United States District Court, M.D. Pennsylvania
MARTIN C. CARLSON, Magistrate Judge.
In its current posture this case presents an unusual circumstance. The plaintiff who has brought this action, Edward Kamuck, has becomes estranged from his counsel, who has withdrawn from the case. Kamuck, who has for the past two years been proceeding pro se has also essentially boycotted his own litigation, failing to comply with discovery demands, discounting court orders, declining to litigate the claims which he has brought and generally "playing possum" when litigation demands are thrust upon him. Fattah v. Beard, 214 F.Appx. 230, 233 (3d Cir. 2007). Instead of fulfilling his responsibilities as a litigant Kamuck has, sadly, simply insisted that the defendants should settle this case on terms that he deems favorable.
This dilatory behavior has now persisted for two years despite repeated and explicit warnings from this Court that the failure to actively, and properly, litigate this matter may result in the dismissal of this case. Moreover, the dispositive summary judgment motion filed by the defendants, which has never been fully and adequately addressed by Kamuck, exposes the legal and factual bankruptcy of Kamuck's claims. In this setting where the plaintiff has, in effect, abandoned his own litigation by failing over the past two years to abide by court orders, comply with discovery, and adequately respond to dispositive motions, and the plaintiff's claims now fail on their merits, we are now compelled to conclude that dismissal of this matter is warranted.
II. Statement of Facts and of the Case
On August 3, 2011, the plaintiff, Edward Kamuck, acting through counsel filed this civil complaint. (Doc. 1.) The well-pleaded facts set forth in the plaintiff's initial counseled complaint recited that Kamuck was a totally disabled Vietnam War veteran. (Doc. 1, ¶1.) In December of 2009, Kamuck purchased a 93 acre tract of land in rural Tioga County. ( Id., ¶17.) This tract of land was part of a larger property formerly known as the Copp property. ( Id., ¶8.) The Copp Property was a 323 acre property in Tioga County, which was subject to the Copp Lease, an Oil and Gas Lease, a lease which permitted removal of mineral resources, contained a ten-year primary term and, if certain mineral extraction activities were initiated during that primary term, provided the Lessee with a fee simple determinable. (Id. at ¶¶ 8-10.) The Copp Lease also provided the Lessee with a right to unitize the Copp Lease with other leases for production from the Onondaga, Oriskany, or deeper formations. (Id. at ¶ 13.) The rights conferred by the original Copp Lease, however, did not reach, or speak to, extraction of natural gas from Marcellus Shale formations. When the Copp Property was later subdivided into 5 properties, including the land purchased by the plaintiff, each property owner took the property subject to mineral rights conferred by the Copp Lease. (Id. at ¶¶ 17, 18.)
By 2010, the defendants were lessees under the Copp Lease, and sought to expand their mineral rights to include extraction of natural gas from Marcellus Shale formations. Towards that goal, the defendants approached each of the owners of a property subdivided from the original Copp Property and asked these property owners to execute an Amendment and Ratification ("Amendment") to the Copp Lease, authorizing the extraction of these Marcellus Shale resources on the property owner's land, subject to a unitizing agreement. ( Id., Exhibit 8.) All of the property owners who held lands formerly encompassed by the Copp Lease signed the Amendment to the Copp Lease with one exception-the plaintiff, Edward Kamuck. Accordingly, those adjoining properties are subject to the Copp Lease, as amended, and the defendants have commenced drilling and extraction of natural gas from these properties under the terms of the amended Copp Lease. Because Kamuck refused to enter into the Amended Copp Lease, the original 10-year lease on his property expired by its own terms on June 12, 2011.
The defendants then began natural gas extraction from the Marcellus Shale deposits found beneath the properties of adjoining land owners who had signed the Copp Lease addendums, using a technique called "fracking", in which wells are drilled and shale deposits are fractured by pumping chemicals known as "fracking fluid" into the wells, thus releasing the natural gas trapped within the shale deposits.
After defendants commenced Marcellus Shale extraction and production on these adjoining properties, on August 3, 2011, Kamuck filed this civil complaint. (Doc. 1.) In his complaint, Kamuck alleged that the activities of the defendants, who are using "fracking" technology to extract natural gas from Marcellus Shale on these adjoining properties, was conducted in a manner that was harmful both to the plaintiff and his property. Kamuck's initial, counseled complaint then brought ten separate claims, sounding both in contract and in tort. Thus, Kamuck brought a claim against the defendants for breach of contract under the Copp Lease, ( Id., Count 1); for breach of a duty of good faith and fair dealing ( Id., Count 2); declaratory judgment counts seeking declarations interpreting and invalidating aspects of the Copp Lease and amendments, ( Id., Counts 3, 4 and 5); a claim for anticipatory trespass, ( Id., Count 6); a count alleging that the defendants' activities constitute a private nuisance, ( Id., Count 8); a count alleging negligence by the defendants in their Marcellus Shale drilling operations, ( Id., Count 9); and a count asserting strict liability based upon the theory that natural gas extraction through "fracking" is an ultra hazardous activity, ( Id., Count 10).
The defendants moved to dismiss this complaint in its entirety, alleging that none of Kamuck's tort or contract claims state a claim upon which relief may be granted. (Doc.11.) In addition, the defendants filed a motion to strike a series of averments from the complaint relating to punitive damages, attorneys' fees, and claims for emotional distress. (Doc. 13.) Following briefing of these issues, in April of 2012, the motion to dismiss was granted with respect to the plaintiff's contract-based claims, as well as the plaintiff's anticipatory trespass claim, negligence per se claim, and gross negligence claim, but denied with respect to Kamuck's negligence, strict liability and nuisance claims, the sole surviving claims in this lawsuit. (Doc. 39.) Upon the consent of the parties, this matter was then reassigned to the undersigned for trial. (Doc. 40.)
What then followed was the slow disintegration of Kamuck's case. While we initially set discovery and pretrial schedules for this case which would have completed discovery in 2012, those efforts were hobbled by an increasingly dysfunctional relationship between the plaintiff and his attorney. By January of 2013, this relationship was irretrievably broken, with the plaintiff refusing to speak with his own counsel or even look at counsel during the course of a mediation conducted by the Court on January 25, 2013. (Doc. 66.) Presented with Mr. Kamuck's increasingly erratic conduct and stubborn refusal to co-operate or communicate with his own counsel, we granted plaintiff's counsel leave to withdraw and directed Mr. Kamuck to report to us by April 22, 2013, regarding his efforts to obtain new counsel. (Doc. 67.)
We then, sadly, began receiving communications from Mr. Kamuck which suggested that his expectations for this litigation were wholly divorced from reality. Specifically, Mr. Kamuck adopted a posture that would repeat itself throughout this litigation, a posture in which he reported that he was unable to retain counsel, suggested that he was unwilling or unable to conduct discovery, and failed to meet litigation deadlines, but persisted in requesting that we schedule further mediation efforts on his behalf, efforts that were unavailing given the plaintiff's unwillingness to compromise his position. (Docs. 68 and 70.)
Mr. Kamuck's approach to this litigation, which entailed neither advancing nor retreating, soon began to effect the scheduling of this case to the profound prejudice of the defendants. Thus, we were compelled to extend the deadline for preparation of a case management schedule in May 2013 due to delays on Mr. Kamuck's part in participating in this process, something he was required to do. (Docs. 72 and 74.) Despite providing Mr. Kamuck with an extension of time in which to participate in the formulation of a case management plan, when the extended deadline for submission of this plan arrived, Mr. Kamuck once again declined to participate in this process, and the defendants were compelled to unilaterally submit a proposed case management plan. (Doc. 75.)
In May 31, 2013, we conducted a case management conference with Mr. Kamuck and defense counsel. (Doc. 91, ¶¶53 and 54.) In order to eliminate any prejudice to Mr. Kamuck, at that time we directed the defense to provide the plaintiff with a complete set of the discovery materials previously given to Kamuck's former counsel, and the defense complied with this direction. (Id.) We also stressed to Mr. Kamuck the importance of his compliance with all discovery and litigation obligations, even if he proceeded pro se and while he was continuing his search for new counsel. (Id.) On June 11, 2013, we then set a case management schedule which called for completion of discovery, including expert discovery, by October 28, 2013. (Doc. 77.) We also instructed Mr. Kamuck, who was now proceeding pro se, on his responsibilities as a litigant to comply with court orders.
What followed then were several months of apparent indifference and inaction by Mr. Kamuck regarding his responsibilities in this litigation which he had instigated. Thus, on June 21, 2013, defendants' counsel wrote a letter to Mr. Kamuck describing a series of discovery failures and deficiencies on the part of the plaintiff. These deficiencies included Kamuck's failure to provide a computation of damages, failure to provide documents requested by defendants, incomplete and missing responses to interrogatories served by defendants, and incomplete or incorrect responses to defendants' requests for admission. (Doc. 91, ¶56.) Mr. Kamuck did not cure these deficiencies. Accordingly, one month later, on July 25, 2013, defendants sent a follow-up letter to Mr. Kamuck noting that he had failed to respond to the June 21 correspondence and reminding him of his obligations under the Federal Rules of Civil Procedure. Mr. Kamuck failed to respond to this letter as well.
Despite allowing several months for completion of discovery, Mr. Kamuck also did not make himself available for the scheduling of his own deposition by the defendants, another rudimentary duty of litigants. (Doc. 78.) Thus, on September 5, 2013, defendants noticed the deposition of Mr. Kamuck for the first time, scheduling the deposition to take place on September 30, 2013, which was also the close of fact discovery pursuant to the Court's June 11, 2013, case management order. (Doc. 91, ¶58.) Shortly before this deposition was scheduled to take place, on September 25, 2013, defense counsel was informed that Mr. Kamuck would not attend this deposition. (Doc. 91, ¶59.) In accordance with Mr. Kamuck's wishes, on October 4, 2013, defendants noticed the deposition of plaintiff for the second time, scheduling the deposition to take place on October 18, 2013. ( Id., ¶61.) On October 16, 2013, Kamuck once again informed counsel for defendants that he would not be attending this deposition as well because of his inability to retain counsel. ( Id., ¶62.) Moreover, no medical records were produced by Mr. Kamuck regarding his alleged medical issues, despite a pending document requests for all medical records. ( Id., ¶60.) Mr. Kamuck also neglected to provide the defense any expert reports, as required by our prior case management order. (Doc. 78.) These failures on Mr. Kamuck's part compelled the defendants to seek an extension of the defendants' own expert report deadlines, (Doc. 78.), a request which as granted by the Court. (Doc.79.) On October 18, 2013, defense counsel also reminded Mr. Kamuck in writing of his obligations under the Federal Rules of Civil Procedure, and notified him that they reserved the right to seek sanctions for his repeated cancellations of his deposition, including precluding Mr. Kamuck from offering certain testimony in opposition to a motion for summary judgment. (Doc. 91, ¶63.)
At no time between June and October of 2013 did Mr. Kamuck provide any explanations to the Court for his on-going failure to cooperate with counsel, comply with his discovery obligations, or meet court ordered deadlines. Finally, on October 25, 2013, we received a communication from Mr. Kamuck, which attributed all of his difficulties to the failure of his former counsel to provide him some unspecified files and materials. (Doc. 80.) We promptly acted upon this matter, scheduling a conference call in this case on November 21, 2013. (Doc. 84.) During this conference, we learned that there was very little in discovery that Mr. Kamuck did not already have from his former counsel. We then strongly stressed to Mr. Kamuck the importance of complying with his discovery obligations, including showing up for his deposition, and advised him that dismissal of his claims was a potential consequence for failure to comply with discovery. (Doc. 91, ¶¶66-7.)
Following this conference, we then set a timetable for the release of any materials to Mr. Kamuck by his former counsel, and scheduled the much delayed deposition of Mr. Kamuck for January 3, 2014. We also directed Mr. Kamuck to cure all of his discovery delinquencies by January 3, 2014. (Id.) Finally, we warned Mr. Kamuck in clear and precise terms of his obligations as a litigant and the consequences which would flow from a failure to fulfill those obligations, stating that: "In closing, we emphasize for the plaintiff that Rule 41(b) of the Federal Rules of Civil Procedure provides that: If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.' The rule thus compels a plaintiff who has initiated a civil action against a defendant to comply with all court orders, and to ensure that the civil action is prosecuted timely. The rule also makes clear that the failure to prosecute an action, or the failure to comply with court orders like the order being issued today, may result in the involuntary dismissal of a lawsuit. Accordingly, the plaintiff is hereby expressly advised that any further failure to comply with case-management deadlines the discovery process, and court orders may result in the dismissal of this action." (Id.)
On November 27, 2013, defendants noticed the deposition of Mr. Kamuck for the third time, scheduling the deposition to take place on January 3, 2014, in order to give the plaintiff the maximum amount of time to respond to defendants' outstanding discovery requests. (Doc. 91, ¶71.) Two weeks later, on December 11, 2013, defendants sent yet another letter to Mr. Kamuck detailing his on-going failure to comply with his outstanding discovery obligations. ( Id., ¶72.)
Despite knowing of the third scheduled deposition for more than a month, on January 2, 2014-one day before the deposition was to take place-Mr. Kamuck caused the defendants to be notified that "the depositions must be cancelled and rescheduled." ( Id., ¶78.) When defense counsel declined to cancel the deposition, they were informed that "Mr. Kamuck will not be attending the deposition tomorrow." ( Id., ¶80.) Thus, Mr. Kamuck has never submitted to a deposition, and more than a year has elapsed since he last refused to be deposed. Moreover, the ostensible reasons for at least some of these delays was that Mr. Kamuck was retaining counsel, ( Id., ¶¶73-78), however, in the ensuing months no attorney has entered an appearance on behalf of the plaintiff despite the ample opportunity we have afforded to Mr. Kamuck throughout this litigation to secure counsel. Thus, the posture of the case has remained precisely where Mr. Kamuck has left it for the past year, with the plaintiff unwilling to proceed with the litigation, and unprepared to support or defend the claims which he has made.
It is against this procedural backdrop that the defendants filed a motion for summary judgment on January 17, 2014. (Doc. 90.) That thoroughly documented motion revealed an absolute paucity of proof on Mr. Kamuck's part supporting his remaining negligence, strict liability and nuisance claims. Thus, the undisputed factual receord filed by the defendants in support of their motion for summary judgment revealed the following:
At the outset, Mr. Kamuck's claims failed as to some of the defendants named in this action because, despite requests from defendants, Mr. Kamuck has not produced any documentation or evidence demonstrating that Shell GP had any involvement in the activities which form the basis of this action, and has not produced any evidence contradicting defendants' assertion that another named defendant, Shell LP, no longer exists as a legal entity. (Doc. 91, ¶¶6-8.)
Furthermore, despite years of litigation Mr. Kamuck has produced no evidence to support many of the allegations which he initially made in this case. For example, Mr. Kamuck has never identified the time, date, location, or extent any toxic chemical release that he alleges took place on any part of the Kamuck Property or adjoining properties. Neither has Mr. Kamuck identified any toxic substances that were allegedly released on his property. ( Id., ¶15.) Mr. Kamuck has also failed to produce any evidence identifying specific environmental contamination, fire, explosion or any other hydro-carbon production mishap that affected his well-being or property. (Id.) Nor has he presented any competent proof supporting his nuisance claims relating to vehicle traffic and the alleged spraying of toxic chemicals on the roadway adjoining his land. (Id.)
In fact, the plaintiff's own soil and water testing revealed the presence of no harmful contaminants on Mr. Kamuck's property or in his drinking water. ( Id., ¶¶16-28.) Further, Mr. Kamuck has proffered no timely, competent expert reports attesting to a causal connection between hydro-carbon production and injuries that Mr. Kamuck has claimed to either his person or his property. (Id.) Nor has Mr. Kamuck tendered any evidence regarding any loss of property value, such as independent appraisals of the Kamuck Property, as a result of this hydro-carbon extraction on adjoining lands and Mr. Kamuck has not presented any evidence that he has had to spend money to remedy any property damage to the Kamuck Property suffered as a result of defendants' activities. (Id.)
Likewise, Mr. Kamuck's private nuisance claims remain factually unsupported. These claims were based upon the traffic levels on the road adjacent to Kamuck's property, but Kamuck presented no expert testimony or evidence regarding "proof of the level, of the illegal level, and of the damages" associated with the noise from the use of Mudge Road, despite representations to the Court on October 24, 2011, that such evidence existed and was available. (Doc. 91, ¶40.)
Finally, with respect to Kamuck's strict liability claim, which entails a legal determination of the societal risks and rewards of hydro-carbon extraction activities, the defendants presented a thoroughly documented factual record in their summary judgment motion. That record revealed that there have been hundreds of wells drilled in Tioga County, which have yielded millions of dollars in extraction fees for the county. ( Id., ¶85-86.) The county has also benefitted through the payment of impact fee allowances. ( Id., ¶¶87-89.) Furthermore, numerous scientific and legislative studies have concluded that natural gas extraction is not an abnormally dangerous activity of the type that would give rise to strict tort liability. ( Id., ¶¶93-116.) In addition, these government and private studies have documented the positive economic impact of this activity, both in terms of billions of dollars in economic activity and tens of thousands of new jobs in the communities affected by this hydro-carbon extraction. (Id.) None of these matters have been addressed or rebutted in any way by Mr. Kamuck.
Presented with this comprehensively documented dispositive motion Mr. Kamuck initially sought familiar refuge in delay, (Doc 97.), a request which we granted. (Doc. 99.) At the time that we granted this request, though, we notified Mr. Kamuck of the legal consequences which could flow from his failure to timely and fully respond to defense motions, advising him that Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions, and instructing him that it is now well-settled that "Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). Therefore, a failure to comply with this basic responsibility could result in the motion being deemed unopposed and granted. (Doc. 99.)
When Mr. Kamuck did respond to this dispositive motion, his response was not responsive to many of the issues raised by that motion. (Doc. 100.) Thus, Mr. Kamuck did not submit a counter-statement of facts opposing this summary judgment motion, as required by Local Rule 56.1. Nor did he advance any legal arguments through a brief in opposition to this motion, as also required under the Rules of this Court. Instead, Mr. Kamuck's response simply repeated what were now familiar refrains in this litigation, coupling complaints about past counsel with promises of new counsel, and an insistence that the defendants should settle his case on terms the plaintiff deemed favorable. (Id.)
This response was also procedurally flawed in another fundamental respect. In an apparent effort to create some sort of factual dispute, Mr. Kamuck attached three documents styled as "affidavits" to his pleading. (Id.) However, a cursory review of these documents revealed that none of them are affidavits executed under penalty of perjury, a fact which rendered the documents worthless from an evidentiary stand point since "[t]he failure to acknowledge the penalty of perjury prevents the court from considering the affidavits' contents for purposes of summary judgment. Tukesbrey v. Midwest Transit, Inc., 822 F.Supp. 1192, 1198 (W.D.Pa.1993) (non-conforming, unsworn materials to be stricken); see also Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1305-06 (5th Cir.1988) (non-conforming, unsworn affidavits treated as incompetent to raise a fact issue precluding summary judgment')." United States v. Branella, 972 F.Supp. 294, 300 (D.N.J. 1997).
The defendants promptly identified this basic deficiency in Mr. Kamuck's response and moved to strike these non-evidentiary materials. (Doc. 103.) Presented with this legal challenge, Mr. Kamuck turned to what had, sadly, become another familiar refuge for this litigant, passive inaction. Indeed, in the intervening months, Mr. Kamuck has never elected to respond to this motion in any fashion, a failure which now permits us to deem the motion to be unopposed.
Mindful of the fact that Mr. Kamuck's pleadings had insisted that he was actively securing counsel, we have allowed an extended period of time to pass since these motions were filed in order to afford Mr. Kamuck every opportunity to fulfill the commitments he had previously made to this court to obtain counsel and actively pursue these claims. Regrettably, Mr. Kamuck's actions have not matched his statements, and despite being afforded many months by the court to take further action in this case, he has not secured counsel, further responded to these motions, or taken any steps to actively litigate the claims which he has brought.
It is against this stark, sad backdrop of inaction, and non-compliance with court requirements, that we now consider these dispositive motions. For the reasons set forth below, the ...