Powers et al v. Consolidation Coal Company

Filing 16

OPINION AND ORDER denying 9 Motion to Dismiss for Failure to State a Claim. Signed by Judge James P. Jones on 1/3/2013. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
ROBERT S. POWERS, ET AL.,
Plaintiffs,
v.
CONSOLIDATION COAL COMPANY,
Defendant.

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Case No. 1:12CV00039
OPINION AND ORDER
By: James P. Jones
United States District Judge

Benjamin A. Street and Jason D. Gallagher, Street Law Firm, LLP, Grundy,
Virginia, for Plaintiffs; James R. Creekmore, Keith Finch, and Blair N.C. Wood,
The Creekmore Law Firm PC, Blacksburg, Virginia, and Jonathan T. Blank and
Lisa Lorish, McGuire Woods LLP, Charlottesville, Virginia, for Defendant.
In this diversity civil action the plaintiffs seek damages and injunctive relief
against a coal company for placing contaminated water in an inactive mine located
on real property in which the plaintiffs claim to be owners of other coal reserves
and gas, including coal bed methane.
The defendant, Consolidation Coal Company (“Consolidation”), has filed a
Motion to Dismiss Plaintiffs’ Complaint Pursuant to Federal Rules of Civil
Procedure 12(b)(6), 12(b)(7) or, Alternatively, for a More Definite Statement

Pursuant to Rule 12(e), which motion has been fully briefed. For the reasons that
follow, the motion will be denied. 1
As to the defendant’s Rule 12(b)(6) argument, it depends in part upon my
decision in Oryn Treadway Sheffield, Jr., Trust v. Consolidation Coal Co., 819 F.
Supp. 2d 625 (W.D. Va. 2011), aff’d, No. 11-2277, 2012 WL 5871628 (4th Cir.
Nov. 21, 2012) (unpublished). But in that case the plaintiffs alleged no injury in
fact beyond speculation. 819 F. Supp. 2d at 630. For example, they did not
plausibly allege that the defendant’s inundation of the third-party’s mine with
contaminated water “affected their ability to commercially exploit any [other
minerals].” Id. at 630-31. In contrast, the plaintiffs here allege, as one example,
that “[a]s to [their] coal bed methane, some portion of the methane has dissolved in
the Contaminants Consolidation pumped into and around the Subject Properties
thereby making removal of the Contaminants impossible without a significant
permanent loss of Plaintiffs’ methane.” (Compl. ¶ 25.) The allegations of the
Complaint in this case are sufficient to show their standing to assert their claims.
Moreover, I find that the plaintiffs have adequately set forth the nature and
extent of their ownership interests, at least for pleading purposes.

1

I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
significantly aid the decisional process.
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I have considered the other grounds of the defendant’s Rule 12(b)(6) and
likewise found them to be without merit, at least at this stage of the litigation. It
may very well be that all or some of the plaintiffs’ causes of action will be
insufficient as a matter of proof.

But at this point, I cannot make that

determination, even in light of the heightened pleading requirements imposed by
Twombly and Iqbal.2
The defendant also asserts under Rule 12(b)(7) that the plaintiffs have failed
to add a necessary party, namely Mary Catherine Kouse, who has filed a similar
suit against the defendant in state court, alleging damages to her mineral interests
from the same source. Consolidation contends that “[i]t therefore appears that
there is some overlap of property interests at stake in each of these separate
actions” (Def.’s Reply 8) and thus Kouse is a necessary and indispensable party in
this case.
The facts of record are currently inadequate for me to determine whether
there are other parties whose joinder is necessary under Federal Rule of Civil
Procedure 19(a) and who are indispensable under Rule 19(b). Dismissal of a case
on this ground is “a drastic remedy . . . which should be employed only sparingly.”

2

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662

(2009).

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Teamsters Local Union No. 171 v. Keal Driveaway Co., 173 F.3d 915, 918 (4th
Cir. 1999).

The court is required to “examine the facts of the particular

controversy” before such a determination can be made. Id. Moreover, the burden
is on the party claiming nonjoinder to demonstrate that a missing party is necessary
and indispensable. Am. Gen. Life & Accident Ins. Co. v. Wood, 429 F.3d 83, 92
(4th Cir. 2005).
I will deny this ground of the Motion to Dismiss without prejudice to further
examination by the court upon motion once the facts of the case are more fully
developed.
Finally, I will deny defendant’s alternative request under Federal Rule of
Civil Procedure 12(e) for a more definite statement of the facts of the Complaint.
In particular, the defendant wishes the plaintiffs to set forth the dates of placement
of the water in the mine and the dates upon which they discovered this placement,
in order to facilitate a determination of whether the claims are time barred. (Def.’s
Mem. 18.) As noted above, I find that the Complaint sufficiently sets forth valid
causes of action. The statute of limitations is an affirmative defense and a plaintiff
is not required to plead its avoidance. See Gabauer v. Woodcock, 594 F.2d 662,
665 (8th Cir. 1979). I find that the allegations of the Complaint enable the
defendant to reasonably prepare a response. See Fed. R. Civ. P. 12(e).

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Accordingly, it is ORDERED that the defendant’s motion (ECF No. 9) is
DENIED.

ENTER: January 3, 2013
/s/ James P. Jones
United States District Judge

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