Hagy et al v. Equitable Production Co. et al

Filing 30

MEMORANDUM OPINION AND ORDER granting in part and denying in part defendant Halliburton Energy Services, Inc.'s 11 MOTION for Partial Dismissal of the Plaintiff's Complaint, and as directed and set forth more fully herein; denying plaintiffs' 19 MOTION for Leave to File a Response; and denying as moot Halliburton's 18 MOTION to Strike Plaintiffs' 17 Response. Signed by Judge Joseph R. Goodwin on 4/28/2011. (cc: attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

DENNIS HAGY, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:10-cv-01372

EQUITABLE PRODUCTION CO., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is the Motion for Partial Dismissal of the Plaintiffs’ Complaint
[Docket 11] filed by the defendant, Halliburton Energy Services, Inc. (“Halliburton”). For the
reasons provided below, this motion is GRANTED in part and DENIED in part.
I.

Background
This suit involves the plaintiffs’ allegations that the defendants contaminated their home

water supply by drilling four natural gas wells near the plaintiffs’ property in Jackson County, West
Virginia. The plaintiffs allege that these gas wells were owned by the defendant, Equitable
Production Company (“Equitable”) and operated by Equitable as well as three other defendants,
including Halliburton, which operated one of the wells at issue. The plaintiffs allege that they
notified Equitable of a strange odor and smell in their water in October 2008. On November 13,
2008, “an agent” of [Equitable] informed the Plaintiff to stop drinking the water from his well.”
(Compl. ¶ 16.) The plaintiffs further allege that they have been exposed to hazardous chemicals and
suffered illness as a result of the defendants’ conduct.

On October 26, 2010, the plaintiffs filed suit in the Circuit Court of Jackson County, West
Virginia, naming Equitable, Warren Drilling Company, BJ Services Company, USA, and Halliburton
as defendants. The Complaint alleges five causes of action: (1) negligence, (2) private nuisance, (3)
strict liability, (4) trespass, and (5) medical monitoring. On December 10, 2010, the defendant
Warren removed the case to this court on the grounds of complete diversity of citizenship between
the parties under 28 U.S.C. § 1332. The defendant Halliburton then filed the instant Motion for
Partial Dismissal of the Plaintiffs’ Complaint, which is now ripe for review.1
II.

Motion to Dismiss Standard
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or

pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil
Procedure 8 requires that a pleading contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8. As the Supreme Court recently reiterated in
Ashcroft v. Iqbal, that standard “does not require ‘detailed factual allegations’ but ‘it demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.’” __ U.S. __, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) for the proposition that “on a
1

More than one month after Halliburton moved for a partial dismissal of the Complaint, the
plaintiffs filed an untimely Response to Halliburton’s Motion for Partial Dismissal [Docket 17],
accompanied by a Motion for Leave to File Response to Halliburton’s Motion for Partial Dismissal
[Docket 19]. Because my opinion today relies solely on the plaintiffs’ Complaint, I need not
consider any arguments raised by the plaintiffs’ untimely response. Accordingly, the plaintiffs’
Motion for Leave to File a Response [Docket 19] is DENIED. Halliburton’s Motion to Strike
Plaintiffs’ Response [Docket 18] is DENIED as moot.
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motion to dismiss, courts ‘are not bound to accept as true a legal conclusion couched as a factual
allegation’”). A court cannot accept as true legal conclusions in a complaint that merely recite the
elements of a cause of action supported by conclusory statements. Iqbal, 129 S. Ct. at 1949-50. “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Id. at 1949 (quoting Twombly, 550 U.S. at 570).
To achieve facial plausibility, the plaintiff must plead facts that allow the court to draw the
reasonable inference that the defendant is liable, and those facts must be more than merely consistent
with the defendant’s liability to raise the claim from merely possible to probable. Id. In determining
whether a plausible claim exists, the court must undertake a context-specific inquiry, “[b]ut where
the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at
1950 (quoting Fed. R. Civ. P. 8(a)(2)). A complaint must contain enough facts to “nudge[] [a] claim
cross the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
III.

Analysis
Before addressing Halliburton’s claim-specific arguments, I turn first to Halliburton’s general

argument that the plaintiffs’ Complaint should be dismissed because it fails to specify the particular
defendant(s) in each claim. To the extent that the Complaint makes allegations against “the
defendants” without further specification, the court will simply read the claims as against each and
every defendant and consider whether the plaintiffs have adequately stated a claim upon which relief
can be granted under Rules 8 and 12 of the Federal Rules of Civil Procedure. It is undisputed that
Halliburton conducted drilling operations at one of the wells at issue in this case and the plaintiffs
contend that all four wells were operated improperly by the various defendants. Halliburton has not
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cited any authority for the proposition that a plaintiff must specifically list out individual defendants
with regard to each claim, particularly where, as here, the Complaint can plausibly be read to allege
that any or all of the defendants could have operated any of the wells improperly.
A.

Count One - Negligence

Halliburton asserts that the plaintiffs have failed to state a negligence claim because the
plaintiffs cannot base their negligence claim on purported violations of state or federal statutes. The
plaintiffs’ negligence claim, however, makes no mention of alleged violations of state or federal
statutes. Rather, the plaintiffs assert that the defendants owed the plaintiffs a duty of care to operate
wells in a safe manner, that the defendants breached this duty of care by failing to take reasonable
precautions to prevent the spill or release of gases and hazardous chemicals, and that this breach of
duty caused harm to the plaintiffs by contaminating their water supply. (Compl. ¶¶ 21-35.)
Under West Virginia law, “[t]o prevail in a negligence suit, the plaintiff must prove by a
preponderance of the evidence that the defendant owed a legal duty to the plaintiff and that by
breaching that duty the defendant proximately caused the injuries of the plaintiff.” Strahin v.
Cleavenger, 603 S.E.2d 197, 205 (W. Va. 2004). “Consequently, the threshold question in all
actions in negligence is whether a duty was owed.” Id. Halliburton conducted drilling operations
at one of the wells in close proximity to the plaintiffs’ property. Based on this fact, and the
plaintiffs’ allegation that Halliburton contributed to the release of hazardous substances which
contaminated the plaintiffs’ property, I FIND that the plaintiffs have pled facts that could plausibly
give rise to a negligence claim against Halliburton. Accordingly, Halliburton’s Motion to Dismiss
is DENIED with respect to the plaintiffs’ negligence claim.
B.

Count Two - Private Nuisance
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Halliburton next contends that the plaintiffs have failed to state a private nuisance claim
because they have failed to make particularized allegations with respect to Halliburton’s conduct
constituting a private nuisance. The plaintiffs assert that the defendants caused a “substantial and
unreasonable interference” with the plaintiffs’ right to use and enjoy their property “by allowing the
spills and releases and/or the threats of spills and releases, of hazardous chemicals and allowing the
spills and releases to continue to spread to surrounding areas, including Plaintiff’s [sic] properties
and drinking water supplies.” (Compl. ¶¶ 36-40.)
“A private nuisance is a substantial and unreasonable interference with the private use and
enjoyment of another’s land.” Rhodes v. E.I. duPont de Nemours and Co., 657 F. Supp. 2d 751, 767
(S.D. W. Va. 2009) (internal quotation marks omitted). “In West Virginia, conduct causing water
pollution constitutes a private nuisance when the pollution interferes with the rights of landowners
whose land abuts the polluted water.” Id. In the present case, the plaintiffs have alleged that the
defendants’ conduct polluted the plaintiffs’ water supply. Again, taking these factual allegations as
true, and considering that Halliburton operated a well near the plaintiffs’ property, I FIND that the
plaintiffs have stated a claim for private nuisance against Halliburton. Accordingly, Halliburton’s
Motion to Dismiss is DENIED with respect to the plaintiffs’ private nuisance claim.
C.

Count Three - Strict Liability

Unlike the other claims in the plaintiffs’ Complaint, the strict liability claim specifically
names the defendant, Equitable, and fails to assert any claim against Halliburton.
D.

Count Four - Trespass

Halliburton contends that the plaintiff have failed to allege any specific conduct by
Halliburton that could support a trespass claim. The plaintiffs allege that the defendants constructed
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wells and drilled near the plaintiffs’ property, which “resulted in such physical invasion of their
property, and the aquifers underlying their property, that Plaintiff’s [sic] have suffered damages to
such property.” (Compl. ¶¶ 11, 46.)
Under West Virginia law, a trespass is “an entry on another man’s ground without lawful
authority, and doing some damage, however inconsiderable, to his real property.” Rhodes, 657 F.
Supp. 2d at 771 (internal quotation marks omitted). The plaintiffs have alleged that the defendants’
conduct, including Halliburton’s drilling, resulted in the release of hazardous substances which
contaminated their property. (Compl. ¶ 14). Accordingly, I FIND that the plaintiffs have stated a
claim for trespass against Halliburton. Halliburton’s Motion to Dismiss is DENIED as to the
plaintiffs’ trespass claim.
E.

Count Five - Medical Monitoring

Finally, Halliburton contends that the plaintiffs have failed to allege exposure to any specific
substance or chemical that could support a claim for medical monitoring. Indeed, the plaintiffs’
medical monitoring claim generally alleges that as a result of the defendants “negligent acts and/or
omissions, Plaintiffs have been exposed to hazardous substances,” and that as “a proximate result
of their exposure to such hazardous substances, Plaintiffs have a significantly increased risk of
contracting a serious latent disease.” (Compl. ¶¶ 48-50.) Moreover, none of the facts recited
elsewhere in the Complaint offer any additional support for this claim.
Courts in West Virginia have “recognized a cause of action for ‘the recovery of medical
monitoring costs, where it can be proven that such expenses are necessary and reasonably certain to
be incurred as a proximate result of the defendant’s tortious conduct.’” Rhodes, 657 F. Supp. at 773-

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74 (quoting Bower v. Westinghouse Electric Corp., 522 S.E.2d 424, 431 (W. Va. 1999)). To succeed
in a medical monitoring claim:
a plaintiff must prove that: (1) he or she has, relative to the general population, been
significantly exposed; (2) to a proven hazardous substance; (3) through the tortious
conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has
suffered an increased risk of contracting a serious latent disease; (5) the increased
risk of disease makes it reasonably necessary for the plaintiff to undergo periodic
diagnostic medical examinations different from what would be prescribed in the
absence of exposure; and (6) monitoring procedures exist that make the early
detection of a disease possible.
Rhodes, 657 F. Supp. 2d 751, 774 (internal quotation marks omitted). The plaintiff has failed to
allege any facts in support of the second, fourth, fifth, or sixth elements of a medical monitoring
cause of action. Accordingly, I FIND that the plaintiff has failed to state a claim for medical
monitoring against Halliburton. Halliburton’s Motion to Dismiss is GRANTED as to the plaintiff’s
medical monitoring claim.
IV.

Conclusions
For the foregoing reasons, Halliburton’s Motion for Partial Dismissal of the Plaintiff’s

Complaint [Docket 11] is GRANTED in part and DENIED in part. Left remaining against
Halliburton are the plaintiffs’ claims for negligence (Count One), private nuisance (Count Two), and
trespass (Count Four). The court DIRECTS the Clerk to send a copy of this Order to counsel of
record and any unrepresented party.
ENTER:

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April 28, 2011