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Frederick J. Roth and Debra v. Cabot Oil & Gas Corporation and Gassearch Drilling Services

October 15, 2012

FREDERICK J. ROTH AND DEBRA A. ROTH, :
PLAINTIFFS
v.
CABOT OIL & GAS CORPORATION AND GASSEARCH DRILLING SERVICES CORPORATION, DEFENDANTS



The opinion of the court was delivered by: (Magistrate Judge Carlson)

: (Judge Jones)

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

The Plaintiffs in this action, Frederick J. Roth and Debra A. Roth (collectively, "Plaintiffs"), have sued Cabot Oil & Gas Corporation and GasSearch Drilling Services Corporation (collectively, "Defendants"), alleging that Defendants' oil and gas drilling operations in Springville Township and Dimock Township in Susquehanna County, Pennsylvania have damaged the Plaintiffs' property in a variety of ways. Plaintiffs originally commenced this action in the Court of Common Pleas of Susquehanna County on March 19, 2012. (Doc. 1.) On May 14, 2012, Defendants removed the action to this Court pursuant to this Court's diversity jurisdiction. (Id.)

In their amended complaint, filed on August 6, 2012, Plaintiffs have alleged nine separate causes of action, including: (i) violation of the Hazardous Sites Cleanup Act, 35 Pa. Cons. Stat. Ann. § 602.101 et seq.; (ii) negligence; (iii) negligence per se; (iv) private nuisance; (v) strict liability; (vi) trespass; (vii) inconvenience and discomfort; (viii) breach of contract; and (ix) fraudulent misrepresentation and/or inducement.*fn1 (Doc. 42.) Generally speaking, Plaintiffs contend that Defendants negligently conducted hydraulic fracturing and associated natural gas production activities, which resulted in the release of methane gas and other chemicals onto Plaintiffs' property and into Plaintiffs' groundwater. Plaintiffs maintain that their property has been, and continues to be, contaminated. Plaintiffs further allege that their peaceful enjoyment of their property has been compromised, and the value of their property and residence has diminished as a result of Defendants' oil and gas activities. (Id.)

Prior to the District Court's entry of a case management order in this case, Defendants moved for the entry of a so-called "Lone Pine" case management order, in order to compel Plaintiffs to present a prima facie evidentiary showing in support of their claims before traditional discovery practice would commence. (Doc. 33.) The District Court subsequently referred this motion to the undersigned for resolution. (Doc. 48.) The motion is fully briefed and is ripe for disposition. (Docs. 34, 38, 45, 49.)

In the motion, Defendants argue that the Court should forego traditional discovery and case-management practice in this case in favor of requiring Plaintiffs initially to make a prima facie evidentialshowing of exposure, injury, and causation in support of their claims. Defendants maintain that Plaintiffs should be required to produce this information before the parties engage in full-blown discovery, which Defendants worry will be expensive and time consuming -- and a process that they hope may be avoided entirely given their "serious doubts regarding Plaintiffs' ability to make even a prima facie showing of exposure, injury, and causation." (Doc. 34, at 3.) Defendants insist that Plaintiffs will not be prejudiced by the imposition of this requirement, and suggest by making a "comprehensive initial disclosure . . . of over 5,800 documents" they have afforded Plaintiffs' experts all the information they need to establish a prima facie showing of exposure, injury, and causation -- if possible -- in this case. (Id., at 4.)

Plaintiffs take a decidedly different view of the motion, and oppose it as an extraordinary and improper attempt by Defendants to seek summary judgment at the outset of the case, and to impose upon Plaintiff the unfair initial burden of proving the legitimacy of their claims before the parties have engaged in any meaningful discovery. Plaintiffs observe that this case involves straightforward property damage claims, brought by two married plaintiffs against two defendants, and Plaintiffs thus argue that the familiar nature of the claims, and the limited number of parties to the litigation make this case unsuited to a Lone Pine order, which are typically reserved for complex mass- and toxic-tort claims.

Upon consideration, we agree with Plaintiffs that this case does not warrant the imposition of a Lone Pine order. Instead, we believe that the case should be placed on a standard case management order in accordance with Rule 16 of the Federal Rules of Civil Procedure, and in line with the order the District Court has already entered in this case. (Doc. 40.) In reaching this conclusion, we find that the nature of the claims in this case do not compel the derogation of the Federal Rules of Civil Procedure in favor of imposing an extraordinary case management procedure that would force Plaintiffs to establish a prima facie case before Defendants may be obligated to respond to discovery or otherwise respond to this litigation. Although we acknowledge that some courts have, in certain mass- and toxic tort cases, imposed Lone Pine orders along the lines of that proposed in this case, we find the claims in this case, and the relatively early procedural posture of this litigation, do not warrant the entry of such an unusual and burdensome order at this stage of the proceedings. Moreover, we are confident that the Court is equipped with the discretion, flexibility, and broad authority to ensure that the discovery and litigation burdens do not become excessive or unreasonable, including the power to limit or stage discovery, and to carefully oversee the pretrial litigation of this action in order to respond to disputes as they may arise.

II. BACKGROUND

Plaintiffs claim that Defendants have engaged in environmental contamination and pollution through releases, spills, and discharges of combustible gases, hazardous chemicals, and industrial wastes as a result of gas drilling and exploration activities conducted near Plaintiffs' home and property at a number of different wells proximate to Plaintiff's property. It appears that in 2008, Plaintiffs entered into an oil and gas lease with Cabot Oil & Gas. Plaintiffs claim that in the course of agreeing to this lease, Cabot represented that (i) the company would test Plaintiffs' pond and domestic water supplies prior to and after the commencement of drilling operations; (ii) Cabot would disclose the results of the water tests to Plaintiffs; (iii) Plaintiffs' land would remain essentially preserved and undisturbed; (iv) Plaintiff's quality of life and use and enjoyment of their property would not be compromised by Defendants' drilling operations; (v) if Cabot's operations affected Plaintiffs' property or water supply, Cabot would remediate the condition; and (vi) Cabot would remain in compliance with state and federal laws and regulations governing safe oil and gas drilling practices near Plaintiffs' property. (Doc. 42, Am. Compl., ¶¶ 18(a) - (f).)

Plaintiffs allege that despite these representations, Defendants' hydraulic fracturing activities released methane gas into Plaintiffs' drinking water in or around August 2010, which has prevented Plaintiffs from accessing drinking water on their property. (Id., ¶¶ 30-32.)

Plaintiffs also allege that in or around April 2012, the Pennsylvania Department of Environmental Protection ("DEP") observed that Defendants had caused or permitted holes to exist in waste pit liners at one of the well sites, which were not timely repaired. Moreover, Plaintiffs claim that during the course of making the repairs that DEP required, Defendants caused hazardous flowback and wastewater to enter Plaintiffs' groundwater supply, causing further pollution of Plaintiffs' property. (Id., ¶¶ 34-40.)

Plaintiffs also allege that the DEP cited Defendants with certain violations for failing to properly case and cement one of the wells, after it had been observed that the poor cementing job at the well had permitted bubbling gas near the surface of the gas well. (Id.) Even before these alleged violations and torts, Plaintiffs claim that in the summer of 2011, DEP had cited Defendants with failing to properly construct waste pits and wells near Plaintiffs' property, and after the drilling of these wells, DEP sampled Plaintiffs' ground water ...


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