Mary et al v. Q E P Energy Co
MEMORANDUM RULING re 49 MOTION for Partial Summary Judgment filed by Q E P Energy Co; 88 MOTION to Strike 87 Affidavit of Eric L Glover; and Affidavit of William J Wood Jr, attachment five (5) of document 85 Exhibits filed by Q E P Energy Co; and 93 Cross MOTION for Summary Judgment (Amended & Supplemented) filed by Pauls Land Co L L C, Cynthia Sue Mary. Signed by Chief Judge S Maurice Hicks, Jr on 12/6/2017. (crt,Williams, L)
UNTIED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CYNTHIA SUE MARY, ET AL.
CIVIL ACTION NO. 13-2195
JUDGE S. MAURICE HICKS, JR.
QEP ENERGY COMPANY
MAGISTRATE JUDGE HORNSBY
Before the Court are three Motions: (1) Defendant QEP Energy Company’s
(“QEP”) Motion to Strike (Record Document 88) the affidavits of Eric L. Glover (“Glover”)
and William J. Wood, Jr. (“Wood”); (2) QEP’s Motion for Partial Summary Judgment
(Record Document 49) seeking the dismissal of Plaintiffs Cynthia Sue Mary and Paul’s
Land Company, LLC’s (“Plaintiffs” or “Marys”) claims for a disgorgement of profits; and
(3) Plaintiffs’ Cross Motion for Partial Summary Judgment (Record Document 93) against
QEP on the issue of QEP’s bad faith, requiring a disgorgement of profits. For the reasons
stated in the instant Memorandum Ruling, QEP’s Motion to Strike is GRANTED IN PART
and DENIED IN PART; QEP’s objection to the affidavit of Michael E. White is
SUSTAINED; Plaintiffs’ objection to the affidavit of Alaina Szlavy is SUSTAINED IN
PART and OVERRULED IN PART; QEP’s Motion for Partial Summary Judgment is
GRANTED; and Plaintiffs’ Cross Motion for Partial Summary Judgment is hereby
FACTUL AND PROCEDURAL BACKGROUND
On September 20, 2006, Paul E. Mary, III and Cynthia Sue Mary (the “Marys”)
entered into separate oil and gas leases (the “Leases”) with Whitmar Exploration
Company (“Whitmar”) covering approximately 160 acres located in Section 14, Township
15 North, Range 10 West, Bienville Parish, Louisiana. See Record Document 1-3 at 1.
The Leases granted Whitmar the right to explore for and develop oil and gas, and to
conduct the operations reasonably incidental thereto, “including the use of the surface
and a right-of-way for the collection of geological and geophysical data, the drilling of core
samples, the installation of lease roads, the drilling and completion of oil and gas
production wells, the laying of pipelines …to produce, save and deliver to market the oil
and gas products produced from the leasehold premises.” Record Document 49-4 at 1.
Whitmar subsequently assigned all of its rights to Questar Exploration and Production
Company on March 19, 2007, which subsequently became QEP. See Record Document
1-3 at 2.
In late 2009, each of the Marys entered into a Surface Use Payment and Release
Agreement with QEP agreeing upon a location for the drilling pad for the Mary Et Al 14H
No. 1 Well (“Mary Well”) and for the construction of a road to service the Mary Well. See
Record Documents 49-6 and 49-7. QEP paid $41,882.00 for the use of the service road
described in the agreement. See id. On February 18 and 19, 2010, the Marys entered
into a Pipeline Servitude Agreement with QEP pursuant to which the Marys granted QEP
a thirty-foot wide permanent servitude for the installation of two gas and one saltwater
pipelines, covering a distance of approximately 6,258 feet. See Record Document 49-8.
QEP paid the Marys $189,645.00 pursuant to this Pipeline Servitude Agreement. See id.
QEP spudded the Mary Well on August 12, 2010. See Record Document 1-3. at 3. The
Marys and QEP then entered into a Subsurface Easement, pursuant to which the Marys
granted an easement for the purpose of drilling three directional well bores beneath the
Marys’ property. See Record Document 49-9. QEP paid the Marys $30,000.00 for this
Easement. See id. On May 11, 2011, Paul E. Mary, III transferred all of his interest,
including his mineral and lease rights, to the subject property to Paul’s Land Company,
L.L.C. See Record Document 1-3 at 3.
In July 2011, the Marys entered into an Amended Pipeline Servitude Agreement
which amended the earlier Pipeline Servitude Agreement and granted QEP the right to
install one additional above ground valve on its existing pipeline, paying $2,500.00 for this
right. See Record Document 49-10. On July 22 and 26, 2011, the Marys entered into an
additional Pipeline Servitude Agreement (the “Mary Pipeline Servitude”), which the Marys
granted QEP an additional pipeline servitude covering a distance of approximately 147.55
feet. See Record Document 49-11. The purpose of this Pipeline Servitude was to allow
QEP to connect the Pedro Wells, which were not located on the Marys’ property, to the
Mary pipeline which was on the Marys’ property. See id. However, the gas pipeline “cut
the corner” of the servitude granted by the Marys, and ran for a distance of approximately
thirty-one feet outside the designated boundaries of the servitude. See Record Document
49-12. In addition, the saltwater pipeline deviated outside the Mary Pipeline Servitude for
approximately fifteen feet. See id. These deviations are the subject of the instant Motions.
Plaintiffs originally filed suit on June 3, 2013, in the Second Judicial District of
Bienville Parish, Louisiana. See Record Document 1-3. QEP removed the action by a
Notice of Removal filed on July 2, 2013, based upon diversity of citizenship grounds. See
Record Document 1. QEP filed its Motion for Partial Summary Judgment on March 24,
2016. See Record Document 49. QEP asks the Court to dismiss Plaintiffs’ claims seeking
a disgorgement of profits, and seeking an election by Plaintiffs as to whether to keep the
pipelines located on their property or require their removal. See id. Plaintiffs originally
opposed QEP’s Motion (Record Document 69), but subsequently filed its own Cross
Motion for Partial Summary Judgment (Record Document 93) on June 16, 2016, asserting
QEP acted in bad faith in constructing and possessing the pipelines located outside of
the Mary Pipeline Servitude. QEP also moves to strike the affidavits of Glover and Wood,
which were offered by Plaintiffs in opposition to QEP’s Motion for Partial for Summary
Judgment. See Record Document 88.
LAW AND ANALYSIS
A. SUMMARY JUDGMENT
Rule 56 of the F.R.C.P. governs summary judgment. This rule provides that the
court “shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” F.R.C.P.
56(a). Also, “a party asserting that a fact cannot be or is genuinely disputed must support
the motion by citing to particular parts of materials in the record, including . . . affidavits .
. . or showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support
the fact.” F.R.C.P. 56(c)(1)(A) and (B). “If a party fails to properly support an assertion of
fact or fails to properly address another party’s assertion of fact as required by Rule 56(c),
the court may . . . grant summary judgment.” F.R.C.P. 56(e)(3).
In a summary judgment motion, “a party seeking summary judgment always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings . . . [and] affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (U.S. 1986) (internal quotations and citations
omitted). If the movant meets this initial burden, then the non-movant has the burden of
going beyond the pleadings and designating specific facts that prove that a genuine issue
of material fact exists. See Celotex, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554 (U.S. 1986);
see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A non-movant, however,
cannot meet the burden of proving that a genuine issue of material fact exists by providing
only “some metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d 1069, 1075
(5th Cir. 1994).
Additionally, in deciding a summary judgment motion, courts “resolve factual
controversies in favor of the nonmoving party, but only when there is an actual
controversy, that is when both parties have submitted evidence of contradictory facts.” Id.
Courts “do not, however, in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts.” Id.
“A partial summary judgment order is not a final judgment but is merely a pre-trial
adjudication that certain issues are established for trial of the case.” Streber v. Hunter,
221 F.3d 701, 737 (5th Cir.2000). Partial summary judgment serves the purpose of
rooting out, narrowing, and focusing the issues for trial. See Calpetco 1981 v. Marshall
Exploration, Inc., 989 F.2d 1408, 1415 (5th Cir.1993).
B. FEDERAL COURT SITTING IN DIVERSITY
Since this case is before the Court under its diversity jurisdiction, the Court must
apply the substantive law of Louisiana. See Bradley v. Allstate Ins. Co., 620 F.3d 509,
517 n. 2 (5th Cir. 2010), citing Erie R. R. v. Tompkins, 304 U.S. 64 (1938). The Fifth Circuit
in In re Katrina Canal Breaches Litigation stated the appropriate methodology to be
applied by a Federal Court sitting in diversity in Louisiana:
“To determine Louisiana law, we look to the final decisions of the
Louisiana Supreme Court in the absence of a final decision by the Louisiana
Supreme Court, we must make an Erie guess and determine, in our best
judgment, how that court would resolve the issue if presented with the same
case. In making an Erie guess, we must employ Louisiana’s civilian
methodology, whereby we first examine primary sources of law: the
constitution, codes, and statutes. Jurisprudence, even when it rises to the
level of jurisprudence constante, is a secondary law source in Louisiana.
Thus, although we will not disregard the decisions of Louisiana’s
intermediate courts unless we are convinced that the Louisiana Supreme
Court would decide otherwise, we are not strictly bound by them.”
495 F.3d 191, 206 (5th Cir. 2007) (citations and internal quotation marks omitted).
However, diversity cases in federal court are governed by federal, not state, rules
of evidence. See Fed. R. Evid. 101; Morris v. Homco Int'l, Inc., 853 F.2d 337, 341 (5th
Cir. 1988), citing Hanna v. Plumer, 380 U.S. 460, 473-74, 85 S.Ct. 1136, 1145 (1965).
A. Motions to Strike
QEP moves to strike the affidavits of Glover and Wood on the grounds that the
affidavits are not based upon personal knowledge, include opinion testimony the affiants
are not qualified to render, include rank speculation and conclusory opinions, and include
assertions regarding facts which are irrelevant. See Record Document 88-1 at 1. Although
not included in its Motion to Strike, QEP also objects to the affidavit of Michael E. White
(“White”). 1 See Record Document 100 at 3. Plaintiffs, in turn, object to the affidavit
testimony of Alaina Szlavy (“Szlavy”). See Record Document 69-36 at 10.
It is not necessary to file a motion to strike a defective affidavit. It is sufficient to simply object. See Fed.
R. Civ. P. 56; Cutting Underwater Technologies USA, Inc. v. Eerie U.S. Operating Co., 671 F. 3d 512, 515
(5th Cir. 2012).
Affidavit of Glover
Glover is the owner and manager of Horizon Land Works, L.L.C. (“Horizon”), which
has performed numerous surveys of pipeline servitudes for QEP, including the plat of
survey attached to the Pipeline Servitude Agreement between the Marys and QEP. See
Record Document 87 at 1. QEP asserts the affidavit fails to offer any basis for Glover’s
qualifications or expertise to opine about any issue relating to the survey, specifically
Glover’s opinion that “[i]t is also obvious from Winn’s ‘as built’ survey that QEP and/or its
contractor tried to ‘rope’ the pipelines into the pipeline servitude … This sort of installation
would have saved QEP and/or its contractor money on pipe and fittings.” See Record
Document 88-1 at 5. QEP considers Glover’s testimony as “rank speculation” and
“opinions unsupported by information actually known to [the Affiant].” Id. Plaintiffs believe
Glover’s position as owner of Horizon qualifies him to give his opinions under Rule 701
of the Federal Rules of Evidence.
This Rule provides:
If a witness is not testifying as an expert, testimony in the form of an opinion
is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining
a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.
Fed. R. Evid. 701. Under this Rule “a lay opinion must be based on personal perception,
must be one that a normal person would form from those perceptions, and must be helpful
to the [fact finder].” Texas A & M Research Found. v. Magna Trans., Inc., 338 F.3d 394,
403 (5th Cir. 2003). “In particular, the witness must have personalized knowledge of the
facts underlying the opinion and the opinion must have a rational connection to those
facts.” Id., quoting Mississippi Chem. Corp. v. Dresser-Rand Co., 287 F.3d 359, 373 (5th
Cir. 2002). “[R]ule 701 does not preclude testimony by business owners or officers on
matters that relate to their business affairs.” Id.
In the instant case, the Court finds that Glover has not been shown to have
personalized knowledge regarding the facts underlying his opinions on the issue of
pipeline construction costs. Glover’s opinion regarding this issue is based solely on the
“as built” plat of survey made by Winn Surveying & Engineering, L.L.C., which shows the
Mary pipeline “cutting the corner” of the L-shaped servitude. However, the affidavit does
not show Glover has any knowledge regarding construction costs of pipelines. Nothing in
the affidavit suggests Glover has any personal knowledge or expertise about what oil and
gas operators do.
Plaintiffs believe Glover, as owner of Horizon and having performed numerous
surveys for QEP, has acquired a “special knowledge of the considerations that influence
oil and gas operators in their choices of routes. It takes no genius to know and understand
that a shorter and more direct route for a pipeline ‘saves money on pipe and fittings.’”
Record Document 98 at 13. However, the Court does not allow Plaintiffs to draw this
inference because Rule 701 allows business owners to offer opinion testimony on matters
that “relate to their business affairs.” Id. (emphasis added); State Indus. Prod. Corp. v.
Beta Tech., Inc., 2008 WL 2230197, at *2 (S.D. Miss. 2008). Glover’s opinion regarding
the construction costs are based on matters that relate to the business affairs of QEP, not
Horizon. Although it might not take a genius to form Glover’s opinion, the affidavit fails to
suggest how Glover would have any personalized knowledge to reach such a conclusion.
Accordingly, the Court finds that Glover cannot testify as a lay witness on the issue of
pipeline construction costs in this case, and the Motion to Strike this testimony should be
Glover’s opinion that QEP “tried to rope” the pipelines is based on personal
knowledge as established within the affidavit. Glover goes on to state that “Horizon would
have never surveyed a pipeline route like that,” and “if [Glover] and William J. Wood were
to pull all of the pipeline surveys they completed for QEP, there was never a pipeline
surveyed by them that has the bends in the pipeline routes.” Record Document 87 at 3.
As owner of Horizon, Glover has seen numerous pipeline surveys; he is engaged in the
business of providing surveys to oil and gas operators, just like the one Horizon provided
QEP here. Although not a surveyor, it is a function of Glover’s own business to prepare
and provide land surveys, thus Glover has the personal knowledge required to give his
opinion regarding the “as built” survey to this extent. QEP’s Motion to Strike this testimony
Affidavit of Wood
Wood, a licensed and registered surveyor in Louisiana, is the owner of Wood
Surveying, L.L.C. Wood has performed surveys for Horizon on previous accounts. In the
instant matter, Wood supervised Chad E. Maricle, who surveyed and staked the pipeline
servitude for QEP. QEP wishes to strike from the record Wood’s opinion that “it is not
unusual for an oil and gas operator to avoid sharp 90 degree turns or elbows on both gas
and saltwater pipelines, as QEP has done here.” Record Document 85-5 at 3. QEP
believes Wood lacks personal knowledge or expertise about what oil and gas operators
do. See Record Document 88-1 at 7.
Again, Wood may not testify to matters that do not relate to his business affairs.
Wood’s affidavit does not establish that he, as a surveyor, has any personal knowledge
about what oil and gas operators do. Wood is attempting to give his opinion regarding the
business affairs of QEP, not Wood Surveying, L.L.C. Accordingly, this statement must be
stricken from Wood’s affidavit.
B. Affidavit Objections
Affidavit of Szlavy
Plaintiffs believe the affidavit of Szlavy must be disregarded as improper summary
judgment evidence because she does not have personal knowledge of the relevant facts.
See id. at 13. Plaintiffs argue Szlavy does not have personal knowledge because she
admitted in her affidavit, “I was not present at the site during the construction of the Mary
pipeline….” See id. Plaintiffs dispute Szlavy’s personal knowledge with respect to three
separate paragraphs in her affidavit. See id. at 13-14.
In Paragraph 17, Szlavy testified “I am not aware of any person who was employed
by QEP deviating from a designated servitude or right of way either on Marys’ property
or anywhere else.” Record Document 49-3 at 4. Plaintiffs suggest nothing in Szlavy’s
affidavit shows that she is in a position to know of any such deviation; while QEP asserts
her position as a landman enabled her to be cognizant of deviations occurring. As part of
her job as a landman, it was her responsibility to insure that QEP obtained the proper
authority, whether pursuant to the terms of the lease or from an additional agreement, for
the construction of wells and pipelines on the property of QEP’s lessors. See id. Szlavy’s
job responsibilities, QEP contends, enabled her to have “personal knowledge of the
relationship between QEP and Plaintiffs.” However, Szlavy’s knowledge of QEP and
Plaintiffs’ relationship is insufficient to show she has personal knowledge of deviations
occurring from designated servitudes. Accordingly, paragraph 17 of Szlavy’s affidavit
must be disregarded.
Plaintiffs next complain that Szlavy is not competent to testify to the statements
contained in Paragraph 18, relating to whether QEP obtained a financial advantage by
“cutting the corner” of the servitude. See Record Document 69-36 at 14. That paragraph,
read in its entirety, reads as follows:
With respect to the connection from the Pedro well, QEP did not obtain any
financial advantage by laying this pipeline outside of the servitude as
opposed to inside of it. QEP made no more money on the gas or saltwater
transported through this pipeline than it would have made had the pipelines
been constructed entirely within the servitude.
Plaintiffs attempt to persuade the Court that Szlavy attempted to provide an analysis of
the costs of constructing the pipeline, but this simply is not true.
The “financial advantage” referred to by Szlavy is not the cost of constructing the
pipeline, but rather the profit made by QEP. Szlavy testified based on her knowledge and
experience as a landman that QEP did not make more money by transporting gas through
a shortened pipeline than it would have made had the pipeline been constructed within
the servitude. In fact, Szlavy acknowledged that she was not qualified to provide an
estimate for the construction costs of a gas pipeline in her deposition. See Record
Document 69-22 at 46. Plaintiffs’ contention that Szlavy lacked the personal knowledge
of the financial advantages of constructing a pipeline in one place or another is
Lastly, Plaintiffs suggest that Szlavy was not competent to testify as she did in
Paragraph 19 that “QEP certainly did not enhance its profits by ‘cutting the corner’ of the
servitude from the Pedro wells.” See Record Document 69-36 at 14. As explained above,
Szlavy was not addressing the costs of constructing a gas pipeline, but rather QEP’s
profits. Accordingly, Plaintiffs’ objection to Szlavy’s affidavit testimony in paragraph 19
has no merit.
Affidavit of White
Plaintiffs cited to White’s affidavit in their Supplemental and Amended Statement
of Facts in opposition to QEP’s Motion for Partial Summary Judgment. See Record
Document 94 at 3. Plaintiffs attempt to use White’s testimony, specifically paragraph
three, to show QEP benefitted from the location of the pipelines. See id. The relevant
language of paragraph three reads as follows:
It appears from the ‘as built’ surveys that the gas pipeline was constructed
in essentially a straight line from the producing well complex to the east to
west servitude line on the Mary property, without regard to the legal
servitude granted by the Marys for that purpose. The saltwater pipeline, as
shown by the ‘as built’ surveys, is curved, which substantially reduces the
friction. This is obviously more convenient and beneficial to QEP than
following the path of the legal servitude granted by the Marys. A comparison
of the cost to build the existing lines versus the cost for construction of the
lines had QEP followed the legal servitude was undertaken. The cost for
constructing the existing lines was calculated to be $24,388.86. If the lines
had been constructed within the legal servitude, the cost is estimated to
have been $47,639.75.
QEP has objected to White’s expert testimony for the following reasons: (1) White
is not qualified to render the opinions set forth in his affidavit; (2) White offers opinions
that are legal conclusions; and (3) White fails to set forth the methodology in support of
his opinion regarding construction costs. See Record Document 64-1 at 2. 2 Plaintiffs
QEP originally filed a Motion to Strike the White affidavit as it pertained to Plaintiff’s Motion to Compel (Record
Document 43). See Record Document 64. QEP has since objected to White’s affidavit attached to Plaintiffs’
Opposition to QEP’s Motion for Partial Summary Judgment, which subsequently became Plaintiffs’ Cross Motion for
argue the fact that White is not licensed as a civil engineer or as a surveyor in Louisiana
does not disqualify him as an expert. See Record Document 120 at 5. Moreover, Plaintiffs
believe White’s opinions are within his scope of expertise and are relevant and reliable.
See id. at 9.
Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule
702 states that “a witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise” if all of the
following elements are met:
a) the expert's scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
b) the testimony is based on sufficient facts or data;
c) the testimony is the product of reliable principles and methods; and
d) the expert has reliably applied the principles and methods to the facts of
This list of elements comes from Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 570 (1993), and its progeny. In Daubert, the Supreme Court stated that courts
are required to serve as gatekeepers for expert testimony, ensuring that such testimony
is both reliable and relevant before it is admitted into evidence. See id. at 589. Thus,
requiring the proponent of a particular expert to satisfy the four elements stated in Rule
702 is aimed at ensuring that any purported expert testimony is both reliable and relevant.
See Fed. R. Civ. P. 702, Notes of Advisory Committee on 2000 Amendments.
Certain factors should be considered in determining whether a particular expert's
opinions are reliable:
(1) whether the expert's technique or theory can be or has been tested—
that is, whether the expert's theory can be challenged in some objective
Partial Summary Judgment. See Record Document 100 at 3. The White affidavit QEP objected to here is the same
affidavit QEP originally moved to strike; therefore, the Court has taken into account QEP’s original arguments in its
Motion to Strike in analyzing QEP’s current objection.
sense, or whether it is instead simply a subjective, conclusory approach that
cannot reasonably be assessed for reliability; (2) whether the technique or
theory has been subject to peer review and publication; (3) the known or
potential rate of error of the technique or theory when applied; (4) the
existence and maintenance of standards and controls; and (5) whether the
technique or theory has been generally accepted in the scientific
Id., citing Daubert, 509 U.S. at 593-95. This list of factors is non-exclusive, as the factors
to be considered may vary depending upon the type of expert opinion at issue in a
particular case. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-50 (1999).
Relevance of expert testimony is a question of “fit,” i.e., whether the expert testimony in
question is well-suited to the issues of a particular case such that it will help the jury in
deciding these issues or in understanding evidence that is outside the average juror's
ability to understand absent such help. See Daubert, 509 U.S. at 591-92; see also In re
Schooler, 725 F.3d 498, 514-15 (5th Cir. 2013) (affirming exclusion of expert testimony
when the subject matter was within the common ability of jurors to understand without
Though the trial court must fulfill its role as gatekeeper in ensuring that all admitted
expert testimony is both reliable and relevant, “the trial court's role as gatekeeper is not
intended to serve as a replacement for the adversary system.” United States v. 14.38
Acres of Land Situated in Leflore Co., Miss., 80 F.3d 1074, 1078 (5th Cir. 1996). “The
rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702,
Notes of Advisory Committee on 2000 Amendments. “Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.” Daubert,
509 U.S. at 595.
The proponent of an expert's testimony bears the burden of proving that it meets
the requirements of Rule 702. Moore v. Ashland Chem., Inc., 151 F. 3d 269, 276 (5th Cir.
1998). Whether these elements are met is a preliminary question for the district court to
decide under Fed. R. Evid. 104(a). A district court has wide latitude in deciding whether
to admit expert testimony, and decisions on whether to admit or exclude such testimony
are reviewed for abuse of discretion on appeal. See Kumho Tire Co., 526 U.S. at 152-53.
QEP believes White is not qualified to render the opinions set forth in his affidavit
because he is (1) not a licensed engineer in Louisiana and (2) not a licensed or registered
surveyor. See Record Document 64-1 at 2. QEP cites no legal authority in support of its
arguments. Plaintiffs argue White’s lack of license does not disqualify his opinion; and
further, White’s education and experience in civil engineering, of which requires training
in the principles and practices of land surveying, are sufficient to qualify White as an
expert surveyor. See Record Document 120 at 8-9.
White graduated with a Bachelor of Science in Civil Engineering from the
University of Arkansas and is a licensed professional engineer in Arkansas, Minnesota,
and Tennessee. See Record Document 61 at 1. Plaintiffs argue White’s employment at
the Arkansas State Highway and Transportation Department as a Staff Survey Engineer,
coupled with his education, makes White “thoroughly familiar” with the art and practice of
surveying. See id. at 2. The Court agrees. It has long been established that a professional
civil engineer is qualified to testify as an expert surveyor. See Hall v. Barfield, 92 So.2d
753 (La. App. 2 Cir. 1957), Russell v. Producers Oil Co., 70 So. 92 (La. 1915), Russell v.
Producers Oil Co., 78 So. 473 (La. 1918). 3
This is a diversity action. Consequently, Louisiana law governs substantive matters while federal law governs
procedure. The admissibility of evidence is a procedural matter. The admissibility of expert testimony is governed
Although White is qualified to offer surveying opinions, certain opinions
nevertheless must be stricken from White’s affidavit. White asserts two opinions which
are outside of his expertise. After reviewing the two “as-built” surveys, White observes
the pipeline is “curved, which substantially reduces the friction. This is obviously more
convenient and beneficial to QEP than following the path of the legal servitude granted
by the Marys.” Record Document 69-9 at 2. “As a general rule, expert testimony must be
grounded in the methods and procedures of science and must be more than unsupported
speculation or subjective belief.” Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 668 (5th
Cir. 1999). White’s speculation that the pipeline’s curvature obviously benefited QEP is
not based on technical expertise, nor is it shown to be based on sufficient facts or data.
He simply comes to this conclusion by looking at the ‘as built’ surveys. White has offered
no reliable method or procedure to support his speculation that the curved pipelines were
beneficial to QEP. Thus, this opinion testimony of White is inadmissible.
The Court’s conclusion is bolstered by the fact that White’s opinion was premised
on an unreliable calculation of construction costs. To support his opinion that the selected
path was more beneficial to QEP, White provided a comparison of construction costs. He
found “[t]he cost for constructing the existing line was calculated to be $24,388.86. If the
lines had been constructed within the legal servitude, the cost is estimated to have been
$47,639.75.” Record Document 69-9 at 2. However, White’s calculations are unreliable
for two reasons: (1) he fails to set forth the underlying basis for his conclusions regarding
by Federal Rule of Evidence 702. However, decisions by Louisiana courts on the admissibility of expert testimony
apply the same standards required by Fed. R. Evid. 702. See State v. Foret, 628 So. 2d 1116, 1121 (La. 1993) (“[La.
C.E. art. 702] is virtually identical to its source provision in the Federal Rules of Evidence, F.R.E. 702”). Thus, the Court
finds the relevant decisions of Louisiana courts are persuasive authority.
the cost of pipeline construction, and (2) his opinion has been supplanted by further
calculations not included in his affidavit.
First, the White affidavit contains no underlying basis for his calculation. There is
no information as to how White arrived at these figures, all that is mentioned is there was
“a comparison of costs.” There is no indication that he contacted construction or supply
companies to determine the cost of labor, material, rental rates for equipment or any other
factors which might have impacted the cost of construction. White’s affidavit simply offers
no analysis of what he did or what he relied upon in reaching his conclusion regarding
the cost of construction.
Plaintiffs argue questions relating to the bases and sources of an expert’s opinion
affect the weight to be assigned that opinion rather than its admissibility. See United
States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty., State of Miss., 80
F.3d 1074, 1077 (5th Cir. 1996). However, in 14.38 Acres, the two experts in question
offered much more in support for their conclusion. The experts had shown they had
reviewed maps, photographs, and data; inspected the property; discussed with other
experts; and compared other sales. See id. Here, White does nothing of the sort, only
stating, “A comparison of the cost…was undertaken.” Record Document 69-9 at 2. As
Plaintiffs state in their brief, “the focus of the ‘gatekeeper’ under Rule 702 ‘must be solely
on principle and methodology, not on the conclusions they generate.’” Record Document
120 at 9, citing Daubert, 509 U.S. at 595, 113 S.Ct. at 2797. However, the Court cannot
focus on the methodology when there is none. Put simply, the White affidavit offers no
factual or analytical support whatsoever.
Second, White’s calculation of costs has since been revised. The calculations in
the White affidavit were provided on March 31, 2016. Following the White affidavit, QEP
deposed Dr. Jerry Overton (“Overton”) of ATOKA, the firm which employs White, on July
16, 2016. See Record Document 121-1. When asked about White’s calculations
regarding the pipeline construction costs, Overton admitted, “this was our original
cost…It’s been revised.” Id. at 3. Overton stated that White’s original estimates were
based upon the entire length of the pipelines and not just the portion that ran through the
Marys’ property. See id. Since White offers no methodology to support his opinion and
his calculations are admittedly inaccurate, the Court finds White’s expert testimony
unreliable and inadmissible.
Although White is qualified as an expert to testify as a surveyor, such expertise
does not enable him to offer conclusions which are not supported by any sufficient facts
or data. Moreover, the comparison of construction costs is unreliable because it lacks any
underlying basis to support the calculations, and further, it is admittedly inaccurate and
has since been revised. For these reasons, the objected-to portions of paragraph three
must be disregarded.
C. Cross-Motions for Partial Summary Judgment
Having addressed QEP's Motion to Strike and the parties’ objections to certain
affidavits, the Court is now ready to consider the cross-motions for partial summary
judgment. QEP seeks partial summary judgment dismissing Plaintiffs’ claims to the extent
they seek a disgorgement of profits or an election by Plaintiffs as to whether to keep the
pipelines located on their property or require their removal. Each of these remedies
requires a finding that QEP acted in bad faith in placing the gas and saltwater pipelines
outside the designated servitude. See Record Document 49. Plaintiffs originally opposed
QEP’s Motion for Partial Summary Judgment (Record Document 69), but have since filed
their own Cross Motion for Partial Summary (Record Document 93) asserting there exists
no genuine dispute to the fact that QEP acted in bad faith. As will be explained more fully
below, the Court finds QEP did not act in bad faith.
The Pipelines at the Pedro Well Connection
Plaintiffs contend QEP was in bad faith when it located portions of the saltwater
and gas pipelines which connect the Pedro well to the Mary pipeline outside the servitude
which was specifically granted for that purpose. 4 See Record Document 93. QEP argues
there is no factual support for Plaintiffs’ claim that it acted in bad faith. See Record
The underlying legal theory for Plaintiffs' claim for disgorgement of profits is La.
Civ. Code art. 486, which provides:
A possessor in good faith acquires the ownership of fruits he has
gathered. If he is evicted by the owner, he is entitled to reimbursement of
expenses for fruits he was unable to gather.
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
La. C.C. Art. 486. Likewise, in SGC Land, LLC v. Louisiana Midstream Gas Servs., 939
F.Supp.2d 612 (W.D. La. 2013), amended on reconsideration in part (Aug. 3, 2013), this
QEP also states Plaintiffs contend QEP acted in bad faith by locating pipelines underneath the Mary well pad, rather
than within the separate pipeline servitude which they later granted to QEP. See Record Document 49-1 at 11.
However, Plaintiffs do not argue this act constituted bad faith in any of their briefs, focusing their argument of bad
faith only on the pipelines at the Pedro well connection. Accordingly, the Court will only address the pipelines at the
Pedro well connection in its analysis of bad faith.
Under Louisiana law, the remedy of disgorgement of profit is
available upon the showing of bad faith possession.... The question whether
a possessor be in good faith or in bad faith (legal or actual) is the sole factor
in determining whether such possessor should or should not account for the
fruits of his possession. This doctrine stems from La. C.C. art. 486 which
provides in part that a possessor in bad faith is bound to restore to the owner
the fruits he has gathered, or their value.
Id. at 619 (internal citations and quotations omitted). Just as in SGC Land, there is no
competent evidence in the summary judgment record proving or indicating that the
ultimate location of the pipeline involved bad faith.
The Court finds SGC Land extremely persuasive in the instant matter as both
cases involve almost identical facts. In SGC Land, the parties had entered into not only
mineral leases, but additional easements for construction, operation, and maintenance of
a pipeline, with no restrictions preventing or limiting the pipeline from being used to
transport third party gas. See id. at 614-15. There, Midstream constructed less than thirty
feet of the pipeline approximately four feet outside the designated area, and the
landowners filed suit for trespass, seeking a disgorgement of profits. See id. at 616.
The court found the SGC Land plaintiffs failed to present any evidence showing
legal bad faith on the part of Midstream in the construction or operation of the pipeline.
See id. at 620. “Midstream specifically negotiated an agreement with the plaintiffs for the
sole purpose of transporting third party gas and attempted to construct the pipeline in
accordance with such.” Id. In further support of its ruling, the Court noted the plaintiffs
“have not provided any evidence demonstrating any advantages, financial incentives, or
profits which would motivate the deviation of four feet from the agreed upon right of way.
Chesapeake (Midstream) did not receive any additional profits attributable to placing the
pipeline slightly outside the planned path.” Id. The Court also considered the lack of
damage sustained by the plaintiffs in its ruling in favor of Midstream/Chesapeake, ruling,
“This Court is not inclined to resort to the harsh remedy of requiring either the destruction
of the encroaching pipeline or the disgorgement of profits under the circumstances
provided.” Id. at 619.
QEP admittedly located portions of the saltwater and gas pipelines which connect
the Pedro well to the Mary pipeline outside the servitude which was specifically granted
for that purpose. The gas and saltwater pipelines run outside the servitude for a distance
of thirty-one feet and fifteen feet, respectively. However, this alone is not sufficient to
prove bad faith. The Court also finds Plaintiffs, like the plaintiffs in SGC Land, “have not
provided any evidence demonstrating any advantages, financial incentives, or profits”
which would motivate QEP’s deviation of forty-six feet.
As shown above, Plaintiffs have gone to great lengths to produce any evidence
whatsoever of bad faith; however, Plaintiffs’ attempts are futile. The only conceivable bad
faith evidence Plaintiffs have provided is that QEP “tried to ‘rope’ the pipelines into the
pipeline servitude.” Record Document 88-1 at 5. However, Plaintiffs have not introduced
any evidence to show how/why “roping” the pipelines would be advantageous to QEP.
Likewise, Plaintiffs fail to introduce any evidence of any financial incentive or additional
profit which would have motivated QEP to deviate from the designated servitude. In fact,
Szlavy’s affidavit testimony states the exact opposite, “QEP did not obtain any financial
advantage by laying this pipeline outside of the servitude as opposed to inside of it. QEP
made no more money on the gas or saltwater transported through this pipeline than it
would have made had the pipelines been constructed entirely within the servitude.”
Record Document 49-3 at 5. Additionally, a review of the evidence shows QEP erred on
the side of caution in exercising its rights upon Plaintiffs’ property. On multiple occasions
QEP obtained additional rights beyond those granted under the Leases, and paid
substantial sums of money for those rights before conducting activity on Plaintiffs’
Just as in SGC Land, Plaintiffs are also unable to demonstrate any damages
sustained because of QEP’s misplacement of the pipelines. When asked by opposing
counsel, neither Plaintiff could identify a single element of damage they suffered. See
Record Document 57-1 at 14; Record Document 57-2 at 10. Plaintiffs have failed to
present sufficient evidence to show any advantages, financial incentives, or profit to
motivate QEP’s deviation, nor have Plaintiffs presented any evidence of any damage
actually suffered by Plaintiffs as a result of QEP’s deviation. For these reasons, the Court
“is not inclined to resort to the harsh remedy of requiring either the destruction of the
encroaching pipeline or the disgorgement of profits under the circumstances provided.”
In another attempt to prove QEP’s bad faith, Plaintiffs suggest the Civil Code
articles on accession and acquisitive prescription should apply to the determination. See
Record Document 90 at 6. La. Civ. Code art. 487 provides:
For purposes of accession, a possessor is in good faith when he
possesses by virtue of an act translative of ownership and does not know
of any defects in his ownership. He ceases to be in good faith when these
defects are made known to him or an action is instituted against him by the
owner for the recovery of the thing.
Plaintiffs contend QEP cannot be found in good faith under this article because (1) QEP
does not possess a pipeline servitude over the property on which the pipeline is located
by an act of translative ownership and (2) QEP knew or should have known that the
pipelines were being constructed outside the of the limits of the pipeline servitude granted
by the Marys. 5 See Record Document 90 at 6-7.
However, an analysis of Article 487 under these facts is unnecessary because this
Court, and numerous Louisiana appellate courts, have expressly rejected the applicability
of the Civil Code’s accession articles to the type of encroachment action being asserted
by Plaintiffs in this case. In SGC Land, the plaintiffs asserted a virtually identical claim
based upon the defendant’s construction of a pipeline outside an agreed upon right-ofway. See SGC Land, 939 F.Supp.2d 612. The plaintiffs sought damages for disgorgement
of profits based upon the defendant’s alleged trespass on their property. See id. at 616.
In analyzing these claims, this Court observed that under Louisiana law, a civil trespass
is the “unlawful invasion of the property or possession of another.” Id. at 619, citing
Boudreaux v. Plaquemine Parish Government, 22 So.3d 1117, 1118 (La. App. 4 Cir.
2009). The Court found there was no question that defendant Chesapeake was
authorized to construct the pipeline virtually anywhere on the property in order to service
wells located therein, and “therefore did not unlawfully invade Plaintiffs’ property with
respect to the placement of the pipeline…The Court does not believe Chesapeake
trespassed onto Plaintiffs’ land when it transported third party gas through the minor
deviation in the pipeline’s agreed upon path.” Id. Rather than analyzing the defendants’
liability under the provisions of Article 487, this Court found “the more appropriate analysis
Plaintiffs also argue QEP cannot be found in good faith after this lawsuit was filed. See Record Document 69-36 at
19. Plaintiffs’ assertions are based on the language of Article 487, “he ceases to be in good faith when…an action is
instituted against him by the owner for the recovery of the thing.” However, as will be discussed more fully below,
the definition of good faith found in La. Civ. Code art. 487 is not applicable to encroachment under La. Civ. Code art.
regarding damages stems from the doctrine of encroachment” found in La. Civ. Code art.
When a landowner constructs in good faith a building that encroaches on
an adjacent estate and the owner of that estate does not complain within a
reasonable time after he knew or should have known of the encroachment,
or in any event complains only after the construction is substantially
completed the court may allow the building to remain. The owner of the
building acquires a predial servitude on the land occupied by the building
upon payment of compensation for the value of the servitude taken and for
any other damages the neighbor has suffered.
SGC Land, 939 F.Supp.2d at 620.
Louisiana state courts have similarly rejected the applicability of the Civil Code
articles on accession to landowner claims of encroachment. In Winingder v. Balmer, 632
So.2d 408 (La. App. 3 Cir. 2013), the court expressly rejected the same claim now being
asserted by the Plaintiffs, that the defendants could not be in good faith without an act
translative of title:
Plaintiffs base their argument on the definition of “possessor in good faith”
found in Civil Code art. 487. We disagree. That article requires the good
faith possessor to possess by virtue of an act translative of title. The opening
language of art. 487 restricts that definition of good faith solely “for the
purposes of accession . . .” Art. 670 does not appear in the same title of the
Civil Code as art. 487. Accordingly, the definition of good faith found in art.
487 is not applicable to the provisions of art. 670.
Id. at 414, citing Bushell v. Artis, 445 So.2d 152 (La. App. 3d Cir. 1984); Theresa Seafood,
Inc. v. Berthelot, 40 So.3d 132 (La. App. 4 Cir. 2010) (analyzing art. 670 to deny
demolition where the record showed the encroachments were in place for several years
prior to the lawsuit, and neither party was aware of the encroachments until a survey was
conducted in connection with the lawsuit).
The Court in SGC Land found that Chesapeake built its pipeline structure in good
faith on adjacent land without complaint by the plaintiffs about the encroachment prior to
the pipeline being substantially completed. This Court found that as a matter of law,
Chesapeake was entitled to a predial servitude on the reasonable areas surrounding the
pipeline, subject to its obligation to pay “fair compensation” for the value of the servitude.
Here, the Leases granted QEP a lease on the entirety of the 160 acres of property
the Marys owned, and included “the use of the surface and a right-of-way for the collection
of geological and geophysical data…the installation of lease roads…the laying of
pipelines…to produce, save and deliver to market the oil and gas products produced from
the leasehold premises.” As in SGC Land, QEP was authorized to construct the pipelines
anywhere on the property. While the Mary Pipeline Servitude did establish a set location
to place the pipeline in order for it to transport third-party gas, the Court, as it held in SGC
Land, does not believe QEP trespassed onto Plaintiffs’ land when in transported thirdparty gas through the thirty-one-foot deviation in the pipeline’s agreed upon path.
Applying Article 670 to the instant case, QEP, considered a landowner based on
their rights acquired from both the Leases and the additional pipeline servitude, built
structures 6 in good faith on adjacent land, without complaint by the Plaintiffs until the
pipeline had actually been in use for years. As this Court found as a matter of law in SGC
Land, QEP is entitled to a predial servitude of the reasonable area surrounding the
pipelines located outside the agreed upon right of way in which the pipelines have been
As an added alternative justification for today’s ruling, this Court proceeds in equity
under La. Civ. Code art. 4. Even if QEP’s construction of the pipelines did not satisfy each
of the technical requirements of Article 670, no reasonable juror could find that QEP acted
See Winingder v. Balmer, 632 So.2d 408, 411 (La. Ct. App. 1994); Lakeside Nat. Bank of Lake Charles v. Moreaux,
576 So.2d 1094, 1098 (La. Ct. App. 1991).
in bad faith in constructing the pipelines. There is no competent evidence in the record
proving or indicating that the ultimate location of the pipelines involved bad faith.
Furthermore, Plaintiffs have been unable to identify any damage suffered from the slight
deviation of the pipelines outside the designated right of way. Accordingly, this Court is
not inclined to resort to the harsh remedy of requiring either the destruction of the
encroaching pipelines or the disgorgement of profits under the circumstances presented.
QEP’s Motion for Partial Summary Judgment is granted and Plaintiffs’ Cross Motion for
Partial Summary Judgment is denied.
QEP’s Motion to Strike (Record Document 88) the affidavit testimony of Glover and
Wood is hereby GRANTED IN PART and DENIED IN PART. Additionally, QEP’s
objection to the affidavit of Michael E. White is SUSTAINED and Plaintiffs’ objection to
the affidavit of Alaina Szlavy is SUSTAINED IN PART and OVERRULED IN PART.
QEP’s Motion for Partial Summary Judgment (Record Document 49) dismissing Plaintiffs’
claims seeking a disgorgement of profits is GRANTED as there is no competent evidence
in the record that QEP acted in bad faith. The removal of the pipelines is not required.
Consequently, Plaintiffs’ Cross Motion for Partial Summary Judgment (Record Document
93) is DENIED.
THUS DONE AND SIGNED in Shreveport, Louisiana, this the 6th day of
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