Lester et al v. C&J Well Services, Inc et al

Filing 112

MEMORANDUM OPINION AND ORDER GRANTING NOBLE ENERGY INC.'S 58 MOTION FOR SUMMARY JUDGMENT, AND DENYING AS MOOT PENDING MOTIONS IN LIMINE. The Clerk is DIRECTED to enter judgment on this matter as to Noble. Signed by Senior Judge Frederick P. Stamp, Jr. on 5/10/18. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TIMOTHY LESTER and ROBIN LESTER,
husband and wife,
Plaintiffs,
v.

Civil Action No. 5:17CV46
(STAMP)

C&J WELL SERVICES, INC.,
a corporation,
NOBLE ENERGY, INC.,
a corporation,
CONSOL ENERGY, INC.,
a corporation and
CNX GAS COMPANY, LLC,
a limited liability company,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING NOBLE ENERGY INC.’S MOTION FOR SUMMARY JUDGMENT,
AND DENYING AS MOOT PENDING MOTIONS IN LIMINE
I.

Background

This civil action was removed from the Circuit Court of
Marshall County, West Virginia.

The case arises out of injuries

that plaintiff Timothy Lester (“Mr. Lester”) allegedly received
while operating his employer’s water truck on County Route 26 (“CR
26”) in Marshall County.

Mr. Lester’s employer was C&J Well

Services, Inc. (“C&J”), a defendant in this civil action.

Mr.

Lester was driving the truck to deliver water to a gas well pad
owned and operated by a joint venture consisting of defendants
Noble Energy, Inc. (“Noble”), CONSOL Energy, Inc. (“CONSOL”), and
CNX Gas Company, LLC (“CNX”) and, collectively with Noble and
CONSOL, the “joint venturers.”

C&J contracted with the joint

venturers

to

provide

them

with

oil

and

gas

field

services,

including the transportation, delivery, and removal of equipment
and materials to and from the sites of the gas well pads operated
by the joint venturers.

There are two counts asserted in the

complaint: Count I is a deliberate indifference claim against C&J,
and Count II is a negligence claim against the joint venturers.
Each count includes a claim for loss of consortium as to Mr.
Lester’s wife and co-plaintiff, Robin Lester.

All proceedings

against C&J have been stayed pending an order regarding exemption
from the United States Bankruptcy Court for the Southern District
of Texas.

ECF No. 55.

All claims against defendants CONSOL and

CNX have been dismissed with prejudice by an agreed dismissal order
with the plaintiffs. CONSOL and CNX had filed a motion for summary
judgment, but that motion has been denied as moot pursuant to the
dismissal order.

Thus, the case is currently proceeding against

only defendant Noble.
The complaint states that Mr. Lester was driving uphill on CR
26 at the same time two other drivers were operating tanker trucks
hauling fluids to the joint venturers’ well pads.

The plaintiffs

allege that Mr. Lester moved his truck as far to the right as
possible to avoid oncoming traffic but was run off the road by the
two tanker trucks coming from the joint venturers’ well pads in the
opposite direction.

The complaint states that the roadway and

shoulder of CR 26 collapsed, which caused Mr. Lester’s truck to

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roll over the guardrail and down a steep embankment, where the
truck struck a tree.
The complaint also states that the joint venturers’ traffic
plan for CR 26 required drivers driving uphill to call ahead over
their radios and drivers driving downhill to respond by yielding to
the uphill drivers.

The complaint alleges, however, that the two

downhill drivers did not yield to Mr. Lester when Mr. Lester
indicated over his radio that he was driving uphill towards the
well pad. The plaintiffs allege that the downhill drivers’ failure
to yield to him is what caused him to run off the road.
The plaintiffs then allege that Mr. Lester sustained severe
and permanent injuries as a result of the accident. The plaintiffs
further

allege

that

the

joint

venturers’

traffic

plan

was

dangerously deficient because it did not properly regulate the flow
of heavy trucks on CR 26. Additionally, the plaintiffs allege that
the joint venturers were negligent in the maintenance and repair of
CR 26, which allowed the roadway and shoulder to become undercut,
soft, and subject to collapse.
Noble filed a motion to dismiss the complaint, which this
Court granted in part and denied in part.

Noble is named in Count

II of the complaint, which alleged that the joint venturers were
negligent both in the maintenance and repair of CR 26 and in the
formulation and implementation of a traffic control plan for CR 26.
The plaintiffs based these allegations on two separate duties of

3

care.

First, Count II alleged that the joint venturers had a duty

to maintain and control CR 26 by virtue of the permits issued to
them by the West Virginia Department of Transportation, Division of
Highways (the “WVDOH”).

Second, Count II alleged that the joint

venturers had a duty under West Virginia law to provide Mr. Lester,
an invitee, with a reasonably safe workspace.

This Court granted

the motion to dismiss as to any alleged duty of care owed by Noble
to Mr. Lester as to CR 26 by virtue of permits to occupy the
premises.

This Court denied the motion to dismiss as to any

alleged duty of care owed by Noble as to Mr. Lester by virtue of
their independent contractor relationship.
Noble has now filed a motion for summary judgment, which is
fully briefed and ripe for review.1

For the following reasons,

this Court grants Noble’s motion for summary judgment.
II.

Applicable Law

Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or

1

On May 7, 2018, the parties filed a stipulation of facts (ECF
No. 110) pursuant to the scheduling order for this civil action.
While many of the facts set forth in the stipulation are also set
forth in the briefing for the motion for summary judgment, the
Court has not considered the stipulation for the purposes of ruling
on the motion for summary judgment because the stipulation is not
a part of the briefing on the motion.
4

(B) 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.
Fed. R. Civ. P. 56(c).

The party seeking summary judgment bears

the initial burden of showing the absence of any genuine issues of
material fact.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

“The burden then shifts to the nonmoving party to come

forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”
256.

“The

inquiry

performed

is

the

Anderson, 477 U.S. at
threshold

inquiry

of

determining whether there is the need for a trial—whether, in other
words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved

in

favor

of

either

party.”

Id.

at

250;

see

also

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)
(“Summary judgment ‘should be granted only in those cases where it
is perfectly clear that no issue of fact is involved and inquiry
into the facts is not desirable to clarify the application of the
5

law.’” (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394
(4th Cir. 1950))).
In Celotex, the Supreme Court stated that “the plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322.

In reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
III.
A.

Discussion

Noble’s Motion for Summary Judgment
Pursuant to this Court’s order granting in part and denying in

part Noble’s motion to dismiss, the only remaining issue involving
Noble is whether Noble could have owed Mr. Lester a narrow duty
based upon his status as an independent contractor of Noble.

In

that order, this Court stated that whether Noble’s duty as a
premises owner extended to the site of the accident on CR 26 was an
issue to be developed in discovery. Now, in its motion for summary
judgment, Noble argues that it is undisputed that Mr. Lester’s
accident did not occur anywhere near Noble’s premises.

Noble

states that the accident occurred at least one and a half miles

6

away from the access road off of CR 26 leading to Noble’s property.
Thus, Noble concludes that any duty it owed as a premises owner did
not extend to the site on CR 26 where Mr. Lester’s accident
occurred.
The plaintiffs filed a response in opposition to Noble’s
motion for summary judgment, in which they argue that the motion
should be denied as premature because it was filed nearly four
months prior to the completion date for discovery.

The plaintiffs

attach to their response an affidavit from plaintiffs’ counsel,
William

L.

Frame

(“Mr.

discovery is required.

Frame”),

explaining

that

additional

The plaintiffs indicate that they have not

had an adequate opportunity to conduct meaningful discovery in this
matter and that, to date, no depositions have been conducted.

The

plaintiffs conclude that Noble’s “motion for summary judgment is
really a request for reconsideration of the denial, in part, of its
motion to dismiss.”

ECF No. 64 at 4.

On the merits of the motion,

the plaintiffs respond that the pleadings, the limited discovery
conducted

thus

far,

affidavits,

and

other

matters

of

record

demonstrate that there are genuine disputes as to material facts.
The

plaintiffs

also

argue

that,

regardless

of

whether

Noble

technically had “control” over CR 26, Noble still had a duty to use
care to protect users of the road from foreseeable dangers caused
by its operations along CR 26.

The plaintiffs contend that there

7

can

be

little

doubt

that

Noble

anticipated

or

should

have

anticipated the danger resulting in the harm to Mr. Lester.
Noble filed a reply to the plaintiffs’ response in opposition.
In reply to the plaintiffs’ contention that Noble’s motion for
summary judgment is premature, Noble argues that “the location of
the accident on CR 26 relative to the location of Noble’s property
along CR 26 is what it is.
change those facts.”

No additional discovery is going to

ECF No. 67 at 3.

Noble also contends that

Rule 56(b) expressly states that summary judgment motions can be
filed “at any time.”

Noble further contends that the plaintiffs’

response to its motion for summary judgment identifies no facts or
law

supporting

a

claim

of

premises

liability,

and

that

the

plaintiffs’ counsel’s Rule 56(d) affidavit does not identify any
evidence that would create a genuine issue of material fact.
Lastly, Noble contends that this case does not involve a “traffic
control plan” or any duty of care arising out of affirmative
conduct.
This Court finds that the motion for summary must be granted
because the duty owed by Noble as a premises owner did not extend
to the site on CR 26 where Mr. Lester’s accident occurred.

A

premises owner does have a duty to provide an invitee, including an
independent contractor, “a reasonably safe place in which to work”
as well as a duty “to exercise ordinary care for the safety of
person working there.”

Taylor v. Sears, Roebuck and Co., 437

8

S.E.2d 733, 736 (W. Va. 1993). However, West Virginia law is clear
that no such duty of care exists as to property outside of the
defendant’s premises. See Conley v. Stollings, 679 S.E.2d 594, 598
(W. Va. 2009) (“[A] defendant [generally] cannot be held liable for
a defective or dangerous condition of property which it does not
own,

possess,

or

control[.]”

(quoting

Andrick

v.

Town

of

Buckhannon, 421 S.E.2d 247, 251 (W. Va. 1992) (quoting Southland
Corp. v. Superior Court, 203 Cal. App. 3d 656, 664 (1988)))).
In a case similar to the present one, patrons of a bank
brought a personal injury action against the bank after they got
into a car accident just after exiting the bank’s parking lot.
Malone v. WesBanco Bank, Inc., No. 14-1114, 2015 WL 5513776 (W. Va.
Sept. 18, 2015).

The bank patrons alleged that the bank owed a

duty of care as to the public road abutting the bank’s parking lot,
but the Supreme Court of Appeals of West Virginia affirmed the
circuit court’s dismissal of the civil action against the bank.
See id. at *3 (finding that the case should be dismissed despite
the “petitioners’ allegations that the parking lot lacked signage
or security personnel, and that respondent was on notice of
increased traffic due to an annual baseball tournament in the
area”).

The court held that “the law imposes no duty on a business

owner for the traffic violation of a third-party occurring off of
its property, and petitioners have presented no legal authority
otherwise.”

Id.

9

The Supreme Court of Appeals of West Virginia reached the same
conclusion in Barb v. Shepard University Board of Governors, No.
14-1115, 2016 WL 143302 (W. Va. Jan. 8, 2016), and Louk v. Isuzu
Motors, Inc., 479 S.E.2d 911 (W. Va. 1996).

In Barb, the court

found that a university owed no duty of care to a student who was
struck by a motor vehicle while crossing a crosswalk on a public
roadway bisecting the east and west campuses of the university.
See 2016 WL 143302, at *4 (finding that the university owed no duty
of care as to the crosswalk where “there is no dispute in the
record that the property where the accident occurred was owned by
the State of West Virginia,” and where the WVDOH maintained the
road and controlled the crosswalk). In Louk, the court found that,
for the purpose of a Walmart store’s tort liability as a premises
owner, Walmart’s premises included its private access road but did
not extend to the public road connected to the private access road.
See 479 S.E.2d at 926 n.13 (“The collision at issue here occurred
on Route 219/250 and not on those premises.”).

Thus, this Court

must grant Noble’s motion for summary judgment on the basis of the
relevant West Virginia case law. The site of Mr. Lester’s accident
on CR 26, a public road, was over one mile from the entrance to
Noble’s property and, thus, cannot be considered part of Noble’s
property for the purposes of premises liability.
This Court also finds that the motion for summary judgment
must be granted because the plaintiff has not provided sufficient

10

evidence in Mr. Frame’s affidavit to show that additional discovery
is merited under Federal Rule of Civil Procedure 56(d). Rule 56(d)
provides:
(d) When Facts Are Unavailable to the Nonmovant.
If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present
facts essential to justify its opposition, the
court may:
(1)
it;

defer considering the motion or deny

(2) allow time to obtain affidavits or
declarations or to take discovery; or
(3)

issue any other appropriate order.

Fed. R. Civ. P. 56(d).2
“If a party believes that more discovery is necessary for it
to demonstrate a genuine issue of material fact, the proper course
is to file a Rule 56(f) affidavit stating ‘that it could not
properly oppose a motion for summary judgment without a chance to
conduct discovery.’”
302

F.3d

214,

244

Harrods Ltd. v. Sixty Internet Domain Names,
(4th

Cir.

2002)

(quoting

Evans

v.

Techs.

Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)).

“The

purpose of the affidavit is to ensure that the nonmoving party is
invoking the protections of Rule 56(f) in good faith and to afford
the trial court the showing necessary to assess the merit of a

2

“The language of Rule 56(d) appeared in Rule 56(f) before
amendments in 2010, but these amendments made no substantial change
to the rule.” McCray v. Md. Dep’t of Transp., Md. Transit Admin.,
741 F.3d 480, 484 n.2 (4th Cir. 2014).
11

party’s opposition.”

Id. (citing First Chicago Int’l v. United

Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988)).

“The denial of

a Rule 56(f) motion for extension should be affirmed where the
additional evidence sought for discovery would not have by itself
created a genuine issue of material fact sufficient to defeat
summary judgment.”

Strag v. Bd. of Trustees, Craven Cmty. Coll.,

55 F.3d 943, 954 (4th Cir. 1995).
“[T]o gain the benefit of Rule 56(d), the party opposing
summary judgment must make a sufficient proffer: ‘the proffer
should be authoritative, it should be advanced in a timely manner,
and it should explain why the party is unable currently to adduce
the facts essential to opposing summary judgment.’”

In re PHC,

Inc. S’holder Litig., 762 F.3d 138, 143 (1st Cir. 2014) (quoting
Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198,
1203

(1st

Cir.

1994)).

The

third

requirement,

the

party’s

explanation, “should (i) ‘show good cause for the failure to have
discovered the facts sooner’; (ii) ‘set forth a plausible basis for
believing that specific facts . . . probably exist’; and (iii)
‘indicate how the emergent facts . . . will influence the outcome
of the pending summary judgment motion.’”

Id.

“Thus, in a case

involving incomplete discovery, the Rule 56(d) proffer requirements
can be categorized as: ‘authoritativeness, timeliness, good cause,
utility, and materiality.’”

Id.

12

Here,

the

plaintiffs

properly

filed

an

affidavit

required by Rule 56(d) when requesting more discovery.

as

is

The Rule

56(d) proffer was authoritative because it included an affidavit,
and it was timely because it was filed before the close of
discovery in this civil action.

The affidavit also shows good

cause for why no depositions had been taken at the time it was
filed.

ECF No. 64-2 at 1 (“Counsel has attempted to obtain

mutually convenient dates for the taking of depositions of key
witnesses with knowledge of the facts and circumstances existing at
the time [of] Plaintiff’s rollover incident and injuries.”).

It

may also be true that the utility requirement is satisfied because
further discovery might show that the Noble’s “established policies
and

procedures

environment.”

were

deficient

and

created

an

unsafe

work

ECF No. 64-2 at 2.

However, this Court finds that the plaintiffs’ Rule 56(d)
proffer

does

not

satisfy

the

materiality

requirement.

affidavit states in relevant part as follows:
6.
Your Affiant verily believes that discovery
will show that Defendants’ well pads were cited in rural
locations with existing local infrastructure wholly
inadequate for the rapid development, construction, and
operation of marcellus shale gas wells; that existing
local infrastructure was inadequate for the expected
massive increase in heavy truck traffic; that Defendants
knew or should have known that the rural roads, including
CR26, were not designed for and were incapable of safely
handling the increased demand and stress placed upon
them; that the Defendants knew or should have known that
their gas well operations and the vastly increased amount
of heavy truck traffic constituted an impediment to their
operations and created a hazardous condition for its
13

The

invitees, including nonemployee workers, specifically
truck drivers, and created a hazardous condition for the
general public; that Defendants perceiving the hazardous
situation created on rural roadways by their gas well
operations, established policies and procedures to be
followed by contractors and their employees for the
transportation of heavy equipment and materials to and
from the gas well pads; that the failure of contractors
or their employees to abide by such policies and
procedures could be a basis for suspending and/or
terminating the contracts of service providers; and that
the established policies and procedures were deficient
and created an unsafe work environment.
7.
Your Affiant verily believes that discovery
will show that the policies and procedures put in place
by Defendants were dangerously deficient and created an
increased risk of serious personal injury to contractors,
truck drivers, and others, including the general public.
ECF No. 64-2 at 2.

Even if the plaintiffs were able to show

through further discovery that Noble’s policies and procedures were
deficient and created an unsafe work environment, this Court would
still have to grant Noble’s motion for summary judgment.

In its

prior memorandum opinion and order on Noble’s motion to dismiss,
this Court left open only one issue to be developed in discovery:
whether Noble’s duty as a premises owner extended to the site of
the accident on CR 26.

The proffers in the affidavit are material

to the motion for summary judgment only if Noble owed Mr. Lester a
duty of care.

The proffers are immaterial if Noble owed no duty of

care to Mr. Lester because the accident occurred off of its
premises.
The plaintiffs do not dispute in their response to Noble’s
motion for summary judgment or in their affidavit that the location

14

of Mr. Lester’s accident on CR 26 was over one mile from the
entrance to Noble’s property off of CR 26.

Thus, the sole

remaining issue of whether Noble’s duty as a premises owner
extended to the site of the accident on CR 26 is disposed of by the
location of the accident and West Virginia law holding that a
defendant’s duty of care does not extend to such a location.

As is

discussed above, West Virginia law is clear that Noble’s duty of
care to independent contractors, as a premises owner, did not
extend to any point of CR 26, which is a public road and not part
of Noble’s premises.
In summary, this Court finds that the circumstances presented
to this Court do not warrant an extension of discovery, and that
Noble’s motion for summary judgment must be granted based on the
West Virginia case law on premises liability.
B.

Noble’s Motions in Limine
Following Noble’s motion for summary judgment, Noble filed

several motions in limine.

ECF Nos. 94, 96, 97, 98, and 99.

Because this Court grants Noble’s motion for summary judgment, the
motions in limine are moot at this stage. Accordingly, the pending
motions in limine are denied as moot.
IV.

Conclusion

For the reasons set forth above, Noble Energy, Inc.’s motion
for summary judgment (ECF No. 58) is GRANTED.

Accordingly, the

pending motions in limine (ECF Nos. 94, 96, 97, 98, and 99) are

15

hereby DENIED AS MOOT.

The civil action continues to be stayed as

to defendant C&J Well Services, Inc.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter as to Noble.
DATED:

May 10, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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