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Fiorentino v. Cabot Oil & Gas Corp.

November 15, 2010


The opinion of the court was delivered by: Hon. John E. Jones III



This action commenced on November 19, 2009, with the filing of a complaint by several property owners to recover damages allegedly arising from Defendants Cabot Oil and Gas Corporation ("Cabot") and Gas Search Drilling Services Corporation's ("Gas Search") (collectively, "Defendants") operation of natural gas wells in Dimock Township, Susquehanna County, Pennsylvania. In the controlling Second Amended Complaint, filed on May 17, 2010, Plaintiffs Norma J. Fiorentino, et al. (collectively, "Plaintiffs") assert the following causes of action: (I) a claim pursuant to the Hazardous Sites Cleanup Act, 35 P.S. §§ 6020.101-6020.1305 ("HSCA"); (II) negligence; (III) private nuisance; (IV) strict liability; (V) breach of contract; (VI) fraudulent misrepresentation; (VII) medical monitoring trust funds; and (VIII) gross negligence. We have diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because the amount in controversy with respect to each Plaintiff exceeds $75,000 and is between citizens of separate states. Presently before the Court are Defendants' Motion to Strike certain allegations contained in the Second Amended Complaint (Doc. 26, "Motion to Strike") and Motion to Dismiss the Second Amended Complaint, in part (Doc. 28, "Motion to Dismiss"). Both Motions were filed on June 1, 2010 and have been fully briefed. (Docs. 27, 29, 31-34.) We will dispose of both Motions in this Memorandum and Order.


A. Motion to Dismiss

In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached to or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ---, ---, 129 S.Ct. 1937, 1949 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . ." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than "a sheer possibility." Iqbal, 129 S.Ct. At 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss. Iqbal, 129 S.Ct. at 1950. Next, the district court must identify "the 'nub' of the . . . complaint -- the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 127 S.Ct. 1964-65, 1969 n.8). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.

B. Motion to Strike

Pursuant to Federal Rule of Civil Procedure 12(f), a "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). "The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters." Natale v. Winthrop Resources Corp., 2008 U.S. Dist. LEXIS 54358, 2008 WL 2758238 (E.D. Pa. July 9, 2008). Relief under Federal Rule of Civil Procedure 12(f) is generally disfavored, and will be denied unless the allegations "have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case." Id.


Plaintiffs agree that Defendants "set out a generally accurate factual and procedural history" (Doc. 32), and thus we will derive the following background information from the Defendants' Brief in Support of the Motion to Dismiss. (See Doc. 29 pp. 1-6.)We note that, in accordance with the Standard of Review, we view all facts and reasonable inferences in the light most favorable to Plaintiffs as the non-moving party.

Plaintiffs are sixty-three individuals who reside, or have resided, in the towns of Dimock and Montrose, Pennsylvania. Plaintiffs allege they executed leases with Cabot, giving Cabot the right to extract natural gas from their properties. Plaintiffs allege that Defendants improperly conducted hydrofracturing*fn1 and other natural gas production activities that allowed the release of methane, natural gas, and other toxins onto Plaintiffs' land and into their groundwater. In support of the eight counts alleged in the Second Amended Complaint, Plaintiffs maintain that they have experienced property damage and physical illness, that they live in constant fear of future illness, and that they suffer severe emotional distress. Thus, Plaintiffs request an injunction prohibiting future natural gas operations, and seek compensatory and punitive damages, the cost of future health monitoring, attorneys' fees and costs, and any other appropriate relief.

In their Motion to Dismiss, Defendants allege that Counts One (HSCA), Four (strict liability), Seven (medical monitoring trust fund), and Eight (gross negligence) must be dismissed for failures to state claims upon which relief could be granted. (See Doc. 29 p. 4.) Defendants also seek to strike from the Second Amended Complaint the following allegations: (1) Plaintiffs' alleged injuries and damages based on "fear of future physical illness" in subparagraph 51.f; (2)

Plaintiffs' allegations relating to emotional distress damages in paragraphs 1, 51, and on page 54 paragraph iv; (3) Plaintiffs' punitive damages allegations in paragraphs 52, 76, 125, 135, and on page 54 paragraph v; (4) Plaintiffs' allegations relating to recovery of attorneys' fees and litigation costs in paragraph 52 and on page 54 paragraph vi; and (5) Plaintiffs' allegations of "negligence per se" in paragraph 65. (See Doc. 27 pp. 1-2.)


For the purposes of efficiency, we will first address Defendants' Motion to Dismiss (Doc. 28), and then resolve any undisposed of allegations remaining within Defendants' Motion to Strike (Doc. 26).

A. Motion to Dismiss

To reiterate, Defendants assert that Plaintiffs have failed to state a claim in each of Counts One, Four, Seven, and Eight, and thus seek dismissal of those Counts from the Second Amended Complaint. We will address each Count in turn.

1. Count One -- HSCA

Defendants argue that Plaintiffs' cause of action asserted under the HSCA must be dismissed because Plaintiffs have failed to plead the two following requirements: (1) that they gave sixty days' notice before commencing suit and (2) the Pennsylvania Department of Environmental Protection ...

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