seek dismissal of the Complaint’s
“prescription-related continuing tort claims” but instead of “claims for any alleged failure to
responsibly and timely remove and/or remediate alleged contamination.” [Doc. 32]. However,
continuing tort is a limited doctrine that functions only to suspend the commencement of
prescription when the operating cause of an injury is continuous. See Young v. United States,
724 F.3d 444, 447 (5th Cir. 2013) (describing Louisiana’s continuing doctrine as one used
“[f]or the purpose of determining when prescription starts to run”); Watson v. Arkoma Dev.,
LLC, CV 17-1331, 2018 WL 6274070, at *3 (W.D. La. Nov. 15, 2018), report and
recommendation adopted, 3:17-CV-1331, 2018 WL 6274008 (W.D. La. Nov. 30, 2018)
(“Continuing torts and continuing trespasses are not causes of action per se, but rather a
doctrine by which plaintiffs can delay prescription of their claims.”). Additionally, Louisiana
does not recognize the failure to contain or remediate contamination as a separate and
distinct claim. Hogg v. Chevron USA, Inc., 2009-2632, p. 23 (La. 7/6/10); 45 So.3d 991, 1007.
Therefore, the Court addresses the continuing tort claim in the context of prescription.
3

9

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 10 of 16 PageID #: 231
is the defendant’s disposal of hazardous waste which has ceased. See Marin, 48 So.3d
at 254 (“Any continued dissolution into the groundwater 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”); Hogg v. Chevron
USA, Inc., 2009-2632, p. 2 (La. 7/6/10); 45 So.3d 991 (holding that neither the
continuous presence of gasoline on the plaintiffs’ property nor the failure to contain
or remediate the migrating gasoline constituted a continuous tort when the actual
leaking of the gasoline ceased years prior to the action and the DEQ put plaintiffs on
notice of the contamination); Crump v. Sabine River Auth., 98-2326, p. 9 (La. 6/29/99);
737 So.2d 720, 729 (“[T]he breach of the duty to right a wrong and make the plaintiff
whole simply cannot be a continuing wrong which suspends the running of
prescription, as that is the purpose of any lawsuit and the obligation of every
tortfeasor.”).
The Complaint clearly establishes that Dresser ceased its operations in 2016
and, since this time, alleges no further activity taken by Defendants that would
constitute a continuing tort. 4 Accordingly, the Court dismisses Plaintiffs’ continuing
tort claim. 5
Citing several cases finding fraud as a basis for continuing tort, Plaintiffs argue in
their Opposition that Defendants’ active concealment of information concerning the
contamination gives rise to an additional basis for continuing tort. However, Plaintiffs
explicitly state – and the Court agrees – that the Complaint does not assert a fraud claim.
4

Although the Court finds that Plaintiffs have failed to state a continuing tort claim
such to suspend the commencement of prescription, it does not take the position that
Plaintiffs’ claims have prescribed. Given the nature of the allegations, it is likely that the
prescriptive period commenced when Plaintiffs first acquired knowledge of the potential
contamination of their properties from the DEQ in January of 2020. See La. Civ. Code art.
3493 (“When damage is caused to immovable property, the one-year prescription commences
to run from the day the owner of the immovable acquired, or should have acquired, knowledge
of the damage.”); Hogg v. Chevron USA, Inc., 2009-2632, p. 7 (La. 7/6/10); 45 So.3d 991, 997
5

10

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 11 of 16 PageID #: 232
b)

Strict Liability
i.

Article 667

The pre-1996 version of Article 667 imposed liability on landowners or
proprietors for actions that damage his neighbors caused by ultrahazardous
activities. Morgan Plantation, Inc. v. Tennessee Gas Pipeline Co., LLC, No. 16-CV1620, 2017 WL 4864489, at *5 (W.D. La. Sept. 21, 2017) (citations omitted).
Louisiana courts employed a three-prong test to determine whether an activity was
ultrahazardous. Under this test, in order to qualify as an ultrahazardous activity,
the conduct: (i) must relate to an immovable, (ii) must itself cause the injury and the
defendant must be engaged directly in the injury-producing activity, and (iii) must
not require substandard conduct to cause injury. Id. (citing Bartlett v. BrowningFerris Indus., Chem. Svcs., Inc., 683 So.2d 1319, 1321 (La. Ct. App. 3d Cir. 1996)).
Defendants claim that Plaintiffs failed to establish that their alleged injuries
were caused by an ultrahazardous activity because the third prong of the test is not
met. The Court agrees. The Complaint alleges that “Defendants knew or, in the
exercise of reasonable care, should have known that their activities and omissions at
the Dresser Facility would have caused the damage sustained by Plaintiffs” and,
significantly, that “[t]he damage could have been prevented by the exercise of
reasonable care by Defendants, but Defendants failed to exercise such reasonable
care.” [Doc. 1 ¶¶ 58–59].

(holding that prescription commenced when plaintiffs received notice from the DEQ that
contamination was detected in the groundwater and soil underlying their properties).
11

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 12 of 16 PageID #: 233
Because Plaintiffs alleged that their injuries were caused by the substandard
care of Defendants – and, importantly, did not allege the activities did not require
substandard care to cause their injuries – the third prong fails. See Morgan
Plantation, 2017 WL 4864489, at *5 (finding the plaintiffs’ former Article 667 strict
liability claim did not satisfy the third prong “because the petition alleged that the
damages were caused by the substandard care of the defendants, rather than that
the activities did not require substandard care to cause injury”); Pierce v. Exxon Mobil
Oil Corp., 2013 WL 1856079, *7 (E.D. La. Apr. 30, 2013) (holding that the third prong
was not met because the petition failed to “allege that the activity is ultra-hazardous
in and of itself, but rather that the substandard care of Defendants caused this
damage.”). Accordingly, Plaintiffs’ negligence allegations defeat their Article 667
claim, and the Motions are granted as to this claim.
ii.

Article 2322

Article 2322 concerns premises liability for defective buildings. Prior to 1996,
to recover under Article 2322, a plaintiff was required to show “(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).
According to the Complaint, “[t]he Dresser Facility, and the systems and
equipment therein, contained defects and/or conditions which … allowed for the
release of chlorinated solvent chemicals” onto their properties [Doc. 1 ¶ 63]. The
12

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 13 of 16 PageID #: 234
Complaint further alleges that Defendants knew or should have known of these
defective conditions and that their alleged property damage could have been
prevented in the exercise of reasonable care. [Id. ¶¶ 69–71]. These allegations are
sufficient to support a claim under Article 2322. See Watson v. Arkoma Dev., LLC,
CV 17-1331, 2018 WL 6274070, at *6 (W.D. La. Nov. 15, 2018), report and
recommendation adopted, 3:17-CV-1331, 2018 WL 6274008 (W.D. La. Nov. 30, 2018);
Morgan Plantation, 2017 WL 4864489, at *6.
c)

Trespass

Next, Defendants seek dismissal of Plaintiffs’ trespass claim. The Complaint
alleges that Defendants committed a trespass by allowing hazardous materials from
the Dresser Facility to migrate into the groundwater and soil underlying Plaintiffs’
properties. [Doc. 1 ¶¶ 75–79]. Defendants contend that any purported trespass was
not an intentional, affirmative act and that, accordingly, this claim fails because
Louisiana courts do not recognize a claim for trespass caused by a negligent, passive
act. [Doc. 19-1].
Under Louisiana law, a trespass is an unlawful physical invasion onto the
property of another. Vintage Assets, Inc. v. Tennessee Gas Pipeline Co., L.L.C., CV
16-713, 2017 WL 3601215, at *3 (E.D. La. Aug. 22, 2017) (citing Richard v. Richard,
24 So. 3d 292, 296 (La. App. 3 Cir. 2009)). The Louisiana Supreme Court has not
explicitly addressed whether an intentional, affirmative act is required to prove
trespass. 6 Nevertheless, several courts in this circuit, in interpreting Louisiana law,

“Under the Erie doctrine, federal courts sitting in diversity apply state substantive
law and federal procedural law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427
(1996). In applying Louisiana substantive law, federal courts look to the final decisions of
6

13

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 14 of 16 PageID #: 235
have held that an intentional act is required based on the Louisiana Supreme Court’s
jurisprudence in Hogg v. Chevron USA Inc.

See Petry v. R360 Envtl. Sols. of

Louisiana LLC, 2:20-CV-00820, 2020 WL 6494901, at *2 (W.D. La. Nov. 4, 2020);
Vintage Assets, 2017 WL 3601215, at *4.
In Hogg, the action stemmed from the migration of toxic substances from
leaking underground storage tanks at a service station into the groundwater and soil
underlying the plaintiffs’ properties. 2009-2632, p. 2 (La. 7/6/10); 45 So.3d 991, 995.
After receiving notice of the contamination from the DEQ, the plaintiffs filed suit
alleging, among other claims, continuing trespass. Id. at 996. Prior to discussing the
merits of the continuing trespass claim, the Court stated:
We note, without deciding the issue, that it is questionable whether the
tort of trespass even applies in this situation because civil trespass is
generally considered to be an intentional tort, requiring proof that the
defendant took some intentional action that resulted in harm to the
plaintiff. (citations omitted). It has been suggested that the action more
properly lies in nuisance. 1 Dan B. Dobbs, The Law of Torts § 53, at 107
(2001) (“Nuisance or negligence rather than trespass is definitely the
approach courts take when liquids percolate underground to enter the
plaintiff's land beneath the surface.”). Because plaintiffs' petition
asserts claims arising both in trespass and nuisance, and because the
analysis is the same insofar as the issues presented in this case are
concerned, it is not necessary to resolve this thorny issue.
Id. at 1002.
Given the Louisiana Supreme Court’s dicta in Hogg, which dealt with
analogous facts to those at hand, the Court understands Louisiana law to require an
intentional act to prove the tort of trespass. Critical to the Court’s analysis here, the
Complaint makes no allegation that Defendants engaged in intentional misconduct

the Louisiana Supreme Court. In re: Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th
Cir. 2007).
14

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 15 of 16 PageID #: 236
or otherwise took an affirmative step designed to cause the alleged contamination of
Plaintiffs’ properties.

Accordingly, Defendants’ Motions are granted as to the

trespass claim.
d)

Nuisance

Finally, Defendants seek dismissal of the private and public nuisance claims
insofar as they constitute a “continuing nuisance” claim, stating:
Plaintiffs have asserted claims for both public and private nuisance. But
Plaintiffs’ claim for this alleged continuing nuisance fails for the same
reason that their continuing tort claims fail. (citations omitted). As
explained above, Plaintiffs allege that operations at the Facility ceased
no later than 2016. Thus, even if the nuisance allegedly created by the
Dresser Defendants formerly existed, it has terminated. Moreover, the
alleged continued presence of constituents on Plaintiffs’ properties is
simply a continuation of the effects of the original act. (citations
omitted).
[Doc. 18-1]. For the reasons discussed in Part II infra, Louisiana law does not, under
these facts, permit a claim for nuisance beyond 2016 when operations at the Dresser
facility halted. Because Defendants do not otherwise oppose Plaintiffs’ claims for
nuisance under applicable Louisiana law, the Motions are denied as to Plaintiffs’
nuisance claims.
IV.

Other Claims
Defendants’ Motions also move for dismissal of a fraud claim, which Plaintiffs

contend they did not intend to assert. [Doc. 30]. Plaintiffs also state that the
Complaint only brings strict liability claims under Civil Code Articles 667, 2317, and
2322 for alleged misconduct occurring prior to the 1996 amendments.

Further,

Plaintiffs do not oppose dismissal of the claims for civil fruits. [Id.]. Accordingly, to
the extent the Complaint asserts claims for fraud, civil fruits, or strict liability under
15

Case 1:20-cv-01346-DCJ-JPM Document 38 Filed 01/06/21 Page 16 of 16 PageID #: 237
the post-1996 versions of Articles 667, 2317, and 2322, the Court dismisses these
claims without prejudice.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN
PART Defendants’ Motions.
IT IS HEREBY ORDERED that the Court dismisses WITH PREJUDICE the
following claims against Defendants:
•

Continuing tort,

•

Strict liability under former Article 667, and

•

Trespass.

IT IS FURTHER ORDERED that the Court dismisses WITHOUT
PREJUDICE the following claims against Defendants to the extent such claims have
been asserted:
•

Fraud,

•

Civil fruits, and

•

Strict liability under the post-1996 versions of Articles 667, 2317, and
2322.

IT IS FURTHER ORDERED that in all other respects, Defendants’ Motions
are DENIED.
THUS DONE AND SIGNED in Chambers on this 6th day of January, 2021.

DAVID C. JOSEPH
UNITED STATES DISTRICT JUDGE

16