MEMORANDUM OPINION AND ORDER
SIDNEY FITZWATER, District Judge
In this case filed originally under the court's federal question jurisdiction, defendant's motion to dismiss requires the court to decide whether to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) over plaintiff's remaining claim under the Texas Tort Claims Act ("TTCA"), Tex. Civ. Prac. Rem. Code Ann. §§ 101.001-.109 (Vernon 2005). For the reasons that follow, the court declines to exercise supplemental jurisdiction and dismisses the claim without prejudice.
I
Because this case is the subject of several prior opinions of this court and of the Fifth Circuit, and considering the question presented, the court need not recount the background facts and procedural history at length. Plaintiff Daniel F. Rhodes ("Rhodes") was employed by defendant City of Arlington ("the City") as a Crime Scene Investigator in the City's Police Department ("APD"). His job duties included teaching classes and instructing new officers on crime scene investigation techniques, including fingerprinting techniques. Tibor Prince ("Prince") participated in one of these classes. As a part of the class, Prince lifted Rhodes's fingerprints from a coffee bottle and mounted them on an index card. Instead of turning in or destroying the fingerprint card, Prince placed it in his fingerprint case.
Rhodes v. City of Arlington, 2010 WL 2008450 (5th Cir. May 20, 2010) (per curiam); Rhodes v. Prince, 360 Fed. Appx. 555 (5th Cir. 2010) (per curiam); Rhodes v. Prince, 273 Fed. Appx. 328 (5th Cir. 2008) (per curiam); Rhodes v. Prince, 215 Fed. Appx. 329 (5th Cir. 2007) (per curiam).
For purposes of deciding this motion, the court will view favorably to Rhodes the factual allegations on which he relies to establish the merits of his case.
Prince and the other individual defendants have been dismissed from the case. The court will not identify them further as former defendants.
Subsequently, APD officers, including Prince, investigated a burglary at an apartment complex. Prince, under the supervision of William Harris ("Harris"), obtained several sets of fingerprints from one of the apartments and placed the fingerprint cards in his fingerprint case. Prince in turn deposited the fingerprint cards into an APD evidence drop box. An investigator in the Crime Scene Unit later identified the fingerprints on one of the cards — i.e., apparently from the apartment complex crime scene — as belonging to Rhodes.
Sergeant Gary Krohn ("Krohn") confronted Rhodes and told him to attend a meeting with Lieutenant Jerry D. Carroll ("Carroll") and Sergeant James F. Roach, III ("Roach"). During the meeting, Roach and Carroll accused Rhodes of the burglary and advised him that a criminal investigation was pending against him. Carroll initiated an internal affairs misconduct investigation against Rhodes, who was placed on paid administrative leave. Rhodes was questioned and fingerprinted, but Roach informed Rhodes that he did not believe that Rhodes had committed the burglary. Later, two APD Assistant Chiefs of Police indicated to Rhodes that Krohn and Roach had stated that the fingerprints Prince said he obtained from the apartment could not have been found there. The internal affairs investigation eventually determined that Prince did not obtain Rhodes's fingerprints from the scene of the burglary but instead obtained them during the fingerprinting class taught by Rhodes.
Rhodes sued the City, Prince, Harris, Roach, Krohn, and Carroll. Following decisions of the Fifth Circuit and of this court, the only cause of action that remains is Rhodes's claim against the City under the TTCA. Rhodes avers that his damages were caused by the misuse of tangible property: the fingerprint card containing his fingerprints.
The City moves to dismiss under Fed.R.Civ.P. 12(b)(1), contending that the court lacks subject matter jurisdiction because subject matter jurisdiction is based on federal question jurisdiction and only Rhodes's state-law TTCA claim remains against the City. The City also urges the court to dismiss Rhodes's remaining TTCA claim under 28 U.S.C. § 1367(c), arguing that the claim presents a complex issue of state law and that requiring Rhodes to refile the case in state court would be neither unfair nor inconvenient.
The court has previously denied several motions seeking dismissal of Rhodes's claims against the City.
It is undisputed that the court lacks diversity jurisdiction over Rhodes's remaining state-law claim.
Rhodes opposes the motion. He asserts that the court has pendent jurisdiction over the state-law claim; that the claim presents neither a novel nor complex issue of state law; that the City's motion is untimely; and that the City waived the right to move for dismissal under Rule 12(b)(1) when it sought to dismiss the state-law claim at an earlier procedural stage. Rhodes points to the resources already expended during five years of litigation, contending that a dismissal would not serve the ends of judicial economy, fairness, or convenience.
II
The court considers first whether the City's jurisdictional challenge is untimely or has been waived.
"It is incumbent on all federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking." Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). The court can consider a challenge based on subject matter jurisdiction at any point in the litigation. See Rule 12(h)(3).
Moreover, although as the court explains next, it has subject matter jurisdiction over Rhodes's state-law claim despite the dismissal of his federal claims, the City is not precluded from awaiting dismissal of the federal claims before moving for dismissal of Rhodes's remaining state-law claim. See, e.g., Guzzino v. Felterman, 191 F.3d 588, 593-94 (5th Cir. 1999) (noting that plaintiffs had first moved to remand state-law claims after two years of active litigation and following elimination of federal claims from consolidated cases). Therefore, the City's jurisdictional challenge is neither untimely nor has it been waived.
III
The court considers next whether it lacks subject matter jurisdiction.
Contrary to the City's assertions, the court does not lack subject matter jurisdiction. When Rhodes filed this lawsuit, he pleaded claims under 42 U.S.C. § 1983 as well as pendent state-law claims. The court has supplemental jurisdiction over the TTCA claim under 28 U.S.C. § 1367(a) because it is "so related to the original claims that [it] form[s] part of the same case or controversy, or in other words, that [it] `derive[s] from a common nucleus of operative fact.'" Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008) (alterations added) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)).
Once supplemental jurisdiction is acquired, the court in its discretion may decline to exercise supplemental jurisdiction. See Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993). Under § 1367(c):
One Fifth Circuit case mentions in passing that pendent jurisdiction dismissals are dismissals based on "lack of subject matter jurisdiction." See Parker Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 586 (5th Cir. 1992) (interpreting La Porte Constr. Co. v. Bayshore Nat'l Bank, 805 F.2d 1254, 1257 (5th Cir. 1986)). This is probably inadvertent. The La Porte panel did not reach this conclusion, and Parker Parsley itself reviewed the district court's dismissal for abuse of discretion before deciding to uphold it. And recent case law from the Supreme Court and the Fifth Circuit confirms that a court retains subject matter jurisdiction over claims that fall within its supplemental jurisdiction. See Carlsbad Tech., Inc. v. HIF Bio, Inc., ___ U.S. ___, 129 S. Ct. 1862, 1867 (2009) (holding that when district court remands to state court after declining to exercise supplemental jurisdiction, remand order is not based on lack of subject matter jurisdiction); Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Parish, Fed. Appx., 2010 WL 1439277, at *2 (5th Cir. Apr. 12, 2010) (per curiam) ("The subsequent dismissal of all federal claims from Knatt's suit did not divest the district court of supplemental jurisdiction over the remaining state-law claims.").
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if —
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
Both parties agree that Rhodes's claims that invoked this court's federal-question jurisdiction have been dismissed. Therefore, the court has the discretion under § 1367(c)(3) to decline to exercise supplemental jurisdiction over Rhodes's remaining TTCA claim.
The court discusses below that Rhodes's TTCA claim presents novel and complex issue of Texas law. See infra § IV(B)(4). The court is not invoking § 1367(c)(1), however, as the basis for its decision to decline to exercise supplemental jurisdiction.
IV
The court must now decide whether to exercise supplemental jurisdiction.
A
A district court generally dismisses pendent state claims when the federal claims are dismissed. See Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989); see also, e.g., Brim v. ExxonMobil Pipeline Co., 213 Fed. Appx. 303, 305 (5th Cir. 2007) (per curiam) ("As a general rule, a federal court should decline to exercise jurisdiction over pendent state claims when all federal claims are disposed of prior to trial." (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)); Parker Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992)). The Supreme Court disfavors a bright-line approach, however, requiring the court to "consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims." Carnegie-Mellon Univ., 484 U.S. at 350 (applying the four factors introduced in Gibbs, 383 U.S. at 726-27). No single factor is dispositive. See Parker Parsley, 972 F.2d at 587). "The Gibbs test is a flexible one, under which courts should conduct a fact-specific inquiry, considering the totality of circumstances of each case." Guzzino, 191 F.3d at 594-95.
B 1
The first factor — judicial economy — requires the court to assess whether resources would be saved if the court maintains jurisdiction over the case.
"[W]hen the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice." Carnegie-Mellon, 484 U.S. at 350 (citing Gibbs, 383 U.S. at 726-27). It is not clear, however, what counts as an "early stage" in the litigation. See Parker Parsley, 972 F.2d at 586 (noting that earlier case law had left the phrase undefined). In determining whether the district court abused its discretion, the Fifth Circuit has considered the amount of time elapsed in the litigation, the length of time remaining until trial, and the amount of discovery completed. Compare Newport Ltd. v. Sears, Roebuck Co., 941 F.2d 302, 307 (5th Cir. 1991) (finding abuse of discretion where court dismissed case on eve of trial after four years of litigation, thousands of pages of record and discovery, and preparation of pretrial order exceeding 200 pages), and Doddy v. Oxy USA, Inc., 101 F.3d 448, 456 (5th Cir. 1996) (finding abuse of discretion where case was dismissed less than one month before trial after two years of litigation, over 300 pleadings, and extensive discovery taken under federal rules) with Parker Parsley, 972 F.2d at 587 (finding abuse of discretion where case was retained after nine months of litigation and a few weeks remained before trial but the parties were "not ready for trial"), Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Parish, ___ Fed. Appx. ___, 2010 WL 1439277, at *3 (5th Cir. Apr. 12, 2010) (per curiam) (finding no abuse of discretion where district court dismissed case based on complexity of state-law issues, even after over 7,000 pages of discovery and 29 depositions), and Brim, 213 Fed. Appx. at 306 (affirming dismissal where, at the time of summary judgment, parties were approximately one year into the litigation, two months remained until trial, and, although the parties had completed some discovery, two discovery disputes had not been settled by the court, and parties could use any trial preparation, legal research, and discovery in the state court proceedings).
Today's case falls somewhere in between. It is set for trial in two months, and the case will be five years old by the time of trial. In terms of time elapsed, the case resembles Newport, but that comparison is somewhat deceptive. Substantial segments of the five-year period were devoted to interlocutory appeals that in part resulted in eliminating Rhodes's claims against all parties except the City and all claims except his TTCA cause of action. And the parties appear to have taken relatively little discovery, in contrast to Newport and Doddy. A few depositions were taken beginning in late 2008, and there had been no major discovery disputes to resolve. In these respects, this case more closely resembles Brim.
The number of years that the litigation has been pending may be important in many, if not most, cases, but this is probably due to what the length of a case tends to demonstrate. As the Knatt panel explained, "`the amount of judicial resources that the case has consumed' is relevant to our analysis, but that accounting is `most important . . . as an indication of the familiarity of the forum with the case and its ability to resolve the dispute efficiently.'" Knatt, 2010 WL 1439277, at *3 (quoting Parker Parsley, 972 F.2d at 587). But in the present case, the duration of the litigation at a macro level is a skewed indicator of the relative competence of the federal courts applying Texas law over Texas courts applying their own law. This court has devoted substantial judicial resources to resolving federal-law issues that do not translate into familiarity with the contested issues in the TTCA claim. Cf. id. at *3 (upholding dismissal where "the case — whittled to the few remaining state claims — has `only recently re-started' and `trial is not imminent'"). As such, this case is distinguishable from Ingram Corp. v. J. Ray McDermott Co., where the disputed issues relating to the pendent state claims had been "fully litigated" and "extensively briefed" during the court's consideration of related federal claims. See Ingram Corp. v. J. Ray McDermott Co., 698 F.2d 1295, 1320 n. 28 (5th Cir. 1983).
On the other hand, the parties appear to be ready for trial, unlike the parties in Parker Parsley. Neither party has moved for a continuance. According to a recent joint status report, the parties anticipate that the trial will take only two days. The court already has some familiarity with the state-law issues, having recently ruled on a motion for summary judgment. Were it not for the novel state-law issues implicated in Rhodes's remaining TTCA claim, the court would be better situated than a state court to resolve the case efficiently. The court therefore concludes that the judicial economy factor weighs in favor of retaining jurisdiction.
Ultimately, for reasons the court will explain infra at § IV(B)(4), the potentially novel or complex state-law issues raised in the TTCA claim counsel against exercising supplemental jurisdiction. Not only would state courts have greater competence than federal courts in addressing the state-law issues, but federalism and comity considerations strongly favor that a state court rule on state matters, especially where the outcome is likely to affect an unsettled area of law.
2
The second factor the court considers is convenience. In considering this factor, courts have considered whether the geographical location or the refiling of the case would create undue hardship. See Brim, 213 Fed. Appx. at 306 (upholding dismissal where majority of witnesses and plaintiffs lived near same state court); Guzzino, 191 F.3d at 595 (upholding remand where "the parties' work product could be taken, with little loss, to the state litigation").
Here, the location of the state court should not cause undue hardship. Rhodes resides in Arlington, which is located in Tarrant County, and the events giving rise to the TTCA claim also occurred in Tarrant County.
Nor would filing the case in state court cause undue hardship. Any dismissal or remand will inevitably come with some expense of time and money as parties refile papers and the state court reprocesses them, see Carnegie-Mellon, 484 U.S. at 353, but the case does not have to begin again from scratch. Should the case be dismissed, the parties are free to reuse their work product and previously discovered information to prepare for litigation in state court. See Guzzino, 191 F.3d at 595. Given the strong comity reasons for dismissal, and the parties' ability to mitigate hardship, the convenience factor favors dismissing the TTCA claim.
See infra § IV(B)(4).
3
The court considers third the fairness factor. In weighing this factor, courts have considered whether a dismissal would foreclose all relief, see Carnegie-Mellon, 484 U.S. at 351-52 (considering whether state statutes of limitations would bar refiling of dismissed claim), whether dismissal or retention would present any danger of duplicative or conflicting rulings, see Guzzino, 191 F.3d at 595, or whether dismissal would allow parties to relitigate matters that had already been settled by the federal court, see Guidry v. Bank of LaPlace, 954 F.2d 278, 286 (5th Cir. 1992).
None of these concerns is likely present here. Section 1367(d) tolls the period of limitations while a pendent claim is pending in federal court and for a period of 30 days after dismissal. The danger of duplicative or conflicting rulings is low, whether the case remains in this court or is litigated in state court, since there is now only one defendant and one remaining claim. Rhodes expresses concern that the City will "have a second opportunity to assert the same arguments in a state court with a different judge," P. Br. 8, amounting to a second opportunity to test its theories. But given the rulings and judgment entered in this court or in the Fifth Circuit and the nature of Rhodes's remaining claim against the City, the prospect of expanded litigation in state court appears to be speculative or slight. The court therefore holds that the fairness factor warrants dismissing the remaining TTCA claim.
The court dismissed the actions against the individual defendants by Rule 54(b) final judgment.
Moreover, as the Fifth Circuit noted in Parker Parsley, not all discovery is admissible, and the fact that a state court may decide the evidentiary issue may even work in favor of dismissal, since "the state court is a `surer-footed' arbiter of the relevance of pieces of evidence for state law claims." Parker Parsley, 972 F.2d at 588.
4
The fourth factor — comity — provides the most compelling reason to dismiss Rhodes's remaining claim. "Once the main action has reached settlement prior to trial, there is generally little that can be gained in the way of judicial efficiency and economy by continuing to adjudicate ancillary state-law claims, and considerations of comity and federalism militate in favor of dismissal." W.R. Grace Co. v. Cont'l Cas. Co., 896 F.2d 865, 872 (5th Cir. 1990). The supplemental jurisdiction statute also specifically permits this court to decline to exercise supplemental jurisdiction where "the claim raises a novel or complex issue of state law." 28 U.S.C. § 1367(c)(1).
Rhodes's remaining TTCA claim presents particularly complex and novel issues of Texas law. He accuses the City of negligently allowing its employees to misuse his fingerprint card to launch false criminal accusations against him. Under § 101.021(2) of the TTCA, the City's governmental immunity defense turns on whether one traces the cause of Rhodes's injury to "tangible personal property" (i.e., the fingerprint card itself) or intangible information contained in the property (i.e., the fingerprints). Texas appellate courts have commented on the difficulty of determining what constitutes "tangible personal property." As one court of appeals recently observed:
Given the plethora of opinions addressing whether a claim involves the use of tangible personal property, and given that a case involving that issue has been pending before the Texas Supreme Court for approximately three years, it is clear that determining whether an injury resulted from the use of tangible personal property, even with existing legal precedent, is not simple or straightforward.
Univ. of Tex. Health Sci. Ctr. v. Webber-Eells, ___ S.W.3d ___,
2010 WL 2601664, at *1 (Tex. App. June 30, 2010, no pet. h.) (citing
Franka v. Velasquez, 216 S.W.3d 409 (Tex. App. 2006, pet. granted)). So far as the court is aware, no Texas appellate court has addressed the question whether to treat fingerprint cards as tangible personal property or as information contained on tangible personal property. Most applications of § 101.021(2) involve cases where the injury is primarily physical. Unless the court accepts Rhodes's interpretation of the TTCA and the jury finds against him on the facts (which would moot the matter), the court will be
required to decide a novel and complex issue of Texas law of a type that has confounded Texas courts.
Rhodes argues that relegating the case to state court would run counter to the interests of comity because this court has already ruled on the state-law claims. Although the court has in fact given some consideration to the merits of the case in response to summary judgment and dismissal motions, it has not reached a final decision on the merits in this remaining claim. Given that the case involves an unsettled area of state law, this court, by retaining jurisdiction and proceeding to a final judgment on the merits, risks reaching the wrong result. See Parker Parsley, 972 F.2d at 588-89 ("The federal courts are courts of limited jurisdiction, and often are not as well equipped for determinations of state law as are state courts."); see also id. at 589 ("Federal courts are not the authorized expositors of state law; there is no mechanism by which their errors in such matters can be corrected on appeal by state courts." (citations omitted)). And if this question is to be resolved, comity counsels that it be determined by Texas state courts, not federal courts — no matter how conscientious — attempting to divine Texas law.
5
Having considered the factors together and the totality of the circumstances of this case, the court concludes that it should decline to exercise supplemental jurisdiction over Rhodes's remaining state-law TTCA claim.
* * *
For the foregoing reasons, the court concludes that it has subject matter jurisdiction, but, for the reasons explained, it declines to exercise supplemental jurisdiction over Rhodes's remaining state-law claim under the TTCA. The court therefore grants the City's July 12, 2010 Rule 12(b)(1) motion to dismiss to the extent that it dismisses Rhodes's TTCA claim without prejudice and enters a final judgment today. Rhodes and the City shall each bear his or its respective taxable costs of court.
SO ORDERED.
September 8, 2010.
Because we find that the trial court did not abuse its discretion by denying Eagle leave to amend its petition pursuant to La.C.C.P. art. 934, Acme's exceptions raised with this Court are moot.
For the above mentioned reasons, we find that the trial court did not err and affirm.
BONIN, J., Dissents with Reasons.
BONIN, J., Dissents with Reasons.
I respectfully dissent.
The cause of action stated by Eagle, the plaintiff, is that the excepting defendants, whether oil companies or transportation companies, secretly and covertly contaminated immovable property now owned by Eagle with technologically enhanced naturally occurring radioactive materials, or TENORM. See Grefer v. Alpha Technical, 02-1237 (La.App. 4 Cir. 3/31/05), 901 So.2d 1117, rev'd sub nom. Exxon Mobil Corp. v. Grefer, 549 U.S. 1249, 127 S.Ct. 1371, 167 L.Ed.2d 156 (2007); Pollard v. Alpha Technical, Inc., 08-1486 (La.App. 4 Cir. 1/28/10), 31 So.3d 576; also see, generally, James R. Cox, Naturally Occurring Radioactive Materials in the Oil Field: Changing the NORM, 67 Tul. L.R. 1197 (1993). The contamination from these toxic materials did not manifest itself until the Louisiana Department of Environmental Quality, after the sale to Eagle, tested the property and reported the presence of TENORM necessitating remediation of the site. The excepting defendants do not challenge that Eagle has stated a cause of action for the environmental pollution of the land, but through the exception of no right of action challenge whether there is any "right" or "interest" in Eagle instituting the suit. See La.C.C.P. art. 927 A(6).
The sole basis for the challenge is the uncontested fact that Eagle only acquired the immovable property after the contaminating acts, if not effects, of the defendants had discontinued and that the acquisition was without an express reservation of rights, subrogation, or assignment to Eagle from its vendor. See, e.g., Prados v. South Central Bell Telephone Company, 329 So.2d 744 (La. 1975) (on rehearing). The excepting defendants do not contend that the contamination was known or reasonably knowable by Eagle prior to its purchase of the property. Thus, accepting the allegations of the petition as true, the damage from the excepting defendants' delict(s) was sustained after the purchase. See Cole v. Celotex Corporation, 620 So.2d 1154, 1156 (La. 1993).
La.C.C. art. 2315 A provides: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." The damage was caused to Eagle and Eagle most assuredly has a right or interest in bringing this lawsuit to recover its damages.
The majority errs when it relies upon several clearly distinguishable cases to affirm the district court and sustain the exception of no right of action. In Prados v. South Central Bell Telephone Company, supra (concrete buildings), St. Jude Medical Office Bldg. Ltd. Part. v. City Glass and Mirror, Inc., 619 So.2d 529, 530 (La. 1993) (defective windows), and Dorvin Land-Corporation v. Parish of Jefferson, 469 So.2d 1011 (dredging spoil dumped), the damage to the subject properties was sustained by the vendors and was overt and obvious at the time of the sale. Moreover, the majority errs in its reliance upon Prados v. South Central Bell Telephone Company, supra, and LeJeune Bros., Inc. v. Goodrich Petroleum Co., L.L.C, 06-1557 (La.App. 3 Cir. 11/28/07), 981 So.2d 23, both of which "involve[] rights arising under a lease and [are] distinguishable from the instant facts." Hopewell Inc. v. Mobil Oil Company, 00-3280 (La.2/9/01), 784 So.2d 653 (per curiam). In Hopewell the purchaser contended that, through oil and gas operations, hazardous and toxic wastes were deposited in the ground and asserted that the oil company had a duty to restore the property, which duty extended to subsequent landowners. See Hopewell Inc. v. Mobil Oil Company, 33,774 (La.App. 2 Cir. 11/1/00), 770 So.2d 874, 876. The second circuit, like the majority today, concluded that Prados v. South Central Bell Telephone Company requires sustaining the exception of no right of action. But the Louisiana Supreme Court, rejecting that authority and reasoning, reversed the second circuit and reinstated the; trial court's ruling denying the exception of no cause of action. Hopewell, Inc. v. Mobil Oil Company, 00-3280 (La.2/9/01), 784 So.2d 653 (per curiam).
I agree with these cases and with the majority that the purchaser of property cannot at the same time purchase a tort from his vendor, the damage from which tort has already been sustained, and is overt, known or reasonably knowable.
In my view, Eagle has a right of action against the excepting defendants on account of their contaminating its land. The trial court erred when it sustained the exception and dismissed Eagle's suit against them. I would reverse and, therefore, respectfully dissent.
ORDER
Considering the Application for Rehearing filed in the above captioned matter and pursuant to La.Const. Art. V, § 8(B), it is ordered that this matter is set for oral argument on Tuesday, May 11, 2010, at 11:00 a.m.
ON REHEARING GRANTED
(Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
PAUL A. BONIN, Judge.
We granted rehearing in this matter and assigned the rehearing to a five-judge panel constituted pursuant to La.Const. art. V, § 8. Because we conclude that our original decision is in error, we vacate that opinion. Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 09-0298 (La.App. 4 Cir. 2/10/10), 47 So.3d 428, 2010 WL 487238. We decide today that because Eagle Pipe and Supply, Inc. is a party that sustained injury allegedly caused by the exceptors, fn1 the district court erred in granting the exception of no right of action and explain our decision in Part II.
On account of our conclusion that Eagle Pipe has a right of action, we must now for the first time also consider the appeal of the district court's rulings denying the exception of improper venue and the motion to transfer on the grounds of forum non conveniens. Because we find from our review of the record regarding the exception of improper venue that the trial court's ruling was correct and because we find no abuse of discretion in the denial of the motion to transfer, we affirm the district court rulings and explain in greater detail in Part III.
Exceptions of improper venue were brought by Chevron and OXY.
Motions to transfer on forum non conveniens were filed by Exxon, OXY, Shell, Kerr-McGee, Hess, Chevron, Patterson, and Berry.
We finally, but briefly, here consider the exception of no cause of action filed in this court by several of the defendants. See La.C.C.P. arts. 927 A(5) and 928 B (providing in part, "[t]he peremptory exception may be pleaded at any stage of the proceeding prior to submission of the case for a decision"). Because the district court had ruled previously in the judgment before us that Eagle Pipe would be allowed to amend its pleadings to clarify its allegations against these exceptors, we defer a ruling on the exception. See La.C.C.P. arts. 926 A(5), 932 A, and 934. If, on remand, Eagle Pipe does not timely amend its petition or, if timely amended, the amendment does not satisfy the objections of the exceptors either with respect to vagueness or to failure to state a cause of action, the exceptions can be re-urged in the district court.
The exception of no cause of action was filed in this court by Acme. Other transporter-defendants referenced the trial court's action on the exception of no cause of action.
I
Eagle Pipe purchased immovable property in Lafayette Parish for its fair market value on April 22, 1988. Before the sale, the property had been leased to Union Pipe, Inc., which operated a pipe yard for the purpose of buying, cleaning, storing, and selling used oilfield tubing. According to the petition, during the cleaning process, radioactive scale fell from the tubing and was deposited onto the surface of the pipe yard, thereby contaminating the soil. During that period numerous oil companies sold or tendered to Union Pipe used oil field equipment for cleaning and maintenance; this equipment also contained hazardous, toxic, and carcinogenic radioactive materials. Union Pipe's lease had terminated and its activities on the property had ceased by the time of the sale in 1988.
The sellers were Robert Bridges, Patsy Trimble Bridges, and Edmund J. Baudoin, Jr., all of whom are named defendants, but whose interests are not before us on this appeal. Eagle Pipe, it should be noted, suggested to us that post-appeal a realignment of interests may have occurred, but because the facts supporting such suggestion were not considered by the trial court, we denied Eagle Pipe's motion to supplement this record.
The source of the recitation of facts in Part I is the petition, which facts the exceptors did not controvert at the hearing on the exception of no right of action. See La.C.C.P. art. 931. See Cole v. Celotex Corporation, 620 So.2d 1154, 1156(La. 1993).
Some years after the sale and just before this suit was filed in July 2008, as a result of testing by the Louisiana Department of Environmental Quality (LDEQ), Eagle Pipe discovered that the property had been contaminated with technologically enhanced naturally occurring radioactive materials (TE NORM). Not only did LDEQ notify Eagle Pipe of the discovery, but it ordered Eagle Pipe to remediate the property pursuant to the authority of La.R.S. 30:2276. Eagle Pipe brought suit against a number of defendants who are allegedly responsible for the contamination, including numerous oil companies which had sold used equipment to Union Pipe as well as numerous transporters who had delivered the equipment to the property.
For more extensive information about TENORM, see, generally, James R. Cox, Naturally Occurring Radioactive Materials in the Oil Field: Changing the NORM, 67 Tul. L.R. 1197 (1993); Grefer v. Alpha Technical, 02 1237 (La.App. 4 Cir. 8/8/07), 965 So.2d 511. Although the human senses cannot detect its presence, prolonged exposure to TENORM drastically increases the chances of developing certain diseases such as cancer and has devastating effects on plant and animal life. Cleaning TENORM is both expensive and dangerous. One source of TENORM is the mud that collects against the inside of pipes used for extracting oil and natural gas. When these pipes are cleaned, the mud can contaminate the land it falls onto.
The oil company defendants include: Hess Corporation (formerly known as Amerada Hess Corporation); Chevron, U.S.A., Inc.; Texaco, Inc.; Exxon Mobil Corporation; Kerr-McGee Chemical Worldwide, L.L.C.; OXY USA, Inc.; Shell Offshore, Inc.; Shell Oil Company; SWEP1, LP; Stone Oil Company of Baton Rouge: and Berry Petroleum Company.
The transporter defendants included: Intracoastal Tubular Services, Inc.; Walker Trucking, Inc.; Patterson Truck Line, Inc.; Packard Truck Lines, Inc.; Acme Truck Lines, Inc.; Ace Transportation, LLC; Dynasty Transportation, LLC; Venture Transport Logistics, L.L.C.; and Venture Transport Logistics Holdings, L.L.C.
II
The exception of no right of action is peremptory. La.C.C.P. art. 927 A(6). The sole basis for the objection is the uncontested fact that Eagle Pipe only acquired the property after the contaminating acts, if not effects, of the defendants had discontinued and that the acquisition was without an express reservation of rights, subrogation, or assignment to Eagle Pipe from its vendor. See, e.g., Prados v. South Central Bell Telephone Company, 329 So.2d 744 (La. 1975) (on rehearing). The excepting defendants do not contend that the contamination was known or reasonably knowable by Eagle Pipe prior to its purchase of the property. The trial court decided as a matter of law that Eagle Pipe possessed no right of action for contamination of its property because the contamination occurred under a lease prior to purchase, and thus created a personal (as opposed to real) right that the former owners did not expressly assign to Eagle Pipe. The trial court concluded that, because Eagle Pipe did not acquire an expressed subrogation of its vendors' rights against their lessee, Union Pipe, it had no right of action. Because the grant of this exception presents a question of law, we review it de novo. Hornot v. Cardenas, 06-1341, p. 12 (La.App. 4 Cir. 10/3/07), 968 So.2d 789, 798.
A
The exception of no right of action must be granted when the party bringing suit cannot assert a real and actual interest. See La.C.C.P. art. 681 ("[e]xcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts"). The exceptor bears the burden of proof, Carter v. Haygood, 04-0646, p. 8 (La.1/19/05), 892 So.2d 1261, 1267, and may introduce evidence to support or controvert any of the objections pleaded. Indus. CO., Inc. v. Durbin, 02-0665, p. 12 (La.1/28/03), 837 So.2d 1207, 1216, quoting La.C.C.P. art. 931. As we earlier noted, the facts stated in the petition were not controverted in the lower court.
Right of action concerns only whether the plaintiff "belongs to the particular class in whose exclusive favor the law extends the remedy," Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1060, 1095-96, 262 So.2d 328, 333-34 (La. 1972) quoting McMahon, The Exception of No Cause of Action in Louisiana, 9 Tul. L. Rev. 17, 29-30, and does not take into account whether the remedy can be exercised against a particular defendant. Babineaux, 262 So.2d at 334.
The trial court's ruling relies upon a rule announced in Prados, which was followed in Si. Jude Med. Office Bldg. Ltd. P'ship v. City Glass and Mirror, Inc., 619 So.2d 529, 530 (La. 1993). The trial court, and the exceptors here, understand that rule to comprehensively provide that "a purchaser cannot recover from a third party for damage to the property incurred prior to sale." Prados, 329 So.2d at 750. Such a rule would preclude, of course, a right of action on the part of Eagle Pipe. We, however, conclude that these decisions bear closer examination of their facts in order to decide whether they do after all preclude a right of action by Eagle Pipe against the parties before our court.
While there is no question that Eagle Pipe's vendors were the lessors of Union Pipe before the sale, and that Union Pipe's lease terminated prior to the sale, Eagle Pipe's claims against the oil companies and transporters do not arise from Union Pipe's activities as a lessee qua lessee. The explicit holding of Prados on rehearing is "that the present owner has no right to recover damages against the former lessee." Prados, 329 So.2d at 751 (emphasis supplied). But Prados like LeJeune Bros., Inc. v. Goodrich Petroleum Co., L.L.C., 06-1557 (La.App. 3 Cir. 11/28/07), 981 So.2d 23, "involve[] rights arising under a lease and [are] distinguishable from the instant facts." Hopewell, Inc. v. Mobil Oil Company, 00-3280 (La.2/9/01), 784 So.2d 653, 653 (per curiam). In Hopewell the purchaser contended that, through oil and gas operations, hazardous and toxic wastes were deposited in the ground and asserted that the oil company had a duty to restore the property, which duty extended to subsequent landowners. See Hopewell, Inc. v. Mobil Oil Company, 33,-774 (La.App. 2 Cir. 11/1/00), 770 So.2d 874, 876. The second circuit concluded that Prados requires sustaining the exception of no right of action. But the Louisiana Supreme Court, rejecting that authority and reasoning, reversed the second circuit and reinstated the trial court's ruling denying the exception of no right of action. Id.
If Eagle Pipe's cause of action was against Union Pipe for breach of its lease obligations, which had terminated prior to Eagle Pipe's purchase of the property, Prados may well be controlling.
We understand the Supreme Court's decision in Hopewell to make this same important distinction which we now make: that Prados is limited to actions by a subsequent purchaser against a former lessee arising out of the terminated lease. Notably, the cases cited by the defendants to support the application of this rule relied upon by the trial court all involve causes of action arising under leases.
Moreover, the decision in Prados relied upon the rule that "a buyer is presumed to know the overt condition of the property and to take that condition into account in agreeing to the sale price." Prados, 329 So.2d at 751. This is a sound rule, but one not applicable to the facts of this case. First, the TENORM contamination is hidden, not overt. In Prados the lessee had left standing concrete buildings; they surely were not hidden. Likewise, in other decisions relied upon by the trial court and the exceptors, the property's condition was not hidden, including, for example, in St. Jude Medical Office Bldg. Ltd. P'ship v. City Glass and Mirror, Inc., 619 So.2d 529, 530 (La. 1993), which involved defective windows, and Dorvin Land Corporation v. Parish of Jefferson, 469 So.2d 1011 (La.App. 5th Cir. 1985), which involved dumped dredging soil. The damage to the subject properties was sustained by the vendors and was overt and obvious at the time of the sale. Second, Eagle Pipe paid full market value, not a discounted price, because the true condition of the property was not yet discovered or discoverable.
Black's Law Dictionary, defines "overt" as: "Open and observable; not concealed or secret.'' Black's Law Dictionary 1214 (9th ed. 2009).
A purchaser of properly cannot at the same time purchase a tort from his vendor, the damage from which tort has already been sustained, and is overt, known or reasonably know able.
While the rule of law announced in Prados is a sound rule, it is limited to its dispositive facts and we, therefore, conclude that Prados is not controlling in this case which does not involve a lease and does not involve an overt condition of property.
B
The general rule regarding the assertion of a real and actual interest is contained in La.C.C. art. 2315 A: `'Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."` The complex factual background of the current case, involving the subsequent purchase of property with a hidden defect, does not present sufficient reason to depart from the fundamental principles of injury and reparation. Since as early as 1851, the Louisiana Supreme Court understood reparation thus: "reparation must be made to him who suffered the injury." Clark v. Warner, 6 La. Ann. 408, 408 (La. 1851) ("but as to damages actually suffered before the purchase, we know of no other principles governing the case than those referrable to this general provision of the code, that `every act of man that causes damage to another obliges him by whose fault it happened to repair it.' It is a mere corollary, that the reparation must be made to him who suffered the injury"). See also, Bradford v. Richard, 46 La. Ann. 1530, 16 So. 487 (La. 1894) (quoting Clark, supra, at 408).
The injury is not dispelled by a subsequent purchase, and therefore we see no reason why the right to seek remedy for it should be. The injured party should not be precluded from seeking reparation merely because the damage remained hidden long enough for the property to be sold. In such cases, injury is deemed to occur when the damage is, or should have been discovered. See, e.g., Ricks v. Kentwood Oil Co., Inc., 09-0677 (La.App. 1 Cir. 2/23/10), 38 So.3d 363 ("triggering event" for coverage of emotional and mental distress damages was date of discovery, as opposed to date of harmful conduct, where test of well's water indicated presence of toxic substances from non-overt gasoline leak caused by oil company's underground storage unit); Rando v. Top Notch Properties, L.L.C., 03-1800 (La.App. 4 Cir. 6/2/04), 879 So.2d 821 (manifestation rule on trigger of coverage under liability policy applied to claim for structural defects in house resulting from faulty piledriving); Oxner v. Montgomery, 34,727 (La.App. 2 Cir. 8/1/01), 794 So.2d 86 (claim for damage from improper construction of house was triggered when the damage to the house manifested itself, rather than when the negligence occurred); James Pest Cntrol, Inc. v. Scottsdale Ins. Co., 99-1316 (La.App. 5 Cir. 6/27/00), 765 So.2d 485 (the effects of termite infestation did not become "damage" until discovery by homeowners).
Determinations of when the damage "should have been" discovered, including whether Eagle Pipe is a sophisticatcd purchaser such that it should have known about the risk of TENORM contamination in pipe yards, are factual matters and should be addressed by the district court at trial. See, e.g., Nelson Radiology Associates, L.L.C. v. Integrity Medical Systems, Inc., 2008-0443 (La.App. 4 Cir. 7/29/09), 16 So.3d 1197.
Eagle Pipe has lost the use of its land and will incur the cost of remediating the property; its property has clearly been damaged by the depositing of radioactive materials. The oil companies and transporters, if deemed responsible, are therefore obliged to make reparations to "him who suffered the injury." Clark, supra, at 408. As a party "who suffered [an] injury," Eagle Pipe enjoys a right of action.
C
Therefore, applying La.C.C. art. 2315 and the Clark line of cases, we hold that: (1) the manifestation of radioactive contamination allegedly caused by defendants constitutes an injury giving rise to a legitimate cause of action; (2) the previous owners sustained no injury through the sale of the land because they allegedly received full value for their interest as if it were uncontaminated; (3) Eagle Pipe is an injured party because the damage manifested itself after Eagle Pipe's purchase of the land, thus devaluing Eagle Pipe's acquisition and requiring its remediation, and (4) as an injured party, Eagle Pipe is deserving of reparation.
Therefore, for the foregoing reasons, we vacate our previous holding and we reverse the trial court's sustaining of the exception of no right of action.
III
We turn in this Part to a discussion of our decision regarding, first, the exception of improper venue and, second, the motion to transfer on the ground of forum non conveniens. Although some of the exceptors had prevailed in the lower court and the lawsuit as to them had been ordered dismissed, they nonetheless answered Eagle Pipe's appeal to preserve their right to appellate review on the issues of venue and forum non conveniens in this court in the event that the trial court was reversed. See La.C.C.P. art. 2133 A.
A
Chevron and OXY objected that Orleans Parish is a not a "parish where an action may properly be brought [against them] and tried under the rules regulating the subject." La.C.C.P. art. 41. "A foreign corporation . . . licensed to do business in this state shall be brought in the parish where its primary business office is located as designated in its application to do business in the state. . . ." Chevron, a licensed foreign corporation, argues that by letter to the Secretary of State dated July 15, 2008 it changed its principal place of business from Orleans Parish to St. Tammany Parish. Coincidentally, this is the same day on which this lawsuit was filed by Eagle Pipe. "[V]enue is determined at the time that suit is filed." Thompson v. Prudential Property and Casualty Inc. Co., 562 So.2d 34, 35 (La.App. 4th Cir. 1990).
While La.R.S. 12:308 B, the statute concerning changes of principal place of business, registered address, and registered agent, is silent concerning when a change in the location of a principal place of business becomes effective, it does explicitly state that a change of registered address or registered agent becomes effective once it is filed with the Secretary of State. But in Wells v. R.J. Marchand Contractors Specialties, Inc., 94-2156 (La. App. 4 Cir. 5/16/95), 655 So.2d 800, 803, we stated that the "plaintiff is entitled to rely on the information contained in public records which indicated at the time plaintiff filed his suit that the defendant corporation's] principal business establishment was located in Orleans Parish." (emphasis supplied). Chevron's letter was not received by the Secretary of State until July 17, 2008, and it was not recorded until September 2008. According to public records available on July 15, 2008. when Eagle Pipe filed its suit, Chevron's principal place of business was located in Orleans Parish. Therefore, the trial judge was correct in finding that Orleans Parish is a parish of proper venue as to Chevron.
With respect to the objection lodged by OXY. it too was correctly overruled. Eagle Pipe asserts that OXY is jointly liable with Chevron and others for its damages. See La. Civil Code art. 2324 B. Because venue is proper under La.C.C.P. art. 42(4) as to a joint obligor. Orleans Parish is a parish of proper venue as to all joint obligors, including OXY. See La.C.C.P. art. 73 A.
Accordingly, the district court's overruling of the exception for improper venue is affirmed.
B
Chevron, OXY, Exxon, Shell, Kerr-McGee, Hess, Berry, and Patterson contradictorily moved to transfer the law-suit from Orleans Parish to Lafayette Parish "[f]or the convenience of the parties and the witnesses, in the interest of justice . . ." La.C.C.P. art. 123 A. The parties agree that, because the property at issue, the alleged damage, and a plurality of" the defendants are all located in Lafayette Parish, suit could have been properly brought there. But the district court is given great deference in ruling on a motion for forum nov conveniens; the ruling should be affirmed absent an abuse of discretion. Martinez v. Marlow Trading, S.A., 04-0538 (La.App. 4 Cir. 2/2/05), 894 So.2d 1222; Boudreaux v. Able Supply Co., 08-1350 (La.App. 3 Cir. 10/7/09), 19 So.3d 1263.
Ruling on a forum non conveniens claim, a court takes into account the following private interest factors: (1) convenience of the parties and witnesses; (2) access to the sources of proof, as well as viewing of the premises if appropriate; (3) the cost of obtaining attendance of witnesses; and (4) advantages and obstacles to a fair trial. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Martinez, supra, at 1226. Accordingly, we find no abuse of discretion in this case where the moving parties have not shown that (1) trying the suit in Orleans Parish rather than Lafayette Parish would be more inconvenient to the parties or witnesses, (2) that access to sources of proof or the premises will be impeded, (3) the cost of obtaining witnesses would be increased, or (4) Orleans Parish courts would present obstacles to a fair trial. Therefore, we affirm the trial court's denial of the motion to transfer this matter to Lafayette Parish.
DECREE
We reverse the judgment of the district court insofar as it dismissed with prejudice Eagle Pipe and Supply, Inc.'s lawsuit against the parties before us on this appeal. We affirm the district court's judgment insofar as it denied the exception of improper venue and denied the motion to transfer on the grounds of forum non conveniens. We defer ruling on the exception of no cause of action filed in this court and refer the exception to the district court after the petition is timely amended. Accordingly, we remand this matter to the district court for further proceedings consistent with this decision.
REVERSED IN PART; AFFIRMED IN PART, AND REMANDED.
TOBIAS, J., concurs with reasons.
LOVE, J., dissents with reasons.
TOBIAS, J., Concurs and Assigns Reasons.
I respectfully concur in order to assign additional reasons in support of the majority's opinion.
As the Louisiana Supreme Court stated in Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1060, 1095-96, 262 So.2d 328, 333-34 (1972),
There has been much discussion about the purpose of the exception of no right of action, and many attempts to differentiate that exception from the exception of no cause of action. One of the best statements of the definition of no right of action and of the basis of the distinction between it and no cause of action was given by the late Henry George McMahon: `The former (no cause of action) is used to raise the issue as to whether the law affords a remedy to anyone for the particular grievance alleged by plaintiff; the latter (no right of action) is employed (in cases where the law affords a remedy) to raise the question as to whether plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy, or to raise the issue as to whether plaintiff has the right to invoke a remedy which the law extends only conditionally.' McMahon, The Exception of No Cause of Action in Louisiana, 9 Tul. L. Rev. 17, 29-30. See also McMahon, Parties Litigant in Louisiana, 11 Tul. L. Rev. 529-30. The exception of no right of action, however, cannot be invoked to determine whether a particular defendant can stand in judgment in a particular case, i.e., whether the right or remedy can be exercised against that defendant. [Footnote omitted; emphasis supplied.]
In my view, the plaintiff/appellant, Eagle Pipe and Supply, Inc. ("Eagle"), has an interest in asserting that one or more of the defendants may have negligently caused damage to the property before it was acquired. Ever since federal law permitted the United States Environmental Protection Agency ("EPA") to force any person in the chain of title to immovable property or who contaminated immovable property to remediate the contamination, such as NORM or TE NORM, and Louisiana state law allowed the Louisiana Department of Environmental Quality to protect Louisiana's environment from contamination, Eagle concomitantly should have a right to seek a redress in our courts against those who cause environmental damage. La.C.C. art. 2315; La.Rev.Stat. Title 30, Subtitles I and II; La.Rev.Stat. 30:2271, et seq.; La.Rev.Stat. 30:2285, et seq.; Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended by Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499 (1986).
Additionally, Eagle should be able to assert a claim against a person causing damage to its immovable property to remediate the damage; although that claim has not yet been made, the plaintiff should be allowed to amend its petition to do so.
As noted in Grefer v. Alpha Technical, 02-1237 (La.App. 4 Cir. 3/31/05), 901 So.2d 1117,
In 1981, in a routine well logging operation on two Occidental Petroleum Corporation platforms in the North Sea, drillers registered elevated levels of radioactivity from the radioactive scale in equipment on the platforms and the tubing in the well holes. The levels of radiation required Occidental to report the discovery to U.K. governmental authorities. The National Radiological Protection Board ("NRPB"), under contract to the U.K. government, did further testing and identified the radioactive component as radium-226, in the form of radium sulfate, co-precipitated with barium sulfate, calcium sulfate, and strontium sulfate. Radium-226 has a half-life of approximately 1,600 years.
All major oil companies operating in the North Sea, including Exxon, were immediately made aware of Occidental's discovery through the United Kingdom Offshore Operators Association ("UKOOA"), the oil industry trade association. As a result of the discovery, the U.K. Government held a major conference in 1983 for the oil companies dedicated solely to the NORM problem. In 1985, the UKOOA Safety Committee published NORM safety guidelines and a NORM Reference Manual, which were distributed to all oil companies.
On April 10, 1986, Chevron identified radium-226 in oilfield equipment at a well site near Brookhaven, Mississippi. As a result of Chevron's discovery, Exxon conducted surveys at four Exxon Mississippi well sites in June 1986 and found radium-226 at those sites. Later that month, Exxon representatives met with other oil company representatives at the Alabama/Mississippi Mid-Continent Oil Gas Association meeting to discuss the radioactive scale problem. Following the meeting, Exxon industrial hygienist, Mr. Lindsay Booher, reported to Mr. M.F. Terrell, a production manager for Exxon's Eastern Division, which covered Louisiana, Mississippi, Alabama, and Florida, advising him what he had found. In a letter dated June 19, 1986, Mr. Booher informed Mr. Terrell that where oilfield equipment was opened up for maintenance, inspection, and cleaning, there would be a human health concern, and if equipment contaminated with radioactive scale was turned over to contractors for cleaning, those contractors had to be notified of the presence of radioactivity. ITCO [the company cleaning pipe on the Grefers' immovable property] was Exxon's main cleaning contractor. Over the next several months, Exxon prepared a videotape and a letter advising cleaning contractors of the NORM problem and how to manage it.
Id., pp. 3-5, 901 So.2d at 1125 [footnotes omitted].
Although the appellees assert that Eagle was a sophisticated purchaser, what Eagle knew and when it knew about the existence of NORM is a question of fact not addressed on an exception of no right on action. If Eagle knew of the potential problems associated with NORM on 22 April 1988, the date it purchased the property, it could have obtained a subrogation of rights from its vendors against any person who contaminated the property. In such an instance, I would agree with the dissent that the exception of no "right" of action should be maintained, although I would allow Eagle to amend its petition to state a "right" of action. See Prados v. So. Cen. Bell Tel. Co., 329 So.2d 744 (La. 1975) and Hopewell v. Mobil Oil Co., 33, 774 (La.App. 2 Cir. 11/1/00), 770 So.2d 874, reversed 00-3280 (La.2/9/01), 784 So.2d 653; Babineaux, supra.
It is quite likely that Eagle's predecessors in title and vendors, defendants (Robert Bridges, Patsy Trimble Bridges, and Edmund J. Baudoin, Jr.) did not know of the potential for NORM to be present on their property when they sold it to Eagle.
I place the word "right" in quotation marks because in my view, the exception of no right of action and no cause of action merge into one in the case at bar. In my view, the issue is best decided on an exception of no cause of action or motion for summary judgment rather that on an exception of no right of action because the exception of no right of action primarily addresses whether the person asserting a claim has an interest in the outcome of the litigation. Certainly Eagle has an interest in asserting the claim.
Because of the EPA's right to seek remediation of the NORM from the former property owners and those who contaminated the immovable property, Eagle should likewise have that right and also a right to claim damages, thereby creating an exception to the general rule of Prado and Hopewell.
LOVE, J., Dissents and Assigns Reasons.