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Suzanne Berish, et al v. Southwestern Energy Production Company and Southwestern Energy Company

February 3, 2011

SUZANNE BERISH, ET AL., PLAINTIFFS,
v.
SOUTHWESTERN ENERGY PRODUCTION COMPANY AND SOUTHWESTERN ENERGY COMPANY, DEFENDANTS,



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

Presently before the Court is Defendant Southwestern Energy Production Company's ("SEPCO") Motion to Dismiss part of Count I, all of Count IV, and the demand for damages for emotional distress except as to Plaintiff C.S. (Doc. 7.) After the Motion was filed, a Stipulation was filed by the parties pursuant to Fed. R. Civ. P. 41 dismissing the part of Count I of the Complaint that asserted a claim under 35 P.S. § 6020.1115. (Doc. 18.) The Court signed an Order with regard to this Stipulation on December 9, 2010. Therefore, the Court need only address Count IV of the Complaint and the demand for damages for emotional distress. For the reasons stated below, SEPCO's Motion will be granted in part and denied in part.

BACKGROUND

The facts alleged in the Complaint are as follows. Plaintiffs are all residents of Susquehanna County, Pennsylvania. SEPCO is a Texas corporation conducting drilling activities for the purpose of oil and gas exploration and production throughout Pennsylvania, including Susquehanna County. The majority of the Plaintiffs' properties are less than two-thousand feet from SEPCO's Price #1 Well. Starting in April 2008, SEPCO was engaged in drilling and extraction activities at Price #1 Well. SEPCO's drilling activities include hydraulic fracturing and horizontal drilling. Hydraulic fracturing requires the discharge of significant volumes of hydraulic fracturing fluids into the ground under extreme pressure in order to dislodge and discharge underground gas. The composition of the fracturing fluid, or "fracking fluid," includes hazardous chemicals that are toxic and carcinogenic. Other hazardous chemicals, including diesel fuel and lubricating materials, are also used in the operation. As a result of Price #1 Well's insufficient casing, pollutants and other industrial waste, including the fracking fluid and other hazardous chemicals such as barium and strontium, were discharged into the ground and contaminated the water supply used by the Plaintiffs. This contamination has not only exposed Plaintiffs to hazardous materials and created the possibility of causing present and future health problems, but it has also lowered the value of Plaintiffs' properties.

In their Complaint, which was initially filed in the Court of Common Pleas of Susquehanna County, Plaintiffs brought claims for violation of the Hazardous Sites Cleanup Act (Count I); Negligence (Count II); Private Nuisance (Count III); Strict Liability (Count IV); Trespass (Count V); and to set up a Medical Monitoring Trust Fund (Count VI). Plaintiffs seek compensatory and punitive damages, the costs of future health monitoring, and preliminary and permanent injunctions barring Defendants from engaging in the activities set forth in the Complaint. Once they removed the case, SEPCO filed a Motion to Dismiss part of Count I, all of Count IV, and the demand for damages for emotional distress except as to Plaintiff C.S. (Doc. 7.) After the Motion was filed, a Stipulation was filed by the parties pursuant to Fed. R. Civ. P. 41 dismissing the part of Count I of the Complaint that asserted a claim under 35 P.S. § 6020.1115. (Doc. 18.) The remainder of SEPCO's Motion has been fully briefed and is ripe for review.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

DISCUSSION

I. Plaintiffs' Strict Liability Claim (Count IV)

Plaintiffs' Strict Liability claim will not be dismissed.

It is the court that determines as a matter of law whether an activity is abnormally dangerous so that strict liability will be imposed. Diffender v. Staner, 722 A.2d 1103, 1107 (Pa. Super. Ct. 1998) (internal citations omitted). In determining whether strict liability for an abnormally dangerous activity should apply, the Pennsylvania courts, in a ...


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