Briggs v. Southwestern Energy Production, Co.

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ADAM BRIGGS, PAULA BRIGGS,

his wife, JOSHUA BRIGGS, and

SARAH BRIGGS,

Plaintiffs 3:21-CV-520

: (JUDGE MARIANI)

V. : (Magistrate Judge Carlson)

SOUTHWESTERN ENERGY

PRODUCTION COMPANY, a/k/a SWN

PRODUCTION COMPANY, LLC,

Defendant. :

MEMORANDUM OPINION

|, INTRODUCTION

Presently before the Court is Magistrate Judge Martin Carlson’s Report and

Recommendation (“R&R”) (Doc. 14), which recommends that this Court grant Defendant

Southwestern Energy Production Company, a/k/a SWN Production Company, LLC’s Motion

to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 2.) Plaintiffs Adam

Briggs, Paula Briggs, Joshua Briggs, and Sarah Briggs filed objections to the R&R, which

focus on whether Briggs I’ was decided “on the merits” for purposes of res judicata. (See

Doc. 15.) Upon review, the Court determines that Plaintiffs’ objections are without merit,

' As explained in the R&R, Briggs | refers to Plaintiffs’ previous lawsuit, commenced in 2015,

concerning nearly identical subject matter.

and therefore Plaintiffs’ Complaint should be dismissed. However, because Plaintiffs’

claims are precluded only to the extent they arose before or during the pendency of Briggs /,

Plaintiffs will be granted leave to amend their Complaint.

Il. ANALYSIS

A. On the Merits

First, the Court addresses Plaintiffs’ objections. (See Doc. 15.) Although the Court

largely agrees with Judge Carlson’s conclusion, the R&R relies upon federal instead of state

law with respect to whether the decision in Briggs | was “on the merits.” (See Doc. 14 at

14-15.) Upon review, this Court finds that state law applies to this issue. However,

because federal and Pennsylvania law are substantially the same as they pertain to this

element of claim preclusion, the outcome remains unchanged, and the Court agrees that

dismissal of Plaintiffs’ Complaint is warranted.

Plaintiffs’ four objections are restatements of the same argument: that the R&R

erroneously held that Briggs |, which involved the “same plaintiffs against the same

defendant . . . on the same causes of action[,] .. . had been decided against the plaintiffs on

the merits thereof.” (Doc. 15 at 1.) This argument fails under Pennsylvania law, as under

federal law.

Pennsylvania law governs the question of whether Briggs | resulted in a judgment on

the merits. Pursuant to the Full Faith and Credit statute, 28 U.S.C. § 1738, “the preclusive

effect that a federal court must give to a state court judgment is determined by reference to

the state law of preclusion.” Cole v. Finsel, 691 F. Supp. 841, 845 (M.D. Pa. 1988). Here,

the initial, preclusive judgment was obtained under Pennsylvania law in Pennsylvania state

court. See Briggs v. Sw. Energy Prod. Co., 2020 WL 7233111, at *4 (Pa. Super. Ct. 2020).

Indeed, with the exception of this issue, Judge Carlson correctly analyzed claim preclusion

under Pennsylvania law throughout the R&R.

In any event, the application of Pennsylvania law warrants the same result.

Plaintiffs’ reading of “on the merits” misses the mark under both Pennsylvania and federal

law. Plaintiffs contend that because they “never even got ‘in the [c]ourthouse’ let alone their

‘day in [cJourt,” the decision in Briggs | was not on the merits. (Doc. 16 at 5.) Plaintiffs

emphasize that the Pennsylvania Supreme Court did not decide the case on the basis of the

substantive question before it, regarding the “rule of capture.” (See id. at 3, 4.) To be sure,

on remand, the Superior Court’s decision rested more on the sufficiency of the pleadings

than on substantive property law; the court concluded that the claim was legally cognizable

but insufficiently pled. See Briggs, 2020 WL 7233111, at *4 (analyzing allegations in

complaint); see id. at *4 n.4 (noting the Supreme Court’s decision left open “for future

plaintiffs the possibility of litigating trespass claims based on hydraulic fracturing, so long as

they specifically plead” that a physical invasion of their property occurred). Specifically,

because Plaintiffs failed to allege any physical intrusion, the court was “constrained to

reinstate the trial court’s Order granting summary judgment in favor of Southwestern.” /d. at

But Plaintiffs’ argument fails because a decision based on the sufficiency of the

pleadings may still be on the merits. As noted supra, the Superior Court's decision on

remand technically affirmed the trial court’s grant of summary judgment for Defendant, but

rested on Plaintiffs’ failure to allege certain facts in their Complaint. See id. Whether the

Superior Court’s decision is considered a disposition on the pleadings or on summary

judgment, the same outcome results. “Dismissal of an action for failure to state a claim is a

final judgment on the merits,” Brown v. Cooney, 296 Pa. Super. 117, 120, 442 A.2d 324,

326 (1982); see also Cole, 691 F. Supp. at 847, as is the entry of summary judgment. See

Khalil v. Cole, 240 A.3d 996, 1005 (2020) (holding res judicata applied following entry of

summary judgment). It makes no difference that Plaintiffs perhaps could have stated a

claim, had they included in their Briggs complaint allegations that a physical intrusion

occurred. See 18A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. &

Proc. Juris. § 4439 (3d ed.) (explaining that “[tloday, most federal and state courts hold that

the second action is precluded” when “a prior action was dismissed because the plaintiff

made an inadequate effort to plead a legally recognizable claim and a second action is

brought on an improved complaint’).

As Defendant suggests (see Doc. 17 at 10), Plaintiffs could have sought relief by

challenging the Superior Court's implicit decision to deny them leave to amend their

complaint, either via a motion for reconsideration or direct appeal. But Plaintiffs apparently

did not seek such relief then, and their Briggs | complaint was dismissed with prejudice.

See Briggs, 2020 WL 7233111, at *4. That decision was on the merits and precludes the

nearly identical claims before the Court now—but only to the extent the present Complaint

alleges claims that arose before or during the pendency of Briggs I.

B. Claims Arising After Briggs |

To the extent Plaintiffs’ claims arose after the conclusion of Briggs /, those claims are

legally distinguishable: They were not asserted, and by definition, cannot possibly have

been asserted, in Briggs |. For this reason, Plaintiffs are not precluded from asserting

otherwise identical claims that concern conduct that succeeded Briggs !.

The nature of Plaintiffs’ claims, specifically their reference to continuing wrongful

activity, render them unique in the context of res judicata. The present Complaint closely

tracks the Briggs | complaint, and the causes of action asserted in both—for trespass,

conversion, and punitive damages—all stem from a continuing trespass claim. (See Doc. 1-

2 at 7 (‘The actions of [Defendant], as aforesaid, constitute a past and continuing trespass

on the land of the Plaintiffs.”); Doc. 2-1 at 5 (same).) Inexplicably, Plaintiffs provide no

dates to identify the periods during which they allege Defendants physically invaded their

property via their hydrofracking activity.2 Still, both complaints clearly allege that

Defendants’ conduct is ongoing, and seek to recover damages “in an amount equal to the

value of all the natural gas extracted by [Defendant] from under the land of the Plaintiffs to

4) 2 The only dates they provide concern the deed of their property, in December 2013. (Doc. 1-2 at

the date of judgment in this case” and “in an amount equal to the value of all the natural gas

_.. to be extracted in the future.” (Doc. 1-2 at 8; Doc. 2-1 at 5.) The simple fact that the

present Complaint alleges past and continuing trespass as of a later date—March 22,

2021—makes the difference.

In other words, the present Complaint uses the same language but necessarily puts

at issue some conduct that the Briggs | complaint did not, because that conduct had not yet

occurred when Briggs | was pending. Specifically, the Complaint raises, for the first time,

any trespass or conversion that allegedly occurred after the conclusion of Briggs / and

through “the date of judgment in this case.” (/d.) And as the Pennsylvania Supreme Court

explained in Callery v. Municipal Authority of Blythe Township, res judicata cannot apply to

claims concerning activity that succeeded the previous, purportedly preclusive lawsuit. 243

A.2d 385, 387 (1968).

The facts of Callery are instructive. There, the plaintiff brought an action in equity

against her local municipal authority, alleging it had failed to provide “pure and wholesome

water.” /d. at 387. The plaintiff sought an injunction as well as “damages caused by the

acts of the authority prior to June, 1962.” Id. In November 1964, a hearing was held and

the complaint was dismissed based on findings that the water was suitable. /d. The court's

findings were based on tests and reports produced by various entities, all “made [p]rior to

the opinion date.” /d. at 388. A year later, the authority cut off the plaintiffs water for failure

to pay. /d. The plaintiff then filed another complaint, asserting “the failure to provide ‘pure

and wholesome water’ for the period prior to December 6, 1965 and [seeking] money

damages in trespass from the authority for allegedly wrongful shutting off of [the plaintiffs}

service and for refusal to restore the service.” /d.

The Pennsylvania Supreme Court held that res judicata did not fully preclude the

second complaint. The court summarized the issue as follows:

The 1962 action was thus brought on the basis that the authority supplied

unwholesome water [p]rior to June, 1962. The chancellor's decision was that

the authority's water was wholesome up to some time in 1964. The 1965 action

presented at least one new issue which could not possibly have been decided

in the earlier action. Did the authority furnish ‘pure and wholesome water’

during the calendar year 1965?

Id. The court acknowledged the likelihood that “the 1964 equity adjudication is res judicata

as to the wholesomeness of the water up to the date of the last test made in 1964 by the

Department of Health or by outside agencies or perhaps even as of the date of the 1964

decree.” /d. But, as the court noted, “the condition of the water may well have changed

after the 1964 decree was rendered.” Id. As such, the plaintiffs second claim “could not

possibly have been raised in the 1962 action.” /d.

This fact was dispositive, because “an adverse adjudication against a party

concerning conditions allegedly existing in year ‘X’ is not res judicata of a claim that the

conditions which were adjudicated not to exist in year ‘X’ do exist in year "Y’, a year not

covered by the year ‘X’ adjudication.” /d. (first citing Rieck Ice Cream Company Appeal, 209

A.2d 383 (1965); and then citing Haefele v. Davis, 160 A.2d 711 (1960).

Such is the case here, too. As the R&R notes, four conditions must be met for res

judicata to apply. (Doc. 14 at 15-17.) The difference in the time period covered by the

present Complaint renders unsatisfied the first condition: that the two actions share an

“identity of the thing sued upon.” Callery, 243 A.2d at 387; see also Gregory v. Chehi, 843

F.2d 111, 116 (3d Cir. 1988) (applying Pennsylvania law). In Briggs /, the “thing sued

upon,” or the alleged wrongful act, was Defendant's past and continuing hydrofracking

activity, up through the date of judgment in that case: December 8, 2020. In the present

Complaint, the “thing sued upon” is Defendant's past and continuing hydrofracking activity,

up through the date of judgment in this case, which is yet unknown but necessarily in the

future. The present Complaint therefore “present[s] at least one new issue which could not

possibly have been decided in the earlier action’: Does Defendant’s activity after December

8, 2020 constitute trespass or conversion? Callery, 243 A.2d at 388.

In the Court’s view, this approach is the only logical one. As the Pennsylvania

Supreme Court explained in Haefele v. Davis,

Because the tortious conduct of the appellants was continuous in nature, it

would seem anomalous for us to hold that plaintiffs were bound to seek all their

damages in the one action, when we see that even at the time of the decree in

the first action, they were still, and for a while thereafter, victims of the same

tortious conduct of which they were complaining.

399 Pa. 504, 511, 160 A.2d 711, 714 (1960). It makes no difference that here, Plaintiffs did

not recover in their first action. In this case, Plaintiffs cannot be forever precluded from

complaining about continuing conduct solely because their initial lawsuit with respect to that

conduct, occurring during an earlier time period, was unsuccessful.

For all of these reasons, Plaintiffs’ claims are precluded only to the extent they

concern activity arising before or during the pendency of Briggs !. Res judicata does not

apply to those claims regarding activity that succeeded Briggs /. Because Plaintiffs’

Complaint asserts claims for past and continuing wrongful conduct without distinguishing

between pre- and post-Briggs /, nor providing any details regarding timing, Plaintiffs’

Complaint will be dismissed, but the Court will grant Plaintiffs leave to amend their

Complaint to limit their claims temporally and assert claims concerning only that activity that

could not have been the subject of Briggs |. See Haefele, 160 A.2d at 713 (“The estoppel of

a former adjudication will extend only so far as the subject-matter of the second suit is

substantially the same as that of the first ‘and may be binding on some points while leaving

others open to controversy.” (quoting Wright v. Weber, 17 Pa. Super. 451, 457 (1901))).

Ill. CONCLUSION

The R&R (Doc. 14) will be adopted as modified for the reasons stated herein.

Plaintiffs’ Complaint will be dismissed, but Plaintiffs will be granted leave to amend their

Complaint in accordance with the analysis set forth supra.

7 ye

129 (\WiAMaw

Robert B. Mariani

United States District Judge