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Palmer v. Sun Coast Contracting Services, Inc.

United States District Court, S.D. Mississippi, Southern Division

July 20, 2017




         BEFORE THE COURT is Defendant Shale Support Services, LLC's Motion [236] for Summary Judgment. This Motion is fully briefed. Having considered the Motion, Plaintiffs' Response, related pleadings, the record, and relevant legal authority, and because Plaintiffs have not carried their summary judgment burden, the Court is of the opinion that Defendant Shale Support Services, LLC's Motion [236] should be granted. Plaintiffs' claims against Shale Support Services, LLC, should be dismissed.

         I. BACKGROUND

         A. Facts and Procedural History

         Plaintiffs Jeffery Chad Palmer, Brenda and Mark Rody, Donald and Jennifer Juan, David and Karen Taporco, Kimberly and Milton J. Jacobs, Jr., Mary and Nicholas Sciambra, and Anthony Pressley (“Plaintiffs”) are owners of houses in the Ravenwood Subdivision (“Ravenwood”) located in an “unincorporated section of Pearl River County, Mississippi (“PRC”)[, ] just south of the city limits of Picayune, Mississippi.” Am. Compl. [68] at 2, 6. Plaintiffs allege that at the time they purchased their houses in Ravenwood, the land comprising Ravenwood together with a larger parcel of land served as a watershed for the Alligator Branch waterway and allowed the overflow of that waterway to move “east and west away from” Ravenwood. Id. at 6-7.

         Plaintiffs contend that beginning on February 23, 2012, their houses began “vibrating violently” when Defendants began driving pilings into the ground on a section of land contained within the watershed. Id. at 8-9. Plaintiffs complained to the Pearl River County Board of Supervisors (the “Board”) and the contractors but the construction/vibrations continued. Id. Plaintiffs also questioned the Board about the dump trucks that were coming and going from the property. Id.

         The Board allegedly did not respond to Plaintiffs' complaints or inquiries until at a meeting held on March 5, 2012, when the Board announced that Defendant Alliance Consulting Group, LLC (“Alliance”), had previously been granted permission to construct a “frac sand plant” (“the Plant”) on a section of land contained within the watershed that Alliance had leased from Defendant AHG Solutions, LLC. Id. at 6, 8. Later in 2015, “a multi-track railroad spur” was constructed at the Plant. Linfield, Hunter & Junius, Inc., Mem. Summ. J. [233] at 3.

         On February 5, 2015, Plaintiffs filed a Complaint [1] in this Court against a number of Defendants, alleging they had suffered damages to their houses and quality of life due to the construction and operation of the Plant and the associated rail spur. Plaintiffs filed an Amended Complaint on February 4, 2016, naming as Defendants Sun Coast Contracting Services, LLC; Integrated Pro Services, LLC; Ranger Contracting, LLC; H&H Trucking, LLC; AHG Solutions, LLC; Linfield, Hunter & Junius, Inc.; Shale Support Services, LLC; Drying Facility Asset Holdings, LLC; and ELOS Environmental, LLC.[1] Am. Compl. [68] at 2-4.

         Plaintiffs allege that vibrations from pile-driving during construction caused “obvious and visible cracks in the brick veneer of their homes, cracks in the stucco, separations of the walls in comers (sic) and around doors and windows, windows that would no longer open, and cracks” in the foundations of the houses; that development of the land increased flooding in their subdivision; that the Plant produces continuous loud noises as it runs throughout the night; that the Plant emits a “nauseating foul smell;” and that dust from the Plant's operations settles over their property. Id. at 9-13. The Amended Complaint asserts claims against Defendants in four separate counts, specifically for: (1) Negligence; (2) Trespass; (3) Private Nuisance; and (4) a Declaratory Ruling. Id. at 11-13.

         B. The Plant

         Defendant Alliance constructed the Plant in 2012. Drying Facility Asset Holdings, LLC, Mem. in Opp'n [235] at 1-7. It is undisputed that in January 2013, Alliance contracted with Defendant Shale Support Services, LLC (“Shale”) to operate the Plant. Decl. Kevin Bowen, Ex. “A” [236-1] at 2. On October 3, 2013, Alliance was forced into bankruptcy and the Plant became an asset of the bankruptcy estate. Id. The Plant was shut down from October 2013 until December 2013, when the Chapter 11 Bankruptcy Trustee retained Shale to operate it. Id. at 3.

         On August 22, 2014, the Bankruptcy Court entered its Order confirming Alliance's Second Amended Chapter 11 Plan and authorizing the sale of Alliance's assets, including the Plant, free and clear of all liabilities to Defendant Drying Facility Asset Holdings, LLC (“Drying Facility”). Id. at 5-6; Bankruptcy Order, Ex. “S” [234-19] at 82, 104 (confirming plan). Drying Facility closed on its purchase of Alliance's assets, including the Plant on October 6, 2014, and the Bankruptcy Court entered its “Notice of Effective Date of the Second Amended Plan of Reorganization, ” finding that the “Effective Date of the Plan is October 6, 2014.” Drying Facility Mem. in Opp'n [235] at 6; Bankruptcy Order, Ex. “U” [234-21] at 1.

         C. Shale's Motion for Summary Judgment [236]

         On March 20, 2017, Shale filed a Motion for Summary Judgment [236]. Shale contends that it never “owned, designed or constructed any part of the Plant or rail spur” and only operated the Plant between January 2013 and October 6, 2014, with the exception of the time period between October and December 2013 during which the Plant was not operating. Mem. in Opp'n [237] at 1-2; Dec. Kevin Bowen, Ex. “A” [236-1] at 1-3. Shale asserts that it is entitled to summary judgment on all of Plaintiffs' claims because: (1) as a matter of law Shale cannot be liable for Plaintiffs' claims for “damages relating to the rail spur, or ownership design, or construction of the Plant, ” Mem. in Opp'n [237] at 1-3; and (2) Plaintiffs' claims for ...

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