Hagy et al v. Equitable Production Co. et al

Filing 66

MEMORANDUM OPINION AND ORDER granting in part and denying in part defendant BJ Services Company, USA's 50 MOTION for Partial Judgment on the Pleadings; granting in part and denying in part defendant Halliburton Energy Services Company's 54 MOTION for Joinder in BJ Services Company's Motion for Partial Judgment on the Pleading. Signed by Judge Joseph R. Goodwin on 7/22/2011. (cc: attys; any unrepresented party) (mkw)

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 are (1) the Motion by defendant BJ Services Company, USA (“BJ
Services”) for Partial Judgment on the Pleadings [Docket 50] and the Joinder by defendant
Halliburton Energy Services (“Halliburton”) in BJ Services Company’s Motion for Partial
Judgement on the Pleadings [Docket 54], which the court construes as a Motion. For the reasons
set forth below, the Motion by Defendant BJ Services is GRANTED in part and DENIED in part.
The Motion by defendant Halliburton is GRANTED in part and DENIED in part.
I.

Background
The plaintiffs, Dennis, Tamera, Dustin, and Clark Hagy, allege that the defendants, in the

course of drilling and operating four natural gas wells, contaminated the plaintiffs’ well water
supply. Two of the plaintiffs, Dennis and Tamera Hagy, reside in Jackson County, West Virginia,
and the plaintiffs allege that this property is in close proximity to the four natural gas wells. The two
remaining plaintiffs, Dustin and Clark Hagy, “did not own or reside at the contaminated property,
but regularly consumed the contaminated well water at the property.” (Compl. [Docket 1-1] ¶12.)

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. The plaintiffs
allege that they notified Equitable of a strange odor and smell in their water in October 2008.
According to the Complaint, 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 (“Warren”), BJ Services, 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. Counts One, Two, Four, and Five name all
four of the defendants and Count Three solely names Equitable. On December 10, 2010, 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. On February10, 2011, Halliburton moved for partial dismissal
of the plaintiffs’ Complaint under Rule 12 of the Federal Rules of Civil Procedure. The court
granted Halliburton’s Motion as to Counts Three and Five of the plaintiffs’ Complaint [Docket 30],
leaving Counts One, Two, and Four pending against Halliburton and all five counts pending against
the other three defendants.
On June 3, 2011, defendant BJ Services filed the instant Motion for Partial Judgment on the
Pleadings [Docket 50] under Rule 12(c) of the Federal Rules of Civil Procedure, requesting that this
court enter judgment in its favor as to all of the claims raised by plaintiffs Dustin and Clark Hagy.
On June 10, 2011, defendant Halliburton moved to join BJ Services’ Motion with respect to Counts

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Two and Four with respect to plaintiffs Dustin and Clark Hagy [Docket 54]. These Motions are now
ripe for review.
II.

Legal Standard
Rule 12(c) of the Federal Rules of Civil Procedure states that “[a]fter the pleadings are

closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed.
R. Civ. P. 12(c). As a general rule, “[w]hen considering a defendant’s motion for judgment on the
pleadings, the court must base its decision solely on information obtained from the pleadings.” John
S. Clark Co., Inc. v. United Nat’l Ins. Co., 304 F. Supp. 2d 758, 763-64 (M.D. N.C. 2004).
Accordingly, “the standards under Federal Rule of Civil Procedure 12(c) for a motion for judgment
on the pleadings are identical to those applicable to a Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss.” Exec. Risk Indem., Inc. v. Charleston Area Med. Ctr. Inc., 681 F. Supp. 2d 694,
707 n. 17 (S.D. W. Va. 2009). Rule 12(d), however, provides that “a district court should treat a
motion for judgment on the pleadings as a motion for summary judgment where ‘matters outside the
pleadings are presented to and not excluded by the court.’” Garner v. Astrue, No. 10-1743, 2011 WL
2451723, at *1 (4th Cir. June 21, 2011) (quoting Fed. R. Civ. P. 12(d)). In such a case, Rule 12(d)
allows that “[a]ll parties must be given reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d). Thus, the standard for assessing a motion for
judgment on the pleadings under Rule 12(c) is identical to the Rule 12(b)(6) standard unless the
court decides to consider matters outside the pleadings.
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). As the Supreme Court stated
in Ashcroft v. Iqbal, Rule 8 of the Federal Rules of Civil Procedure “does not require ‘detailed
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factual allegations’ but ‘it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.’” 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. 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.
III.

Analysis
In its Motion, BJ Services argues first that it is entitled to judgment on the pleadings as to

Counts Three and Five for strict liability and medical monitoring, respectively, based on this court’s
earlier Order dismissing these claims against defendant Halliburton. Second, BJ Services argues that
it is entitled to judgment on the pleadings with respect to Counts One, Two, and Four, for
negligence, private nuisance, and trespass, respectively, asserted by plaintiffs Dustin and Clark Hagy,
because these plaintiffs had no ownership interest in the allegedly contaminated property. BJ
Services argues that, because these plaintiffs neither owned nor resided on the property, Counts One,
Two, and Four fail as a matter of law. The plaintiffs, who do not oppose dismissal of Counts Three

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and Five, argue that they adequately pled facts in their Complaint that could plausibly give rise to
negligence, private nuisance, and trespass claims on behalf of Dustin and Clark Hagy.
A.

Counts Three and Five Against Defendant BJ Services

The plaintiffs “do not oppose dismissal of the strict liability [Count Three] and the medical
monitoring claims [Count Five].” (Pls.’ Resp. BJ Services’ Mot. Partial J. Pleadings [Docket 53],
at 3.) Accordingly, for the reasons set forth in this court’s earlier Memorandum Opinion and Order,
defendant BJ Services’ Motion is GRANTED in part. Counts Three and Five of the plaintiffs’
Complaint are hereby DISMISSED as to defendant BJ Services.
B.

Count One for Negligence Against Defendant BJ Services on Behalf of Plaintiffs
Clark and Dustin Hagy

Under West Virginia law, “[i]t is the general and widely accepted rule that in order to prove
actionable negligence there must be shown a duty on the part of the person charged with negligence
and a breach of such duty on the part of the person charged with negligence and a breach of such
duty.” Atkinson v. Harman , 158 S.E.2d 169, 173 (W. Va. 1967). “These elements of duty, breach
and injury are essential to actionable negligence and in the absence of any of them the action must
fall.” Id. “[I]n order to form the basis for a valid [negligence] cause of action, this duty must be
brought home to the particular plaintiff, for a duty owing to everybody can never become the
foundation of an action until some individual is placed in position which gives him particular
occasion to insist upon its performance.” Robertson v. LeMaster, 301 S.E.2d 563, 567 (W. Va.
1983) (internal quotation marks omitted). The existence and scope of such a duty is “an issue of law
for the court rather than for the jury, to be determined by reference to the body of statutes, rules,

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principles, and precedents which make up the law.” Aikens v. Debow, 541 S.E.2d 576, 581 (W. Va.
2000) (internal quotation marks omitted).
The present inquiry, however, is not whether the defendants actually owed plaintiffs Dustin
and Clark Hagy a legal duty of care. The inquiry is whether the plaintiffs’ Complaint contains
sufficient factual matter, accepted as true, to state a plausible claim for relief based, in part, on the
existence of a legal duty. Although Dustin and Clark Hagy did not reside on the allegedly
contaminated property, they have alleged that the defendants owed them a duty, that the defendants
breached this duty by contaminating water that the plaintiffs consumed, and that the defendants’
breach caused the plaintiffs, including Dustin and Clark, harm. Moreover, the defendants simply
have not provided any legal support for the assertion that the defendants only owed a legal duty to
those Hagy family members who lived on the property full time. Accordingly, the court FINDS that
plaintiffs Dustin and Clark Hagy have stated a claim for negligence upon which relief could be
granted.1 BJ Services’ Motion is DENIED as to Dustin and Clark Hagy’s negligence claims.
C.

Count Two for Private Nuisance Against Defendants BJ Services and
Halliburton on Behalf of Plaintiffs Clark and Dustin Hagy

Under West Virginia law, “[a] private nuisance is “a substantial and unreasonable
interference with the private use and enjoyment of another’s land.” Rhodes v. E.I. du Pont Nemours
and Co., 657 F. Supp. 2d 751, 767 (S.D. W. Va. 2009). “Recovery for a private nuisance is limited
to plaintiffs who have suffered a significant harm to their property rights or privileges caused by the
1

Even if I were to consider “matters outside the pleadings,” i.e., the plaintiffs’ assertion that
Dustin and Clark Hagy regularly visited the property and even resided there temporarily while the
defendants conducted drilling operations, I would find that there are genuinely disputed material
facts as to the existence of a legal duty owed to Dustin and Clark Hagy.
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interference.” Hendricks v. Stalnaker, 380 S.E.2d 198, 201 (W. Va. 1989). The Restatement
(Second) of Torts explicitly limits liability for private nuisance to “those who have property rights
and privileges in respect to the use and enjoyment of the land affected.” Restatement (Second) of
Torts § 821E (1979). Comment d to section 821E states that “occupancy is a sufficient interest in
itself to permit recovery for invasions of the interest in the use and enjoyment of the land.”
Restatement (Second) of Torts § 821E cmt. d (1979). Accordingly, “members of the family of the
possessor of a dwelling who occupy it along with him may properly be regarded as sharing
occupancy with intent to control the land and hence as possessors, [. . .] When there is interference
with their use and enjoyment of the dwelling they can therefore maintain an action for private
nuisance.” Id.
It is undisputed that plaintiffs Dustin and Clark Hagy do not have “property rights” in the
land affected, however, the plaintiffs have asserted that Dustin and Clark “regularly consumed well
water at the property.” (Compl. ¶12.) Moreover, the court has considered the entire record as to
their nuisance claims, pursuant to Rule 12(d), and believes that there are disputed issues of material
fact as to whether Dustin and Clark Hagy visited their parents’ home or resided there during the time
period in question and thus had a privilege to use and enjoy the land affected. Accordingly, the
Motions for judgment on the pleadings are DENIED as to Dustin and Clark Hagy’s private nuisance
claims.
D.

Count Four for Trespass Against Defendants BJ Services and Halliburton on
Behalf of Plaintiffs Clark and Dustin Hagy

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In contrast, a plaintiff seeking to recover for trespass under West Virginia law must have an
actual legal interest in the land affected. “We recognize that the gist of trespass is injury to
possession.” Belcher v. Greer, 382 S.E.2d 33, 35 n.1 (W. Va. 1989). “To sustain an action for
trespass, the plaintiff must have either actual physical possession or constructive possession, usually
through holding legal title.” Id.; see Restatement (Second) of Torts §157 (1979) (discussing the
“possession” required to maintain an action for trespass).
As previously discussed, neither Dustin nor Clark Hagy held legal title to the allegedly
contaminated land and the Complaint does not contain any facts that would support a claim of legal
possession of the land. Accordingly, the court FINDS that plaintiffs Dustin and Clark Hagy have
failed to state a claim for trespass upon which relief could be granted. The Motions for judgment
on the pleadings are GRANTED as to Dustin and Clark Hagy’s trespass claims.
IV.

Conclusions
For the foregoing reasons, the Motion by defendant BJ Services Company, USA (“BJ

Services”) for Partial Judgement on the Pleadings [Docket 50], is GRANTED in part and DENIED
in part. The Motion for Joinder by defendant Halliburton Energy Services in BJ Services
Company’s Motion for Partial Judgement on the Pleadings [Docket 54], is GRANTED in part and
DENIED in part. The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.

ENTER:

July 22, 2011

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