210 F. Supp. 3d 1284
N.D. Okla.2016Background
- Plaintiffs (Bristow First Assembly of God and members of its pastor’s family) own Church property in Creek County, Oklahoma and allege long‑term contamination from a former on‑site refinery/tank farm.
- Plaintiffs sued multiple defendants in state court for negligence, nuisance, trespass, strict liability, fraud, constructive fraud, and a declaratory/indemnity/contribution claim related to prior owners and operators.
- Kinder Morgan removed the case to federal court asserting diversity jurisdiction and arguing several in‑state, prior‑owner defendants were fraudulently joined.
- BP p.l.c. moved to dismiss under Fed. R. Civ. P. 12(b)(5) (insufficient service) and 12(b)(6) (failure to state claims), challenging several substantive claims as insufficiently pleaded.
- The court analyzed fraudulent joinder for two asserted claims (declaratory/indemnity/contribution and constructive fraud), denied remand, found the non‑operational defendants were fraudulently joined, and resolved BP’s motions in part: service denial; dismissal without prejudice of negligence per se, private nuisance, strict liability, and fraud claims (with leave to amend some).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraudulent joinder / remand | Non‑operational (in‑state) defendants were properly joined on claims including declaratory/indemnity/contribution and constructive fraud | Kinder Morgan: non‑operational defendants cannot be liable on those claims; they were fraudulently joined so their citizenship is disregarded for diversity | Court: Non‑operational defendants fraudulently joined as to declaratory/indemnity/contribution and constructive fraud; remand denied |
| Declaratory judgment / indemnity / contribution (as pleaded) | Plaintiffs seek declaration that prior owners must indemnify Plaintiffs if Plaintiffs are later held liable | Defendants: claim is contingent/speculative and §1651 bars declaratory determinations of tort liability | Court: Claim barred as advisory under Okla. Stat. tit. 12 §1651; no possibility of recovery against non‑operational defendants |
| Constructive fraud (for joinder) | Non‑operational defendants failed to disclose contamination to successors | Kinder Morgan: plaintiffs plead no facts showing duty, knowledge, misrepresentation, or reliance by predecessor owners | Court: Plaintiffs alleged only conclusory allegations; no factual showing of duty or reliance; claim fails for joinder purposes |
| Service of process (12(b)(5)) | Plaintiffs served entities they reasonably believed were BP’s U.S. agents based on BP’s annual report listing “BP America, Inc.” | BP: those entities were not designated service agents; service insufficient | Court: Substantial compliance found; service motion denied (sufficient probability of notice) |
| Negligence per se (12(b)(6)) | Plaintiffs allege violations of state statutes/regulations causing harm | BP: plaintiffs do not identify any specific statute/regulation allegedly violated | Court: Dismissed without prejudice for failure to plead the specific statutory basis; leave to amend granted |
| Private nuisance (successor landowner) | Plaintiffs claim private nuisance from contamination pre‑dating their ownership | BP: successor landowners cannot generally maintain private nuisance for pre‑existing conditions | Court: Dismissed; successor landowner private nuisance claim not plausibly pleaded |
| Strict liability (ultrahazardous activity) | Plaintiffs assert strict liability for operations and abandonment causing contamination | BP: allegations show negligent conduct, not inherently ultrahazardous activity immune to care | Court: Dismissed without prejudice; plaintiffs failed to plead ultrahazardous activity (may amend) |
| Fraud (Rule 9(b)) | Plaintiffs allege operational defendants misrepresented compliance and concealed contamination | BP: fraud not pled with particularity (time, place, speaker, content) | Court: Fraud claim dismissed for failure to satisfy Rule 9(b); leave to amend granted |
Key Cases Cited
- Dutcher v. Matheson, 733 F.3d 980 (10th Cir.) (fraudulent joinder burden and standards)
- Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 242 (5th Cir.) (no possibility of recovery standard for fraudulent joinder)
- Smoot v. Chicago, R.I. & P.R. Co., 378 F.2d 879 (10th Cir.) (piercing the pleadings; complete certainty standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. Supreme Court) (plausibility pleading standard)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. Supreme Court) (pleading must be plausible)
- Moore v. Texaco, Inc., 244 F.3d 1229 (10th Cir.) (successor landowner private nuisance discussion)
- Koch v. Koch Indus., Inc., 203 F.3d 1202 (10th Cir.) (Rule 9(b) specificity for fraud)
- Martinez v. Angel Exploration, LLC, 798 F.3d 968 (10th Cir.) (elements of negligence under Oklahoma law)