On March 25, 2015, the United
States District Court for the Middle District of Pennsylvania entered summary
judgment in favor of an exploration and production company on claims of strict
liability, nuisance, and negligence, by a Tioga County landowner related to
drilling activity near his property. Chief
Magistrate Judge Carlson found that the uncontroverted evidence offered by the
E&P company demonstrated that “defendants are entitled to summary judgment
in their favor on the merits.” The case
is Kamuck v. Shell Energy Holdings GP,
LLC, No. 4:11-CV-1425, 2015 U.S. Dist. LEXIS 37538 (M.D. Pa. Mar. 25,
2015).
A crucial factor in the Court’s
decision was that the plaintiff failed to produce any evidence to support many
of the factual allegations made in his complaint.
For example, [plaintiff] has never
identified the time, date, location, or extent [of] any toxic chemical release
that he alleges took place on any part of the [plaintiff’s] Property or
adjoining properties. Neither has [plaintiff]
identified any toxic substances that were allegedly released on his
property. [Plaintiff] has also failed to
produce any evidence identifying specific environmental contamination, fire,
explosion or any other hydro-carbon production mishap that affected his
well-being or property. Nor has he
presented any competent proof supporting his nuisance claims relating to
vehicle traffic and the alleged spraying of toxic chemicals on the roadway
adjoining his land.
Turning to the merits of the
individual causes of action, the Court first addressed plaintiff’s strict liability
claim. The Court accepted the E&P
company’s uncontroverted “evidence and argument that support [its] position
that natural gas drilling activities, including hydraulic fracturing, do not
constitute abnormally dangerous activities under Pennsylvania law giving rise
to strict liability.” The Court noted
that its decision “is in line with precedent in this field within
Pennsylvania,” “with legal authority in other jurisdictions,” and “follows the
prior precedent of this Court.”
With respect to plaintiff’s
private nuisance claim, the Court found that the lack of evidence compelled
entry of summary judgment. Plaintiff
“presented nothing to support this private nuisance claim beyond his subjective
upset at the volume of road traffic he has experienced periodically outside his
home on a public thoroughfare.” Under
Pennsylvania law, “mere roadside noise and dust do not constitute private
nuisance.”
Finally, the Court addressed
plaintiff’s failure to support his negligence claim. “[D]ue to [plaintiff’s] inaction, and a
complete failure of competent proof, we are unable to identify any duty
breached by the defendants; any causal relationship between that duty and
injuries to the plaintiff; and any ascertainable damages resulting from that
injury” and, consequently, “this claim also now fails as a matter of law.”
In addition to finding the E&P
company was entitled to summary judgment on the merits, the Court also found
that plaintiff’s failure to prosecute his case and to obey court orders with
respect to discovery obligations offered an independently adequate ground upon
which to dismiss the case. Despite
plaintiff’s pro se status, “courts
have directly spoken to the type of willful avoidance of litigation
responsibilities which has marked [plaintiff’s] approach to this lawsuit over
the past two years, condemning the practice of avoiding depositions and
generally ‘playing possum’ when instructed to fulfill their litigation
responsibilities.” “The plaintiff cannot
refuse to address the merits of his claims, and then assert the untested merits
of these claims as grounds for denying a motion to sanction him.”
Read the Court’s complete opinion.This post was written by Jeremy Mercer (jeremy.mercer@nortonrosefulbright.com or 724 416 0440) and Michael Gaetani (michael.gaetani@nortonrosefulbright.com or 724 416 0429) from Norton Rose Fulbright's Energy Practice Group.
