Palmer et al v. Sun Coast Contracting Services, LLC et al

Filing 332

Order Denying Plaintiffs' Motions for Partial Summary Judgment on the Issue of Due Care Against Defendant Drying Facilities (Sic) Asset Holdings, LLC, 238 , and Defendant Linfield, Hunter & Junis, Inc. 261 Signed by District Judge Halil S. Ozerden on July 7, 2017. (BGL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JEFFERY CHAD PALMER, et al.
v.

PLAINTIFFS
CIVIL NO. 1:15cv34-HSO-JCG

SUN COAST CONTRACTING SERVICES, INC., et al.

DEFENDANTS

ORDER DENYING PLAINTIFFS’ MOTIONS FOR
PARTIAL SUMMARY JUDGMENT ON THE ISSUE
OF DUE CARE AGAINST DEFENDANT DRYING
FACILITIES (SIC) ASSET HOLDINGS, LLC, [238], AND
DEFENDANT LINFIELD, HUNTER & JUNIS, INC. [261]
BEFORE THE COURT are Plaintiffs’ Motions for Partial Summary
Judgment on the Issue of Due Care against Defendant Drying Facilities (sic) Asset
Holdings, LLC, [238], and Defendant Linfield, Hunter & Junis, Inc. [261].
Motions are fully briefed.

These

For the reasons that follow, the Court finds that

Plaintiffs’ Motions are not well taken and should be denied, and that Plaintiffs
should not be permitted to pursue a negligence per se theory of liability at trial.
I. BACKGROUND
A.

Facts and Procedural History
Plaintiffs Jeffery Chad Palmer, Brenda and Mark Rody, Donald and Jennifer

Juan, David and Karen Taporco, Kimberly and Milton J. Jacobs, Jr., Mary and
Nicholas Sciambra, and Anthony Pressley (“Plaintiffs”) are owners of houses in the
Ravenwood Subdivision located in an “unincorporated section of Pearl River
County, Mississippi (“PRC”)[,] just south of the city limits of Picayune, Mississippi.”
Am. Compl. [68] at 2, 6.

Plaintiffs allege that at the time they purchased their

houses in Ravenwood Subdivision (“Ravenwood”), the land comprising Ravenwood
together with a larger parcel of land served as a “watershed” for the Alligator
Branch waterway and allowed the overflow of that waterway to move “east and
west away from” Ravenwood. Id. at 6-7.
Plaintiffs contend that beginning on February 23, 2012, their houses began
“vibrating violently” when Defendants began driving large pilings into the ground
on a section of land contained within the watershed. Id. at 8-9.

Plaintiffs

complained to the Pearl River County Board of Supervisors (the “Board”) and the
contractors but the construction/vibrations continued. Id.

Plaintiffs also

questioned the Board about the dump trucks that were coming and going from the
property. Id.
The Board allegedly did not respond to Plaintiffs’ complaints or inquires until
at a meeting held on March 5, 2012, when the Board announced that Defendant
Alliance Consulting Group, LLC (“Alliance”), had previously been granted
permission to construct a “frac sand plant” (“the Plant”) on a section of land
contained within the watershed that Alliance had leased from Defendant AHG
Solutions, LLC.

Id. at 6, 8.

constructed at the Plant.

Later in 2015, “a multi-track railroad spur” was

Linfield, Hunter & Junis, Inc., Mem. Summ. J. [233] at

3.
On February 5, 2015, Plaintiffs filed a Complaint [1] in this Court against a
number of Defendants, alleging they had suffered damages to their houses and

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quality of life due to the construction and operation of the Plant and the associated
rail spur. Plaintiffs filed an Amended Complaint on February 4, 2016, naming as
Defendants Sun Coast Contracting Services, LLC; Integrated Pro Services, LLC;
Ranger Contracting, LLC; H&H Trucking, LLC; AHG Solutions, LLC; Linfield,
Hunter & Junius, Inc.; Shale Support Services, LLC; Drying Facility Asset
Holdings, LLC; and ELOS Environmental, LLC.1 Am. Compl. [68] at 2-4.
Plaintiffs allege that vibrations from pile-driving during construction caused
“obvious and visible cracks in the brick veneer of their homes, cracks in the stucco,
separations of the walls in comers (sic) and around doors and windows, windows
that would no longer open, and cracks” in the foundations of the houses; that
development of the land increased flooding in their subdivision; that the Plant
produces continuous loud noises as it runs throughout the night; that the Plant
emits a “nauseating foul smell;” and that dust from the Plant’s operations settles
over their property. Id. at 9-13.

The Amended Complaint asserts claims against

Defendants in four separate counts, specifically for: (1) Negligence; (2) Trespass; (3)
Private Nuisance; and (4) a Declaratory Ruling. Id. at 11-13.

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  Plaintiffs’ original Complaint also named the Federal Emergency Management Agency
and the United States Army Corp of Engineers; however, these Defendants were dismissed
by the Court’s October 6, 2015, Order [24]. The Complaint had also identified Advanced
Inc. Group as a Defendant but Advanced was omitted from the Amended Complaint. 

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B.

Plaintiffs’ Motions for Partial Summary Judgment on the Issue of Due Care.
On March 20, 2017, Plaintiffs filed a Motion for Partial Summary Judgment

on the Issue of Due Care against Defendant Drying Facilities (sic) Asset Holdings,
LLC (“Drying Facility”), [238], and on March 28, 2017, they filed their Motion
against Defendant Linfield, Hunter & Junis, Inc. (“LH&J”) [261].

Defendant

Drying Facility is the current owner of the “sand drying and sorting facility (the
“Plant”) located at 105 Street A, Picayune, Mississippi in the City of Picayune’s
Industrial Park,” having purchased the Plant in October 2014.

Drying Facility

Mem. Summ. J. [235] at 2-7. Defendant LH&J “is an engineering/architecture,
land survey, and landscape architecture and design firm established in 1957.”
LH&J Mem. Summ. J. [233] at 3.

LH&J entered into three contracts related to the

Plant: “(1) land surveying, (2) architecture relative to the control building located on
the site, and (3) drainage design for the site.”

LH&J Mem. Summ. J. [233] at 4.

Plaintiffs’ present Motions allege that these Defendants had “a duty to take
into consideration all flood hazard issues related to design, construction and
operation of the frac sand plant.” Mot. [238] at 1; Mot. [261] at 1.

Plaintiffs argue

in their Motions that Defendants Drying Facility and LH&J (“Defendants”) were
“negligent as a matter of law because [they] failed to follow the City and County
ordinances and Plaintiffs are within the class protected by the ordinances and
suffered the type of harm sustained protected (sic) by the ordinances.”

Mot. [238]

at 2; Mot. [261] at 2. Plaintiffs seek a partial summary judgment against

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Defendants on the issue of due care on the theory that these two Defendants are
negligent per se for violating City and County flood ordinances, leaving only the
issues of causation and damages for trial as against them.

Specifically, Plaintiffs

claim that Defendants violated the Flood Damage Prevention Ordinance for the
City of Picayune, Mississippi, see Ex. 2 [261-2] at 1, and the Flood Damage
Prevention Ordinance for Pearl River County, Mississippi, see Ex. 3 [261-3] at 1-2.
Defendants’ Responses [275] [287] maintain that Plaintiffs have not
established that Defendants were negligent per se, Resp. [275] at 1; Resp. [287] at 1,
and that Plaintiffs’ Motions should be denied because the Amended Complaint
failed to allege a cause of action for negligence per se, Mem. in Opp’n [276] at 3-4;
Mem. in Opp’n [288] at 2.

Alternatively, Defendants assert that Plaintiffs have

failed to show that they have a right of private action for any alleged violation of the
City or County ordinances, or that Defendants have violated the ordinances.

Mem.

in Opp’n [276] at 4-9; Mem. in Opp’n [288] at 2-7. Defendants further argue that
Plaintiffs cannot establish causation.
II.
A.

DISCUSSION

Summary Judgment Standard
“Summary judgment is appropriate when there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a matter of law.”
Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir. 2014); see Fed. R. Civ.
P. 56(a). In deciding a motion for summary judgment, a court “view[s] the evidence

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and draw[s] reasonable inferences in the light most favorable to the nonmoving
party.”

Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir.

2015) (quoting Cox, 755 F.3d at 233); Maddox v. Townsend & Sons, Inc., 639 F.3d
214, 216 (5th Cir. 2011).

Before it can determine that there is no genuine issue for

trial, a court must be satisfied that “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

If the movant carries this burden,

“the nonmovant must go beyond the pleadings and designate specific facts showing
that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc); see also Lujan v. National Wildlife Federation, 497
U.S. 871, 888 (1990) (the nonmovant must set forth specific facts to contradict the
specific facts set forth by the movant, general averments are not sufficient).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000).

“A genuine dispute of material fact means that evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R
Tres Arboles, LLC, 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). An
actual controversy exists “when both parties have submitted evidence of
contradictory facts.” Salazar-Limon v. Houston, 826 F.3d 272, 277 (5th Cir. 2016)
(quotation omitted).

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B.

Plaintiffs’ Motions for Partial Summary Judgment [238] [261] should be
denied because the Amended Complaint [68] failed to assert a cause of action
for negligence per se.
Plaintiffs seek entry of a partial summary judgment that Drying Facility and

LH&J are negligent per se for violating City and County flood ordinances, leaving
only the issues of causation and damages for trial. Defendants contend, among
other things, that Plaintiffs’ Motions should be denied because the Amended
Complaint does not assert a claim for negligence per se.
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.”

Wooten v. McDonald Transit Associates, Inc., 788 F.3d 490, 498 (5th Cir.

2015). The Amended Complaint clearly stated a claim for negligence, as follows:
COUNT 1
NEGLIGENCE
33.
Defendants AHG, DFAH, S3, Linfield, Hunter & Junius,
Inc., ELOS, Sun Coast Contracting Services, LLC, Integrated Pro
Services, LLC, Ranger Contracting, LLC, H&H Trucking, LLC and John
Does 1-5 had a duty to take into consideration all flood hazard issues
related to the design, construction and operation of the frac sand plant.
34.
Defendants breached that duty by beginning construction
before permits were obtained, failing to properly apply for permits,
failing to act reasonably in anticipating damage that may occur to
Plaintiffs, and failing to take ameliorative steps as may be reasonably
necessary or appropriate to assure that the Plaintiffs’ land,
improvements and ability to peacefully enjoy their homes was not
burdened inequitably.
35.
Defendants failed to act in a reasonable and prudent way
to safeguard the correlative interests of Plaintiffs.

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Am. Compl. [68] at 11-13.
Although the Amended Complaint did not specifically state a claim for
negligence per se, under Mississippi law “negligence per se is a subset of negligence
in general, whether it be contributory, comparative or otherwise.

Thus a pleading

of negligence . . . would encompass negligence per se.” Snapp v. Harrison, 699 So.
2d 567, 571 (Miss. 1997) (emphasis in original).

However, for Plaintiffs’ assertion

of their negligence claim in Count 1 to “encompass” a negligence per se claim,
Plaintiffs were still required to adequately plead a “negligence per se” claim within
the meaning of the Federal Rules of Civil Procedure.
Under Mississippi law, to adequately plead a negligence per se claim
premised upon the violation of a statute or an ordinance, a plaintiff must plead
that: “(1) the defendant breached a statute or ordinance; (2) the plaintiff was within
the class protected by the statute or ordinance; and (3) ‘the violation proximately
caused his injury.’” Faul v. Perlman, 104 So. 3d 148, 156 (Miss. Ct. App. 2012)
(quoting Palmer v. Anderson Infirmary Benevolence Ass’n, 656 So. 2d 790, 796
(Miss. 1995)). No such allegations appear in Count 1.
In the present case, Plaintiffs’ claim for negligence did not identify any
statute or ordinance, did not allege that Plaintiffs were within the class protected
by the statute or ordinance, and did not allege that their injuries were proximately
caused by Defendants’ alleged violation of a statute or ordinance.

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The Court finds

that Plaintiffs’ negligence claim in Count 1 did not include any of the elements
required to properly assert a claim for negligence per se. See Benson v. Rather, 211
So. 3d 748, 755-56 (Miss. Ct. App. 2016) (finding that plaintiff failed to plead a
cause of action that an alleged violation of the International Building Code
constituted negligence per se); Faul, 104 So. 2d at 156 (finding that trial court
properly dismissed negligence per se claim as insufficiently pleaded).
A plain reading of the Amended Complaint reveals that Plaintiffs did not
sufficiently plead a claim for negligence per se, nor have they presented sufficient
competent summary judgment proof that they are entitled to a partial summary
judgment on their negligence per se claims as to either Defendant.2
C.

To the extent Plaintiffs’ Motions could be construed as containing a request
for leave of Court to amend their Complaint, such a request should be denied.
Plaintiffs’ Motions contain no specific request for leave to amend their

pleadings.

To the extent Plaintiffs’ Motions could be construed as seeking leave to

amend their Amended Complaint, Plaintiffs have failed to show “good cause” for

2 Alternatively, Defendants argue that Plaintiffs’ Motions should be denied because
Plaintiffs have cited to no authority to support their position that they enjoy a private right
of action to seek redress of any violation of either the City or County ordinances. See Hill
v. City of Horn Lake, 160 So. 3d 671, 681 (5th Cir. 2015); see also City of Houston v. TriLakes Limited, 681 So. 2d 104, 109-10 (Miss. 1996). Without deciding this alternative
argument on the merits, at a minimum it appears that Plaintiffs have not carried their
initial summary judgment burden to establish that they have a private right of action
under either the City or County ordinances. It is undisputed that Plaintiffs do not live in
the City, thus the City Ordinance can afford them no private right of action. Also, the
County Ordinance, by its own terms, does not appear to create a private right of action, and
Plaintiffs have offered no other legal authority to support their position.

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allowing an untimely amendment. Under the standard of Federal Rule of Civil
Procedure 16(b)(4), “[a] schedule may be modified only for good cause and with the
judge’s consent.”

In determining whether good cause exists

[u]nder Federal Rule of Civil Procedure 16(b)(4), “[a] [scheduling
order] may be modified only for good cause and with the judge’s consent.”
To show good cause, the party seeking to modify the scheduling order
has the burden of showing “that the deadlines cannot reasonably be met
despite the diligence of the party needing the extension.” Filgueira v.
US Bank Nat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013) (per curiam)
(internal quotation marks and citation omitted). There are four
relevant factors to consider when determining whether there is good
cause under Rule 16(b)(4): “(1) the explanation for the failure to timely
[comply with the scheduling order]; (2) the importance of the
[modification]; (3) potential prejudice in allowing the [modification]; and
(4) the availability of a continuance to cure such prejudice.” Meaux
Surface Protection, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010)
(internal quotation marks and citation omitted).
Squyres v. Helico Cos. LLC, 782 F.3d 224, 237 (5th Cir. 2015).
This case has been pending since February 5, 2015. The Case Management
Order [32] set the deadline for filing amended pleadings for December 28, 2015.
On December 28, 2015, Plaintiffs filed a Motion [50] seeking leave to amend their
Complaint [1], which this Court granted in its January 19, 2016, Order [64].

On

February 4, 2016, Plaintiffs filed their Amended Complaint [68].
The deadline for submitting amended pleadings passed over a year and a half
ago and this case is set for trial on the Court’s August 2017 trial calendar.

To the

extent Plaintiffs’ Motions could somehow be construed to seek leave to amend their
Complaint [68], such an “eleventh-hour” request should be denied because Plaintiffs

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have not shown good cause within the meaning of Rule 16(b)(4). Waterman v.
McKinney Indep. Sch. Dist., 642 F. App’x 363, 368 (5th Cir. 2016) (quoting Hypes ex
rel. Hypes v. First Commerce Corp., 134 F.3d 721, 728 (5th Cir. 1998)).

Indeed,

Plaintiffs have made no real effort to explain or argue how any of the four factors
relevant to the good cause standard are satisfied here.

No explanation has been

offered for the failure to comply with the scheduling order, or how the potential
prejudice to opposing parties would not be significant, and the Court finds that
Defendants would be significantly prejudiced. In addition, a continuance would
only serve to further delay the trial of this case, which has been pending for nearly
two and a half years.
Based on the totality of the circumstances and the record, and because the
Amended Complaint set forth no proper claim for negligence per se, the Court finds
that Plaintiffs should not be permitted to pursue a negligence per se theory of
liability at trial.
III.

CONCLUSION

To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result. After
review of Plaintiffs’ Motions [238] [261], Defendants’ Responses, the record and
relevant legal authority, the Court finds that Plaintiffs failed to adequately plead a
claim for negligence per se, and further have failed to sustain their burden of proof
under the summary judgment standard that Defendants were negligent per se.

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Plaintiffs’ Motions will be denied, and they will not be permitted to pursue a
negligence per se theory of liability at trial.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiffs’
Motions for Partial Summary Judgment on the Issue of Due Care against
Defendant Drying Facilities (sic) Asset Holdings, LLC [238], and Defendant
Linfield, Hunter & Junis, Inc. [261] are DENIED, and Plaintiffs will be prohibited
from pursuing a negligence per se claim at trial.
SO ORDERED AND ADJUDGED, this the 7th day of July, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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