Opinion
Civil No. 3:00-CV-2029-H
September 3, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Explorer Pipeline Company's Motion to Dismiss and/or Motion for Partial Summary Judgment, filed June 13, 2002; Plaintiffs' Response thereto, filed July 3, 2002; Defendant's Reply, filed July 18, 2002; and Plaintiffs' Sur-Reply, filed September 3, 2002. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Defendant's Motion to Dismiss should be GRANTED and Defendant's Partial Motion for Summary Judgment should be DENIED AS MOOT.
I. BACKGROUND
This case derives from an alleged spill of 600,000 gallons of methyl tertiary butyl ether ("MTBE") treated gasoline onto the properties of the Plaintiffs, which allegedly leaked into East Caddo Creek, Lake Tawakoni, and the atmosphere on or about March 9, 2000. (Pls. Second Am. Compl. at 3). All Plaintiffs reside in Hunt County, Texas. Plaintiffs allege that Defendant Explorer Pipeline Company ("Explorer") is the owner and operator of the Explorer Pipeline, which ruptured causing the gasoline spill. (Compl. ¶ 23). Plaintiffs assert claims for damages against Explorer under the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C. § 2701 et seq. and state law claims of negligence, gross negligence, strict liability, trespass, nuisance, and for injunctive relief under the citizen suit provision of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972.
Explorer seeks dismissal and/or summary judgment on Plaintiffs' OPA claims only, asserting that 1) the Court lacks jurisdiction over Plaintiffs' OPA claims because the Plaintiffs did not properly present their OPA claims to Explorer as required by the statute; 2) some of the Plaintiffs lack standing to sue under OPA because they do not own property; and 3) Plaintiffs OPA claims fail as a matter of law because Plaintiffs have not alleged that Explorer discharged gasoline "into or upon" navigable waters, as is required by the statute. In response, Plaintiffs do not contend that their presentation satisfied the statutory requirement; rather, they assert that the requirement is a condition precedent and therefore, subject to equitable modification or cure. Plaintiffs assert that they have cured the defect since the initial presentation, but in the alternative, argue that they should have be given leave to cure any defect the Court may find. Second, Plaintiffs contend that all the Plaintiffs hold or held interests in real property, and thus satisfy the statutory requirements. Lastly, Plaintiffs admit that they are alleging that the gasoline initially spilled onto the ground, but argue that because it quickly moved to East Caddo Creek and then to Lake Tawakoni, their claims can proceed under OPA.
II. ANALYSIS
A. Motion to Dismiss Standard
Plaintiffs bear the burden of proving jurisdiction. Boudreau v. United States, 53 F.3d 81, 82 (5th Cir. 1995); Gaitor v. Peninsular Occidental Steamship Co., 287 F.2d 252, 253 (5th Cir. 1961). A District Court properly grants a motion to dismiss for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. John Corp. v. City of Houston, 214 F.3d 573, 576 (5th Cir. 2000) (citation omitted). Plaintiffs plead federal jurisdiction pursuant to 29 U.S.C. § 1331. (2d Amend. Compl. ¶ 3).
Plaintiffs' claims pursuant the Oil Pollution Act clearly involve federal questions. The question before the Court, then, is whether Plaintiffs' pleadings state a cause of action upon which any relief may be granted. "Dismissal [for want of subject matter jurisdiction] is proper only when it appears certain that the Plaintiffs cannot prove any set of facts in support of their claim which would entitle them to relief." Robinson v. TCI/US West Communications, Inc., 117 F.3d 900, 904 (5th Cir. 1997) (quoting Saraw Partnership v. United States, 67 F.3d 567 (5th Cir. 1995)). In determining whether subject matter jurisdiction exists, the Court may evaluate (1) the complaint; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts. See Robinson, 117 F.3d at 904. This Court must accept all the factual allegations in Plaintiffs' Complaint as true. See Den Norske Stats Oljeselskap As v. Heeremac Vof, 241 F.3d 420, 424 (5th Cir. 2001).
B. Whether Plaintiffs satisfied the presentation requirement under OPA
Defendant Explorer asserts that Plaintiffs have not satisfied the presentation requirement of OPA and therefore, their OPA claims should be dismissed for lack of subject matter jurisdiction. See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31 (1989) ("As a general rule, if an action is barred by the terms of the statute, it must be dismissed."). The statute provides that "all claims for removal costs or damages shall be presented first to the responsible party. . . ." See 33 U.S.C. § 2713(a). Once a claim is presented, a Plaintiff may commence an action in Court if "each person to whom the claim is presented denies liability for the claim" or "the claim is not settled by any person by payment within 90 days after the date upon which the claim was presented or advertising was begun." 33 U.S.C. § 2713(c). A "claim" is defined as "a request, made in writing for a sum certain, for compensation for damages or removal costs resulting from an incident." 33 U.S.C. § 2701(3). The purpose of the presentation requirement is to "promote settlement and avoid litigation." Johnson, et al. v. Colonial Pipeline Co., 830 F. Supp. 309, 310 (E.D. Va. 1993). One Court has emphasized the need for specificity in the presentment, citing the United States Coast Guard regulations for filing claims against the OPA fund, which provide that "a claim must provide, inter alia, a general description of the nature and extent of damages, a list of damages with a `sum certain' attributed to each type of damage listed, and evidence to support the claims." See id. at 311 (citing 33 C.F.R. § 136.105, 136.109).
Both Parties agree that the presentation requirement places a mandatory condition precedent on the Plaintiffs. See Boca Ciega Hotel v. Bouchard Transp. Co., 51 F.3d 235, 240 (11th Cir. 1995); see also Leboeuf, et al. v. Texaco, et al., 9 F. Supp.2d 661, 665 (E.D. La. 1998); but see Marathon Pipeline Co. v. LaRoche Industries, Inc., 944 F. Supp. 476, 477 (E.D. La. 1996). Plaintiffs contend that the presentation requirement is subject to equitable modification or cure and in this respect, argue that a series of four statements, when considered together, cured the defect prior to the filing of Explorer's motion.
The first of the four statements is within Plaintiffs Original Petition, filed in state court on August 14, 2000. Plaintiffs claim that this Petition included "(1) the diminution in value of their properties; (2) stigma damages to and resulting reduction in the fair market value of their properties; and (3) damages created by the nuisance perpetuated by Defendant (Explorer) and the loss of the use and enjoyment of their properties." (Pls. Original Pet., filed Aug. 14, 2000). Second, Plaintiffs sent their first "notice" letter on March 22, 2001, and assert that it describes the Plaintiffs' damages in detail. Third, Plaintiffs contend that the Stipulation that their damages would not exceed $75,000, which they made in connection with their motion to remand, was sufficient to constitute a sum certain. Fourth, Plaintiffs state that on or about October 2, 2001, Plaintiffs' Counsel presented a written settlement offer to Explorer for the "sum certain" of $22,500,000.00, plus costs. Explorer attacks each of these attempts at notice by asserting that 1) the August 14, 2000 Complaint did not even allege an OPA claim and therefore could not constitute notice of one; 2) the March 22, 2001 notice letter failed to describe the nature and extent of the alleged damage suffered by the Plaintiffs, a sum certain attributable to the each of the damages alleged, or evidence to support the damages; 3) the Stipulation does not constitute a sum certain because it only stipulates that the damages will not exceed a specific amount; and 4) the settlement letter does not describe the nature and extent of the damages claimed by each Plaintiff.
Without reaching the implicit question of whether any Plaintiff could "cure" his or her failure to properly present an OPA claim by compiling various statements that when considered together fulfill the presentment requirement, the Court finds Plaintiffs' presentment inadequate. One Court has already rejected a post-Complaint notice letter that conclusorily recited "`damages for injury to or economic losses resulting from the destruction of rent property,' loss of income, elimination of property value, mental distress, loss of use and enjoyment of property, loss of quality of life, and disruption." Johnson, 830 F. Supp. at 311. The Court noted that the Plaintiffs failed to describe the nature of the damages, the basis for claiming that the damages were sustained, and to recite a sum certain for any of the damages alleged. See id. Such is the case here. The August 14, 2000 Petition provides only conclusory allegations that Plaintiffs sustained physical pain, mental anguish, diminution to the value of their properties, stigma damages and damages caused by nuisance and does not allege an OPA claim. (Original Petition, Aug. 14, 2000, at 5-6). The March 22, 2001 notice letter does not add explanation to the general damages recited in the Original Petition. After providing information about the spill, the only information given as to actual harm to the Plaintiffs is the conclusory statement "The Plaintiffs, innocent landowners and residents of Hunt County, have all been impacted by Explorer's spill." (Pls. Resp. App. at 17). The Stipulation and the Settlement offer letter also do not include any information as to the extent of the damages suffered by each Plaintiff. The Court finds that Plaintiffs made "no effort to describe the nature or extent of the alleged damages, much less to explain the basis for claiming that these damages have been sustained." Johnson, 830 F. Supp. at 311.
The Court also finds that Plaintiffs have failed to allege a sum certain for the damages sustained by any of the Plaintiffs. To the extent that the settlement letter constituted the presentment of a sum certain sustained by all Plaintiffs, Plaintiffs are defeated by their own argument. As stated above, Plaintiffs argue that both their Stipulation and the settlement letter constituted sufficient notice of the sum certain. Plaintiffs ignore, however, that the stipulation is in direct contradiction with the settlement offer because the settlement offer is in excess of the stipulation. To the extent Plaintiffs intended the stipulation and the settlement offer to constitute notice of a sum certain, Explorer could not have negotiated meaningfully with the Plaintiffs due to the contradiction. The lack of information as to the damages sustained, the basis therefor, and a sum certain did not provide Explorer with "enough information to accept the claim and make a payment that will settle this matter, or even to formulate an offer of its own that might lead to settlement." See id. Thus, the Court finds Plaintiffs have not satisfied the statutory presentment requirement.
C. Whether Plaintiffs are entitled to leave to modify notice
As an alternative argument, Plaintiffs assert that if the Court found that they did not meet the presentment requirement, they should be granted leave to make a proper presentment to Explorer. In support of this argument, Plaintiffs note that the Fifth Circuit has held that receipt of an EEOC right-to-sue letter is a condition precedent subject to equitable modification for claims asserted under Title VII. See Pinkard v. Pullman-Standard, 678 F.2d 1211, 1218-19 (5th Cir. 1992). Thus, the Court held that the receipt of a right-to-sue letter after the filing of a Title VII suit satisfies the condition precedent. See id. at 1219. In the OPA context, Courts have considered post-filing attempts at complying with the presentment requirement, as this Court did above, supra pp. 6-7. See, e.g., Johnson, 830 F. Supp. at 309. Plaintiffs ask for leave to cure their notice defect, but Plaintiffs have had over a year since they asserted OPA claims in their First Amended Complaint, filed July 24, 2001, to properly present notice to Explorer, and they have not done so. Plaintiffs' OPA claims must be dismissed without prejudice. See Hallstrom, 493 U.S. 29, 31-33; Boca Ciega Hotel, Inc. v. Bouchard Transportation Co., 844 F. Supp. 1512, 1515 (M.D. Fla. 1994), aff'd, 51 F.3d 235, 240 (11th Cir. 1995); Johnson, 830 F. Supp. at 311.
Given the Court's ruling, the issue of standing and the question of whether discharge onto dry land is actionable under OPA need not be addressed.
III. CONCLUSION
For the reasons stated above, Defendant's Motion to Dismiss is GRANTED and Plaintiffs' OPA claims are DISMISSED WITHOUT PREJUDICE. Defendant's Partial Motion for Summary Judgment is DENIED AS MOOT.