Dupus v. Breckinridge Wind Project LLC et al

Filing 26

ORDER granting 20 Defendants' Motion to Dismiss. Signed by Honorable Robin J. Cauthron on 10/26/17. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CELIA J. DUPUS,
Plaintiff,
v.
BRECKENRIDGE WIND PROJECT,
LLC, a Delaware limited liability
company, and NEXTERA ENERGY
RESOURCES, LLC, a Delaware limited
liability company,
Defendants.

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Case No. CIV-17-853-C

MEMORANDUM OPINION AND ORDER
Plaintiff filed a Petition in the District Court of Garfield County, Oklahoma, alleging
counts of negligence, trespass, and nuisance. Defendants removed the case to this Court
on August 10, 2017. Now before the Court is Defendants’ Motion to Dismiss (Dkt. No.
20). Plaintiff has responded and the Motion is now at issue.
The standard for consideration of motions to dismiss brought pursuant to
Fed. R. Civ. P. 12(b)(6) is set forth in the Supreme Court’s decision in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), and the subsequent decision in Ashcroft v. Iqbal, 556 U.S.
662 (2009). In those cases, the Supreme Court made clear that to survive a motion to
dismiss, a complaint or counterclaim must contain enough allegations of fact which, when
taken as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. Claimants must “nudge[] their claims across the line from conceivable to plausible”
to survive a motion to dismiss. Id. When considering a motion to dismiss, courts looks to

the complaint and those documents attached or referred to in the complaint, accept as true
all allegations contained in the complaint, and draw all reasonable inferences from the
pleading in favor of the pleader. Pace v. Swidlow, 519 F.3d 1067, 1072 (10th Cir. 2008).
Thus, the starting point in resolving Defendants’ Motion is to examine the factual
allegations supporting each claim Defendants wish the Court to dismiss.
This case arises from the relationship between the parties that began as a Collection
Easement and Option * where Breckenridge Wind Project, LLC, and Celia Dupus entered
into an agreement allowing Breckenridge and its agents to install electric transmission lines
for a wind farm over Dupus’s property. The Petition alleges two tracts as Dupus’s property
that suffered damage and Breckenridge had permission to enter only Tract 1.
The Petition did not include a statement that Plaintiff could not have discovered the
alleged harms with reasonable diligence prior to June 2015. Without such a statement, all
three claims are untimely. See Marshall v. Fenton, Fenton, Smith, Reneau & Moon, P.C.,
1995 OK 66, ¶ 6, 899 P.2d 621, 623 (limitations period begins to run from the date plaintiff
should have discovered the harm and damage had occurred). Assuming Plaintiff can
amend the flaw, then the following corrections must be made for the claims to survive.
Plaintiff must specify which Defendant allegedly caused harm for each claim, state
Defendant Nextera Energy’s connection to the land, the damage, and/or the Collection
Easement and Option, and identify what harm actually occurred for each claim. The

*

Referenced in the Petition as “Defendants had authority to enter Tract 1 pursuant to the
Collection Easement and Option granted by Plaintiff.” (Pet., Dkt. No. 1-1, p. 2.) If Plaintiff files
an Amended Petition, the Collection Easement and Option should be attached.
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nuisance claim must state whether the claim is brought pursuant to Oklahoma common law
or statute and specify how both Defendants possessed the neighboring property. The
negligence claim must specify what duty both Defendants owed to Plaintiff and how the
Defendants allegedly breached the duty. As it stands, the Petition may state a general
trespass claim against some defendant, but it is not specific enough for the named
Defendants to answer.
CONCLUSION
For the reasons stated, Defendants’ Motion to Dismiss (Dkt. No. 20) is GRANTED.
The Petition is dismissed without prejudice, and Plaintiff may file an Amended Petition
that cures the deficiencies described herein within fourteen (14) days of the date of this
Order.
IT IS SO ORDERED this 26th day of October, 2017.

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