Nolen Scott Ely, et al v. Cabot Oil & Gas Corporation and Gassearch Drilling Services Corproation

Filing 567

ORDER ADOPTING adopting 510 Report and Recommendations by granting in part and denying in part 390 Motion for Summary Judgment to the following extent: Defendants Motion for Summary Judgment on Ely Familys claims (Doc. 390) is GRANTED as follo ws: a. Summary judgment is granted in favor of Defendant Gas Search Drilling Services (GDS) on all claims and the Clerk shallTERMINATE GDS as a Defendant to this action. b. Summary judgment is granted in favor of Defendant Cabot Oil & Gas Corporation with regards to the Ely Familys claim for breach of contract, as well as any claim for lost royalties. c. Summary judgment is granted in favor of Defendant Cabot Oil & Gas Corporation with regards to the Ely Familys claim for fraudulent inducement. d. Summary judgment is granted in favor of Defendant Cabot Oil & Gas Corporation with regards to the Ely Familys claim for negligence per se. e. Summary judgment is granted in favor of Defendant Cabot Oil & Gas Corporation with regards to the Ely Fam ilys claim for medical monitoring and alleged violations of a variety of Pennsylvania environmental law. f. Summary judgment is granted in favor of Defendant Cabot Oil & Gas Corporation with regards to the Ely Familys claim for personal injuries. g. Summary judgment is granted in favor of Defendant Cabot Oil & Gas Corporation with regards to the Minor Elys claims of negligence. 3. Summary judgment is DENIED with respect to the Ely Familys private nuisance claim and Nolen and Monica Elys negligence claim. Signed by Honorable John E. Jones, III on 1/12/15. (pw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NOLEN SCOTT ELY, et al.,
Plaintiffs,
v.
CABOT OIL & GAS
CORPORATION, et al.,
Defendants.

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3:09-cv-2284

Hon. John E. Jones III
Hon. Martin C. Carlson

ORDER
January 12, 2015
AND NOW, upon consideration of the Report and Recommendation of
Chief United States Magistrate Judge Martin C. Carlson (Doc. 510),
recommending that the Defendants’ Motion for Summary Judgment on the Hubert
Ely Family’s claims (Doc. 390) be granted with respect to all claims save for the
Ely Family’s claims for negligence and private nuisance, and, after an independent
review of the record, and noting that both parties filed objections1 (Docs. 522, 523,
1

Where objections to a magistrate judge’s report and recommendation are filed, the court
must perform a de novo review of the contested portions of the report. Supinksi v. United Parcel
Serv., Civ. A. No. 06-0793, 2009 WL 113796, at *3 (M.D. Pa. Jan. 16, 2009) (citing Sample v.
Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)). “In this regard, Local
Rule of Court 72.3 requires ‘written objections which . . . specifically identify the portions of the
proposed findings, recommendations or report to which objection is made and the basis for those
objections.’” Id. (citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL 4186951, at *6 (M.D.
Pa. Sept. 8, 2008).
1

528, 529, 531) to the report, and the Court finding Judge Carlson’s analysis to be
extremely thorough, well-reasoned, and fully supported by the record, and the
Court further finding the Plaintiff’s objections to be without merit and squarely
addressed by the Magistrate Judge within his report2, but that several of the
Defendants’ objections shall be sustained to the extent reflected hereinbelow, IT
IS HEREBY ORDERED THAT:
1.

The Report and Recommendation of Magistrate Judge Carlson (Doc.
510) is ADOPTED to the following extent:

2.

Defendants’ Motion for Summary Judgment on Ely Family’s claims
(Doc. 390) is GRANTED as follows:
a.

Summary judgment is granted in favor of Defendant GasSearch
Drilling Services (GDS) on all claims and the Clerk shall
TERMINATE GDS as a Defendant to this action.

2

The arguments raised by the Ely Family within the objections do nothing to alter our
determination that the Magistrate Judge has thoroughly and correctly determined that the Ely
Family’s breach of contract or fraud claims fail for a lack of proof. Further, their Hazardous
Substance Cleanup Act (“HSCA”) claim fails as a matter of law, inasmuch as there is no
evidence of an actual or threatened release of a hazardous substance on the Ely’s property, nor
have the Elys incurred any response or cleanup costs. Finally, we agree with the Magistrate
Judge that both as a matter of law, and because sufficient factual issues remain, that certain
claims of negligence and private nuisance shall be permitted to go forward.
2

b.

Summary judgment is granted in favor of Defendant Cabot Oil
& Gas Corporation with regards to the Ely Family’s claim for
breach of contract, as well as any claim for lost royalties.3

c.

Summary judgment is granted in favor of Defendant Cabot Oil
& Gas Corporation with regards to the Ely Family’s claim for
fraudulent inducement.

d.

Summary judgment is granted in favor of Defendant Cabot Oil
& Gas Corporation with regards to the Ely Family’s claim for
negligence per se.

e.

Summary judgment is granted in favor of Defendant Cabot Oil
& Gas Corporation with regards to the Ely Family’s claim for
medical monitoring and alleged violations of a variety of
Pennsylvania environmental law.

3

To the extent the Defendants’ objections sought to have the Court clarify that lost
royalties were not recoverable by Nolen Ely on any surviving claims, we note that any lost
royalty claim would flow from a breach of contract, a claim which no longer survives now that
we have now granted summary judgment in favor of Cabot on the said claim.
3

f.

Summary judgment is granted in favor of Defendant Cabot Oil
& Gas Corporation with regards to the Ely Family’s claim for
personal injuries.4

g.

Summary judgment is granted in favor of Defendant Cabot Oil
& Gas Corporation with regards to the Minor Ely’s claims of
negligence.5

3.

Summary judgment is DENIED with respect to the Ely Family’s
private nuisance claim and Nolen and Monica Ely’s negligence claim.

s/ John E. Jones III
John E. Jones III
United States District Judge

4

To the extent that Defendants’ objections sought to have the Court clarify that the
remaining negligence claims pertained to the Ely’s claims for property damage only, we shall
sustain that objection, noting that no cognizable evidence of personal injury has been submitted
to the Court, thus any potential recovery on a negligence claim shall be based on property
damages or injury, not personal injury.
5

We agree with the Defendants that since the minor Ely children have no property
interest in the land at issue, and since we have barred any recovery for personal injury due to lack
of evidence, that summary judgment is warranted in favor of Cabot on the negligence claim with
regard to the minor children. As admitted by the Defendant, the minor children do have standing
to pursue claims of private nuisance under Pennsylvania law because they are family members
domiciled at the subject property. While the Defendants contend that summary judgment is
warranted on this claim as well with respect to the minor children because the diminution in
value of the property and the inconvenience and cost of obtaining potable water from outside
sources was not experienced by the minors, we shall decline to grant summary judgment on the
minor’s claim in the interest of all caution. It is for the factfinder to determine if the minors
suffered damages as a result of the alleged nuisance.
4