Texas Gas Transmission, LLC v. East

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

TEXAS GAS TRANSMISSION, LLC,

Plaintiff,

v. No. 1:21-cv-01150-JDB-jay

JORDAN EAST and EAST FARMS

PARTNERSHIP, LLC,

Defendants.

______________________________________________________________________________

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

______________________________________________________________________________

INTRODUCTION AND PROCEDURAL BACKGROUND

In its amended complaint in this diversity action, the Plaintiff, Texas Gas Transmission,

LLC (“Texas Gas”), has alleged against the Defendants, East Farms Partnership, LLC (“East

Farms”) and Jordan East, claims of negligence, negligence per se, and trespass. (Docket Entry

(“D.E.”) 11.) Pending on the Court’s docket is Plaintiff’s motion for summary judgment

pursuant to Rule 56 of the Federal Rules of Civil Procedure (D.E. 35), to which Defendants

responded (D.E. 49), and Plaintiff replied (D.E. 53).

JURISDICTION AND CHOICE OF LAW

A federal court has an independent obligation to consider whether it has subject matter

jurisdiction over a case pending before it and may do so sua sponte. Estate of Cornell v.

Bayview Loan Servicing, LLC, 908 F.3d 1008, 1011 (6th Cir. 2018). As courts of limited

jurisdiction, the federal courts have only “the authority to decide cases that the Constitution and

Congress have empowered them to resolve.” Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 474

(6th Cir. 2008) (per curiam).

Title 28 U.S.C. § 1332 confers upon the federal courts original jurisdiction over “all civil

actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between .

. . citizens of different States[.]” 28 U.S.C. § 1332(a)(1). According to the operative pleading,

Texas Gas is a Delaware limited liability company with no member that is a citizen of

Tennessee. East is a citizen of Tennessee residing in Friendship, Tennessee. He is the managing

member of East Farms, a Tennessee limited liability company. No member of East Farms is a

citizen of the same state as Texas Gas. Plaintiff seeks damages in excess of $75,000. In

“diversity cases, the general rule is that the amount claimed by a plaintiff in [its] complaint

determines the amount in controversy.” Heyman v. Lincoln Nat’l Life Ins. Co., 781 F. App’x

463, 469 (6th Cir. 2019) (quoting Rosen v. Chrysler Corp., 205 F.3d 918, 920-21 (6th Cir.

2000)). Accordingly, the Court has original jurisdiction over this suit.

Diversity actions require a federal district court to apply the substantive law of the forum

state. Hackney v. Lincoln Nat’l Fire Ins. Co., 657 F. App’x 563, 570 (6th Cir. 2016) (citing Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The parties do not dispute that Tennessee law

governs this matter.

STANDARD OF REVIEW

Rule 56 provides in relevant part that “[t]he court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “There is a genuine dispute of material

fact if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Hrdlicka v. Gen. Motors, LLC, 59 F.4th 791, 801-02 (6th Cir. 2023) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (internal quotation marks omitted). “A dispute is

‘genuine’ only if a reasonable jury could decide it either way, and it is ‘material’ only if its

resolution could affect the case’s outcome.” Reform Am. v. City of Detroit, Mich., 37 F.4th 1138,

1147 (6th Cir.) (internal quotation marks omitted), cert. denied, 143 S. Ct. 448 (2022).

In making its determination, the court is to “view the factual evidence in the light most

favorable to the nonmoving part[ies], and draw all reasonable inferences in th[ose] part[ies']

favor.” Stein v. Gunkel, 43 F.4th 633, 639 (6th Cir. 2022) (quoting Burwell v. City of Lansing, 7

F.4th 456, 462 (6th Cir. 2021)). “Credibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury functions, not those of a judge, when

ruling on a motion for summary judgment.” Helphenstine v. Lewis Cty., Ky., 60 F.4th 305, 314

(6th Cir. 2023) (quoting Liberty Lobby, 477 U.S. at 255) (internal quotation marks omitted).

UNDISPUTED MATERIAL FACTS

The following material facts are undisputed for purposes of the instant motion unless

otherwise noted.1 Texas Gas operates subsurface natural gas pipelines on property located north

1In their response, Defendants include an “Additional Statement of Undisputed Facts.”

(D.E. 50 at PageID 324-25.) The local rules of this district provide that:

the non-movant’s response may contain a concise statement of any additional

facts that the non-movant contends are material and as to which the non-movant

contends there exists a genuine issue to be tried. Each such disputed fact shall be

set forth in a separate numbered paragraph with specific citations to the record

supporting the contention that such fact is in dispute.

LR 56.1(b) (emphasis added). As Plaintiff correctly points out in its reply, the rule does not

recognize the submission of additional undisputed facts. See Lansky v. Protection One Alarm

Monitoring, Inc., No. 17-2883, 2019 WL 575390, at *1 (W.D. Tenn. Feb. 12, 2019) (because

nonmovant did “not contend her additional statement [of undisputed facts] contain[ed] genuine

factual issues to be tried” as permitted under the local rule, her filing was “not recognized”

thereunder); Whitney v. City of Milan, No. 1:09-cv-01127-JDB-egb, 2014 WL 11398537, at *1

n.1 (W.D. Tenn. Feb. 25, 2014) (local rule did not provide for the filing by a nonmovant of her

own “statement of additional undisputed facts” in response to motion for summary judgment).

Therefore, Defendants' additional undisputed facts will not be considered by the Court. See

Whitney, 2014 WL 11398537, at 1 n.1 (court declined to consider nonmovant’s additional

statement of undisputed facts); Goodbar v. Technicolor Videocassette of Mich., Inc., No. 09-

of Poplar Corner Road, south of Lem Williams Road, east of Norris Crossing Road, and west of

Lower Brownsville Road in Haywood County, Tennessee (the “Property”). Plaintiff holds a

recorded right-of-way agreement to operate pipelines running through the Property. East is an

owner of East Farms, a row crop agricultural concern that leases the Property for agricultural

purposes. Part of East Farms’ business involves the use and operation of mechanized equipment,

including bulldozers and excavators, on the Property to address erosion issues. Defendants have

used a bulldozer to push dirt into piles and an excavator to move the soil to a “dirt pan” when

rebuilding terraces on the Property. Defendants have also used mechanical equipment to dig "a

little trench" about "a foot or so" deep to bury plastic pipe in the ground in order to help redirect

water flow. (D.E. 50 at PageID 318.)

On April 6, 2020, East and two East Farms employees identified as Billy Brimm and

Robert Sego, who East had hired and who reported directly to him, were working on the

Property. Brimm and Sego were operating an excavator and bulldozer, respectively, while East

worked a sprayer a short distance away. The employees were using the equipment to address

erosion by moving dirt to rebuild a handful of terraces. All three knew of the existence of the

pipelines running underneath the Property. The Defendants did not contact Tennessee’s one-call

service or the Plaintiff prior to performing the work.

According to an aerial patrol report dated April 6, 2020, one of Plaintiff's patrol pilots

observed on that date a "Track-hoe and Dozer fixing field across [right-of-way]." (D.E. 35-6.)

In response, two Texas Gas employees, David Kinney and Malcolm Coulston, traveled to the

Property the same day to inspect it for potential damage to the pipelines. The two men surveyed

the Property and inspected various locations, one of which was over a Texas Gas pipeline. They

2553, 2010 WL 5464796, at *3 (W.D. Tenn. Dec. 30, 2010) (declining to consider nonmovant’s

additional statement of undisputed facts as the local rules made no provision for such a practice).

"used shovels to dig out enough dirt to expose the pipeline so that they could inspect the pipeline

for any damage." (D.E. 37 at PageID 210.) However, they were unable to expose the pipeline

due to the amount of water and “sludge” entering the hole as they shoveled. They returned the

following day with a mini-excavator to form a levee on a creek running through the Property so

they could finish exposing the pipeline by shovel. Once the pipeline was exposed, Plaintiff’s

employees discovered two gouges in the pipeline about twelve inches apart.

ARGUMENTS OF THE PARTIES AND ANALYSIS

Negligence Claims.

Common Law Negligence

To prove a prima facie case of negligence under Tennessee law, a plaintiff must show

“(1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling

below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation

in fact; and (5) proximate or legal cause.” Cook v. Fuqua, 653 S.W.3d 702, 706 (Tenn. Ct. App.

2022) (quoting Biscan v. Brown, 160 S.W.3d 462, 478 (Tenn. 2005)), appeal denied (June 8,

2022). As it is dispositive of the instant motion, the Court will focus on causation.

A plaintiff must establish causation under the fourth and fifth elements of the negligence

claim by a preponderance of the evidence. Swift v. Old Dominion Freight Lines, Inc., 583 F.

Supp. 3d 1125, 1132 (W.D. Tenn. 2022). “Causation, or cause in fact, means that the injury or

harm would not have occurred ‘but for’ the defendants’ negligent conduct.” Id. (quoting

Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993)). Upon a showing of causation in fact,

“proximate cause asks whether the law should extend responsibility for negligent conduct to the

consequences that have occurred.” Id. (quoting King v. Anderson Cty., 419 S.W.3d 232, 246

(Tenn. 2013)) (internal quotation marks omitted). To satisfy the proximate cause element,

(1) the tortfeasor’s conduct must have been a “substantial factor” in bringing

about the harm being complained of; (2) there is no rule or policy that should

relieve the wrongdoer from liability because of the manner in which the

negligence has resulted in the harm; and (3) the harm giving rise to the action

could have reasonably been foreseen or anticipated by a person of ordinary

intelligence and prudence.

Hamrick v. James, 599 F. Supp. 3d 720, 724 (E.D. Tenn. 2022) (quoting McClenahan v. Cooley,

806 S.W.2d 767, 774-75 (Tenn. 1991)) (some internal quotation marks omitted). Ordinarily,

causation is a jury question, “unless the uncontroverted facts and inferences to be drawn from

them make it so clear that all reasonable persons must agree on the proper outcome.” Swift, 583

F. Supp. 3d at 1132 (quoting Haynes v. Hamilton Cty., 883 S.W.2d 606, 612 (Tenn. 1994)).

Texas Gas submits that, based upon the undisputed facts before the Court—namely, that

the nonmovants were the only persons working and operating mechanized equipment on the

Property when the aerial patrol pilot made his observation and the damage was discovered—and

the inferences to be drawn from those facts, the only reasonable conclusion is that Defendants

damaged the pipeline. By way of response, Defendants vehemently deny performing work atop

the pipeline or striking it. In support of their position, the nonmovants point to portions of the

deposition testimony of Brimm and Sego2:

Q: Now, do you recall striking the pipeline that day?

A: No, sir.

Q: Did you hit any other type of rocks or hard objects?

A: No, sir.

Q: Did Mr. Sego hit the pipeline?

A: No, sir.

2With respect to some of the deposition testimony quoted in Defendants' memorandum on

this issue, including that of East, the pages cited for such testimony are not included in the

record. Therefore, that testimony will not be considered.

Q: You didn't hear any loud noises or anything?

A: No, sir.

(D.E. 52-2 at PageID 463 (Dep. of Billy Ray Brimm).)

Q: Now, the area on the [P]roperty where y'all were working, was the pipeline

marked in that area?

A: Yeah.

Q: It was marked all the way through that area?

A: It was on the edge of the bank.

Q: Just on the edge of the bank?

A: Yeah.

Q: How far were you from the edge of the bank?

A: On the far side of the farm. I was.

Q: I don't know exactly how far that is. Could you give me a distance, an

approximation?

A: I don't know how to really describe that. I was a pretty good ways away

from the pipeline.

Q: Could you throw a baseball and hit it?

A: No. I can't throw that far.

* * *

Q: Now, do you recall hearing any loud noises that day?

A: No.

Q: Nothing sounded like somebody might have struck a pipeline or a rock or

something?

A: No.

Q: And you don't recall anyone saying anything about striking a pipeline or

coming into contact with anything?

A: Not to me.

* * *

Q: And you said you never saw any type of exposed pipeline or anything in

the area.

A: No, sir.

Q: Have you ever struck a pipeline before in your line of work?

A: Nope. No. I wouldn't be here if I did.

(D.E. 52-1 at PageID 442-43, 445 (Dep. of Robert Sego, Jr.).) Nonmovants also submit that

pilots patrolling the area have on some occasions filed aerial patrol reports regarding activity,

including the presence of equipment on or near pipeline rights-of-way, that, upon further

investigation, were determined to have not been an issue. (See D.E. 52-7 at PageID 510-13.)

Finally, they suggest that the Texas Gas employees investigating the alleged strike themselves

caused the damage to the pipeline.

It is undisputed that Defendants had equipment on the Property on April 6, 2020. There

are also photographs in the record, submitted as exhibits to Plaintiff's reply brief, showing marks

on the pipeline. On the other hand, Brimm and Sego testified that they were aware of the

pipeline, which Defendants assert had been laid decades earlier, and did not strike it. No one,

including the aerial patrol pilot, observed any employee of the Defendants strike the pipeline. It

is also undisputed that Texas Gas itself used an excavator on the Property on April 7, 2020.

While Plaintiff insists that the damage depicted in the photographs reflects "fresh gouges

consistent with gashes that equipment like an excavator would make" (D.E. 53 at PageID 517), it

has pointed to no record evidence that the gouges were either "fresh" or consistent with

Defendants' excavator.

The movant's argument boils down to this: Defendants were there so they must have

gouged the pipeline.3 But its ipse dixit does not make it so. The Plaintiff bears the burden of

establishing negligence at trial. Texas Gas may ultimately prevail but, at the summary judgment

stage, the Court cannot conclude that "the uncontroverted facts and inferences to be drawn from

them make it so clear that all reasonable persons must agree on the proper outcome.” Swift, 583

F. Supp. 3d at 1132, supra. The motion for summary judgment on the common law negligence

claim is, therefore, DENIED. See Shumate v. City of Adrian, Mich., 44 F.4th 427, 438 (6th Cir.

2022) ("If the evidence would allow a reasonable jury to find in favor of a non-moving party,

summary judgment may not be granted.").

Negligence Per Se

“Liability under the negligence per se doctrine can arise when a party fails to perform a

duty imposed by statute or ordinance.” Hamrick, 599 F. Supp. 3d at 726 (quoting Shaw v.

Metro. Gov’t of Nashville & Davidson Cty., 596 S.W.3d 726, 734 (Tenn. Ct. App. 2019)). The

doctrine requires a plaintiff to demonstrate that (1) “the defendant[s] violated a statute or

ordinance that ‘imposes a duty or prohibition for the benefit of a person or the public’” and (2)

“that ‘the injured party is within the class of persons intended to benefit from or be protected by

the statute.’” Id. (quoting Shaw, 596 S.W.3d at 734) (brackets omitted).

Plaintiff argues that Defendants violated the Tennessee Underground Utility Damage

Prevention Act, which prohibits excavation of the private easement of an operator without giving

prior notice to the state's one-call service. See Tenn. Code Ann. §§ 65-31-104(a), 65-31-106(a).

3Indeed, in its reply, Plaintiff likens the situation at hand to a toddler, his cup resting at

his feet, insisting to his mother that he did not drop it while her back was turned.

Defendants do not deny they failed to provide the statutory notice. Texas Gas' claim must

nonetheless fail, however, because, as does a claim for ordinary negligence, one based on

negligence per se requires a showing of actual and proximate cause. Hamrick, 599 F. Supp. 3d

at 726 (citing Rains v. Bend of the River, 124 S.W.3d 580, 590 (Tenn. Ct. App. 2003)). For the

same reasons articulated in the preceding section, Plaintiff has failed to establish that no genuine

issue of fact exists as to causation. The motion for summary judgment on the negligence per se

claim is DENIED.

Trespass Claim.

The movant submits that Defendants unlawfully entered its easement when they used

mechanized equipment to perform excavation work over the pipeline. Intentional entry onto the

land of another without authorization constitutes a trespass under Tennessee law. Barrios v.

Simpkins, No. M2021-01347-COA-R3-CV, 2022 WL 16846642, at **11-12 (Tenn. Ct. App.

Nov. 10, 2022). When a trespass occurs, the "aggrieved party [has] the right to nominal damages

and all consequential damages." Twenty Holdings, LLC v. Land S. TN, LLC, No. M2018-01903-

COA-R3-CV, 2019 WL 4200970, at *7 (Tenn. Ct. App. Sept. 5, 2019).

Texas Gas points out that, under Tennessee law, although Defendants have a leasehold

interest in the Property, the interest of an easement owner such as itself is paramount in the

easement area to that of the servient landholder, who "cannot take actions that unreasonably

interfere with the rights under the easement," citing Nashboro Golf Course, LLC v. Townhomes

of Nashboro Village, L.P., No. M2017-00226-COA-R3-CV, 2018 WL 4382073, at *3 (Tenn. Ct.

App. Sept. 14, 2018) (internal quotation marks omitted). In determining whether a servient

landholder unreasonably interfered with respect to an easement holder, the Nashboro court

articulated the following test: "the owner of the easement must prove . . . (1) the existence of the

easement, (2) unreasonable interference with a legitimate use or purpose of the easement; and (3)

actual damage to the easement holder's use" arising from the interference. Id. (quoting Curtis v.

Parchman, No. M2013-01489-COA-R3CV, 2014 WL 819424, at *7 (Tenn. Ct. App. Feb. 27,

2014)); see also Shell v. Williams, No. M2013-00711-COA-R3-CV, 2014 WL 118376, at *9

(Tenn. Ct. App. Jan. 14, 2014).

The Court assumes upon review of its rather sparse briefing on this claim that Texas Gas

bases its request for summary disposition on unreasonable interference with its easement. If that

is correct, movant has failed to set forth the test cited in Nashboro or apply its elements to the

facts of this case. Based on what is before it, therefore, the Court is unpersuaded that summary

judgment should be granted on the trespass claim.

CONCLUSION

In light of the foregoing, the motion for summary judgment is DENIED. This matter will

proceed to trial.

IT IS SO ORDERED this 21st day of March 2023.

s/ J. DANIEL BREEN

UNITED STATES DISTRICT JUDGE