United States District Court, M.D. Pennsylvania
CHRISTOPHER BUTTS, et al., Plaintiffs.
SOUTHWESTERN ENERGY PRODUCTION CO. Defendant.
ROBERT D. MARIANI, District Judge.
Plaintiffs Christopher Butts, Julianne Griepenburg, Laura Butts, James McCrone and Ann Marie McCrone (collectively "Plaintiffs") filed a Complaint (Doc. 1) against Defendant Southwestern Energy Production Company ("SEPCO" or "Defendant") alleging claims of private nuisance (Count I) and negligence (Count II). Following discovery, SEPCO filed a Motion for Summary Judgment (Doc. 38). For the reasons that follow, the Court will deny Defendant's Motion.
II. Summary Judgment Standard of Review
Through summary adjudication, courts may dispose of those claims that do not present a "genuine issue as to any material fact' FED. R. CIV. P. 56(a). "As to materiality, [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 19 L.Ed.2d 265 (1986).
In Celotex, the Supreme Court explained how a party seeking summary judgment can establish its initial burden. Id. at 330-333.
The manner in which this showing can be made depends upon which party will bear the burden of persuasion on the challenged claim at trial.... If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim....
Where the moving party adopts this second option and seeks summary judgment on the ground that the nonmoving party-who will bear the burden of persuasion at trial-has no evidence, the mechanics of discharging Rule 56's burden of production are somewhat trickier. Plainly, a conclusory assertion that the nonmoving party has no evidence is insufficient. Such a "burden" of production is no burden at all and would simply permit summary judgment procedure to be converted into a tool for harassment. Rather, ... a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record. This may require the moving party to depose the nonmoving party's witnesses or to establish the inadequacy of documentary evidence. If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions, interrogatories, and other exchanges between the parties that are in the record. Either way, however, the moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party.
If the moving party has not fully discharged this initial burden of production, its motion for summary judgment must be denied, and the Court need not consider whether the moving party has met its ultimate burden of persuasion.
Id. at 330-333 (internal citations and emphasis omitted).
Once the moving party makes an initial showing, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Consistent with Celotex and Rule 56 of the Federal Rules of Civil Procedure, Local Rule 56.1 provides, in pertinent part,
A motion for summary judgment filed pursuant to Fed.R.Civ.P. 56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried....
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party....
As an initial matter, SEPCO's Motion fails to comply with Local Rule 56.1, and many of its arguments fail to meet the threshold requirements for summary judgment under Celotex, 477 U.S. 330-333. Defendant's Statement of Facts ("DSOF") contains only nineteen paragraphs, eight of which are without any citation to the record. (Doc. 39). Although SEPCO submits eight exhibits with its Motion, SEPCO's attachments total only thirty-nine pages, including coversheets and verifications. (Doc. 38-1). Despite conducting depositions for each of the five Plaintiffs, Defendant includes only scant excerpts of their testimony. (Def.'s Exs. A-C, E-F). While at least two Plaintiff depositions are over one hundred pages long (see L. Butts, J. McCrone Deps., Doc. 38-1, at Exs. C, F), the excerpts SEPCO provides the Court range from three to eight pages. (Exs. A-C, E-F).
Plaintiffs' Brief in Opposition (Doc. 45) and Answer to Defendant's Statement of Facts ("PSOF") (Doc. 46) failed to fill the gaps in the summary judgment record. Plaintiffs attached no exhibits, nor did they provide a counterstatement of facts. Instead, Plaintiffs' Brief and Answer to Defendant's Statement of Facts refer to the deposition testimony SEPCO submitted, without in any way supplementing the record.
In sum, since neither party substantially complied with the dictates of Rule 56.1, the Court is left with a truncated record that precludes proper summary judgment analysis.
a. Private Nuisance (Count I)
First, Plaintiffs assert that SEPCO's drilling activities constitute a private nuisance. Pennsylvania law has adopted Section 822 of the Restatement of Torts for determining the existence of a private nuisance. Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310 (1954). Section 822 defines a private nuisance as "conduct [that] is a legal cause of an invasion of another's interest in the private use and enjoyment of land." The Restatement further provides, "There is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose." Kembel v. Schlegel, 329 Pa.Super. 159, 166, 478 A.2d 11, 15 (1984) (quoting Restatement §821F). "By significant harm is meant harm of importance, involving more ...