Petition for Writ of Certiorari — Frank C. Minvielle, LLC v. Atlantic Refining Co. (No. 09-493)

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“@e CO mm a Le mA a a

Supremes Couit, U.S.

i y (\) FILED

om 09-493 0CT 22 2009

OFFICE OF THE CLERK

In The

Supreme Court of the United States

e

FRANK C. MINVIELLE, LLC,

Petitioner,

versus

ATLANTIC REFINING COMPANY, OXY U.S.A. INC.,

PACIFIC ENTERPRISES OIL CO. (USA), and

MOSAIC GLOBAL OPERATIONS, INC.,

Respondents.

6

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

%

PETITION FOR A WRIT OF CERTIORARI

o— 4

ViIcTOR L. MARCELLO

Counsel of Record

TALBOYV, CARMOUCHE & MARCELLO

P.O. Box 759

Gonzales, LA 70707-0759

(225) 644-7777

PATRICIA E. WEEKS

JOHN P. GONZALEZ

WEEKS & GONZALEZ, APLC

400 Mayazine Street, Suite 200

New Orleans, LA 70130-2444

(504) 799-2888

QUESTIONS PRESENTED FOR REVIEW

Does the dismissal without prejudice of a re-

moved action for lack of standing preclude a

second action when the plaintiff acquires stand-

ing after the dismissal?

Does a district court have ancillary or supple-

mental jurisdiction to dismiss a removed action

on grounds of res judicata if the plaintiff does not

otherwise have standing under Article III and

state law?

Is a federal court required to remand an action

removed on grounds of diversity when the plain-

tiff has no standing under Article IJI or state

law?

Should Burford abstention be applied to a sui

generis Louisiana statute governing private

claims for oilfield remediation that: (1) requires

substantial involvement of the state’s natural

resources agency in the judicial decision making

process; and (2) mandates an expedited de novo

appeal that is incompatible with federal appel-

late rules and standards of review?

PARTIES TO THE PROCEEDING

The parties to the proceeding in the Honorable

United States Court of Appeals for the Fifth Circuit

whose judgment is sought to be reviewed are:

Frank C. Minvielle, LLC, Petitioner

Atlantic Refining Company, Respondent

OXY U.S.A. Inc., Respondent

Pacific Enterprises Oil Company (USA),

Respondent

Mosaic Global Operations, Inc., Respondent

111

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW...... | i

PARTIES TO THE PROCEEDING ..................... ii

TPR CP COREG ee 0 os vcp tse scceseeenscnvssesscacenes ili

TABLE OF AUTHOR Cie oessesssvccccesscnrsssescesescens V

PETITION FOR WRIT OF CERTIORARI .......... 1

CFR EIT r eee Wee WF ssid uh sag nisetersctnrancvansueaavs l

CONSTITUTIONAL AND STATUTORY PRO-

Fee BO te Been ga tccsdcecciesiccsessss oiseesneees

APPENDIX

Opinion of the U.S. Court of Appeals for the

Fifth Circuit filed July 24, 2009.............0.00... App. 1

Judgment of the U.S. Court of Appeals for the

Fifth Circuit filed July 24, 2009.................... App. 17

Memorandum Ruling on Motions for Sum-

mary Judgment from the U.S.D.C. for the

Western District of Louisiana filed September

i Ee hs vennekereouiceniacs plipaitanasauabest sy yeeat eeu App. 19

Judgment from the U.S.D.C. for the Western

District of Louisiana filed September 6, 2007 ... App. 37

TABLE OF CONTENTS — Continued

Page

Memorandum Ruling on Motion for New Trial

and/or to Amend Judgment from the U.S.D.C.

for the Western District of Louisiana filed

Be iy Se iiiiniatasi ccvenrdsensescoseieenis App. 39

Memorandum Opinion — Ruling on Motion

from the U.S.D.C. for the Western District of

Louisiana filed January 12, 2005.................. App. 50

Memorandum Opinion — Ruling on Motions

from the U.S.D.C. for the Western District of

Louisiana filed October 19, 2004................... App. 61

Judgment from the U.S.D.C. for the Western

District of Louisiana filed October 19, 2004...App. 100

28 U.S.C.A. §1332. Diversity of Citizenship;

amount in controversy; costs

SI os ceca sidiiencensapasicoeaaceagastubaacenier merepenecnuenal App. 112

La. Rev. Stat. Ann. §30:29. Remediation of

oilfield sites and exploration and production

as daedtgetasecksapdcsons capnessecaccsesseiandcaeoasavsuuecteds App. 116

TABLE OF AUTHORITIES

Page

CASES

Abortion Rights Mobilization Inc. v. Baker, 885

ee I SE Gite IE oo bs cv eiés cna ssdcvncduseisns cuxcdecactsece 9

Boone v. Kurtz, 617 F.2d 435 (5th Cir. 1980)............. 11

Brereton v. Bountiful City Corp., 434 F.3d 1213

SN Nr II cud. cs naterseckoniesescavcbslacenenieeesecneeee 13

Burford v. Sun Oil, 319 U.S. 315 (1943)............ passim

Garamendi v. Allstate Ins. Co., 47 F.3d 350 (9th

Se I ross cn evar cavaecoxuy sa eacanoeeanox ie caaeecaronrasaiina vad 17

International Primate Protection League uv.

Administrators of Tulane Education Fund,

ee eee Fe BE Py sa ncy sd tusbacdcndusaamraeyeiionenendtenirolies 9

Jepsen v. Texaco, Inc., 1995 WL 607630 (10th

Re WY ra Se gnccois oiics cactescaseusop aioe ncavsciontasiisats Dae 9

Lejeune Bros., Inc. v. Goodrich Petroleum Co.,

LLC, 961 So.24 ZS (Lia. App. ZO0T)......scsccccessessoese 6,7

Maine Ass'n of Interdep. Neighborhoods uv.

Comm’r, Maine Dep't of Human Servs., 876

ee ee © Re Ge Biv <oeincdnvcivedsuccavasviaseecovnaeionns 9

McCarney v. Ford Motor Co., 657 F.2d 230 (8th

Car. 06) ).......: dias baciatetescapen tune taieneae eae 12

Melahn v. Pennock Ins., Inc., 965 F.2d 1497

oe A SEE ©... os cavacscceusevendutanssiese ct eeaiema een 21

Perry v. Globe Auto Recycling, Inc., 227 F.3d

UP CME NET. DOOD co sspns ness exsscxissiastnmsnsccenviersateaienssnael 7

V1

TABLE OF AUTHORITIES — Continued

Page

Postal Telegraph Cable Co. v. Alabama, 155

cs dls sen nupueunenuedadaes skeen 21

Quackenbush v. Allstate Ins. Co., 517 U.S. 706

PRE antkcnkeneussaasesend Recsdinakidaaneneensecbeatenes 15, 16, 17, 18

Richards v. Jefferson County, 517 U.S. 793

A os ae eee chs e ca caucbasdags acahardexelnauasssceen 12

Royal Ins. Co. of Am. v. Quinn-L Capital Corp.,

OGO0 F.2d 1286 (Gth Cir, LOOZ) ..cccscccccscssscscvsrsceas 10, 11

TAVLOr VU. SlUMMOL, TZS GS. Cl. ZUG .....ccccoscorsccscsvcssssvsobe

Thomas v. Ashley Inv. Co., Docket No. 38839,

(5th Jud. Dist. Ct. for Richland Parish, LA)..........21

Wheeler v. Travelers Inc. Co., 22 F.3d 534 (3d

Aa at oh akg cps guwebavecaucevncsedess Y

STATUTES

28 U.S.C. § 1254 3

Set 5 6 Ok Ae eee nan ee

A Is es aa a dabuiveesaavandaacas uaa

28 U.S.C. §$ 1447(c) .. 9

OE a i ae Re Ll) 19

LA. REV. STAT. ANN. § 30:29 passim

CONSTITUTIONAL PROVISIONS

United States Constitution. Article IT] 3 8

TABLE OF AUTHORITIES — Continued

Page

RULES

go ee CR Me Re Sl) er eer aera Ar

—

OTHER AUTHORITIES

17A CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, FEDERAL PRACTICE AND PROCEDURE

§ 4245 (3d ed.)............ AG , | 21

PETITION FOR WRIT OF CERTIORARI

Petitioner Frank C. Minvielle, LLC respectfully

petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

Fifth Circuit entered on July 24, 2009. This judgment

affirmed a dismissal of this case on summary judg-

ment by the United States District Court for the

Western District of Louisiana.

¢

OPINIONS BELOW

Frank C. Minvielle, LLC v. Atlantic Refining Co.,

formerly known as Atlantic Richfield Co.; OXY U.S.A.

Inc., formerly known as Cities Service Oil Co.; Pacific

Enterprises Oil Co. (USA), formerly known as Sabine

Production Co. Inc.; Mostac Global Operations, Inc.,

formerly known as IMC Global Operations Inc.,

United States Court of Appeal for the Fifth Circuit,

Civ. A No. 08-30399, July 24, 2009, not selected for

publication in the Federal Reporter, reprinted in the

appendix, App. 1-18.

Frank C. Minvielle, LLC v. Atlantic Refining Co.,

OXY U.S.A. Inc., Pacific Enterprises Oil Co. (USA),

Mosiac Global Operations, Inc., United States District

Court, Western District of Louisiana, Civ. A No. 05-

1312, Memorandum Ruling on Motion for New Trial

And/Or To Amend Judgment, entered March 24,

2008, not reported in F. Supp. 2d, Unpublished, re-

printed in the appendix, App. 39-49.

Frank C. Minvielle, LLC v. Atlantic Refining Co.,

OXY U.S.A. Inc., Pacific Enterprises Oil Co. (USA),

Mosiac Global Operations, Inc., United States District

Court, Western District of Louisiana, Civ. A No. 05-

1312, Memorandum Ruling on Motions for Summary

Judgment, entered September 6, 2007, not reported

in F. Supp. 2d, Unpublished, reprinted in_ the

appendix, App. 37-38.

Frank C. Minvielle, LLC v. IMC Global Opera-

tions, Inc., United States District Court, Western Dis-

trict of Louisiana, Civ. A No. 03-1908, Memorandum

Opinion — Ruling on Motion, entered January 12,

2005, not reported in F. Supp. 2d, Unpublished,

reprinted in the appendix, App. 50-60.

Frank C. Minvielle, LLC v. IMC Global Opera

tions, Inc., United States District Court, Western Dis-

trict of Louisiana, Civ. A No. 03-1908, Memorandum

Opinion — Ruling on Motions, entered October 19,

2004, reported in F. Supp. 2d at 380 F. Supp. 2d 755,

reprinted in the appendix, App. 100-02.

«

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The judicial Power shall extend to all Cases,

in Law and Equity, arising under this

Constitution, the Laws of the United States,

and Treaties made, or which shall be made,

under their Authority; — to all Cases affecting

Ambassadors, other public Ministers and

Consuls; — to all Cases of admiralty and

maritime Jurisdiction: to Controversies to

which the United States shall be a Party;

to Controversies between two or more States;

—- between a State and Citizens of another

State; — between Citizens of different States;

between Citizens of the same State

claiming Lands under Grants of different

States, and between a State, or the Citizens

thereof, and foreign States, Citizens or

Subjects.

U.S.C. Const. Art. III § 2, el. 1.

28 U.S.C. § 1332, reprinted in the appendix, App.

103-11.

28 U.S.C. § 1441, reprinted in the appendix, App.

112-15.

——— @ ——————EEE

JURISDICTIONAL STATEMENT

The judgment of the Court of Appeals was

entered on July 24, 2009. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254.

STATEMENT OF THE CASE

Frank Minvielle, LLC (“Minvielle”) owns prop-

erty located in Iberia Parish, Louisiana in the Loisel

Oil and Gas Field. Minvielle alleges that its property

(hereinafter “Property”) was polluted by the defen

dants’ oil and gas operations

Minvielle’s ancestor in title, Juliet Delcambre,

entered into an Oil, Gas, and Mineral Lease with

defendant Atlantic Refining Company (“ARCO”) in

1961 (“1961 Lease”). The oil and gas operations

alleged to have damaged the plaintiff’s property were

conducted under this 1961 Lease. Defendants IMC

(Mosaic), Oxy, and Pacific are successors-in-interest

to ARCO by means of sub-leases or assignments of

the 1961 Lease.

Juliet Delcambre died in 1988. Her ownership of

the Property passed by succession to her daughter,

Juliet D. Cowan, and her grandchildren, Eleanor

Cowan Brown, Finis Ewing Cowan, III, Tomas Disney

Cowan, Virginia Cowan Richards, and Kathleen

Cowan Shanfield (collectively, “the Cowans”). Juliet

Cowan's husband, Finis, Jr., is a former federal

district judge who handles the family’s legal business.

In August, 1998, the Cowans sold the Property to

plaintiff Frank C. Minvielle, LLC. The act of sale to

plaintiff did not contain a specific assignment of the

right to sue for remediation damages.

Minvielle first filed suit for remediation damages

in 2003 (“Minvielle I”). The suit was removed to

federal court and thereafter dismissed without preju-

dice for lack of standing. The district court held that

for Minvielle to have standing to sue for pre-

acquisition property damages under Louisiana law, it

must have an assignment of the Cowans’ rights to sue

because: (1) the Property was damaged during the

period of the Cowans’ ownership; and, (2) under

Louisiana law, the right to sue for property damage is

a personal right that is not transferred upon transfer

of the property absent a specific assignment in the

Act of Sale. During the pendency of Minvielle 1, Judge

Cowan, seeking to protect his family from suit, agreed

to obtain the required assignment from his family

members. However, despite the best efforts of Judge

Cowan and plaintiff, the required document was not

signed until after Minvielle ] had been dismissed. The

dismissal entered in Minvielle I was without preju-

dice.

After obtaining the completed assignment, plain-

tiff re-filed its suit in the same state court in which

Minvielle I was filed. This second suit (“Minvielle I”)

was promptly removed and dismissed for lack of

standing. Minvielle appealed. At oral argument be-

fore the Fifth Circuit, plaintiff challenged federal sub-

ject matter jurisdiction on grounds of lack of standing

and Burford abstention. The Fifth Circuit denied

these jurisdictional challenges and affirmed the dis-

trict court, finding that the federal district court had

ancillary jurisdiction over Minvielle II] and that the

district court’s Minvielle I decision precluded Min-

vielle from arguing in Minvielle II that it has stand-

ing to sue for environmental damages. The Fifth

Circuit rejected Minvielle’s Burford abstention ar

gu-

ments as “inapplicable” and untimely

6

REASONS FOR GRANTING THE WRIT

I. Lack of standing in Minvielle I does not

preclude a suit on the same grounds be-

cause Minvielle acquired standing after

Minvielle I was dismissed without preju-

dice.

An amendment to the Act of Sale between Juliet

Delcambre and Minvielle was signed by the Cowans

and Minvielle after the judgment was entered dis-

missing Minvielle I without prejudice. In this amend-

ment, the Cowans recited that they intended in the

original sale to transfer their right to sue to Min-

vielle. Under Louisiana law, the amendment to the

Act of Sale was sufficient to confer standing on

Minvielle to sue for environtmnental damage to its

property. Lejeune Bros., Inc. v. Goodrich Petroleum

Co., LLC, 981 So. 2d 23, 29-30 (La. App. 2007) (“It is

established that this right can be transferred to the

succeeding property owner, but a specific assignment

of this right is required to accomplish such a

transfer.”).’

' The Fifth Circuit disingenuously seeks to create Louisiana

law out of whole cloth by seizing upon an inartfully drafted

sentence from the Louisiana Third Circuit’s LeJeune decision,

which states, “Two federal cases have expounded on the affect of

the Hopewell decision upon Louisiana’s longstanding rule that

the right to damages conferred by a lease is a personal right that

must be specifically assigned at the time of sale.” Leyeune Bros.,

Inc. v. Goodrich Petroleum Co., LLC, 981 So. 2d 23, 31 (La. App.

2007). The Fifth Circuit points to this sentence as evidence that

a landowners’ right to sue cannot be assigned after a property

(Continued on following page)

7

This Court has yet to decide whether an assignee

who has his own claims dismissed for lack of standing

is precluded from establishing standing to bring a

new action on claims he later acquires from a third

party. In apparently the only Circuit decision directly

on point, the Seventh Circuit in Perry v. Globe Auto

Recycling, Inc., 227 F.3d 950 (7th Cir. 2000), held that

an assignee who lost his own case for lack of standing

was not precluded from bringing a new action on

claims he later acquired.

The facts of the present case are even stronger

than the facts before the court in Perry. Perry’s prior

suit was dismissed on the merits with prejudice,

whereas Minuvielle I was dismissed without prejudice

for lack of subject matter jurisdiction. Federal Rule of

Civil Procedure 41(b) provides that a dismissal for

lack of jurisdiction is not an adjudication on the

sale is completed. There is no Louisiana case that has held that

the right to sue for property damages cannot be assigned to the

vendee after the sale. Reading the quoted sentence from the

LeJeune opinion in context, the Third Circuit was merely allud-

ing to the fact that property sales containing only a traditional

transfer of warranties do not convey the personal nght to sue for

damages. No court in Louisiana has ever decided that a post-

sale assignment of the right to sue for property damages is with-

out effect. The Louisiana Civil Code provides that “All rights

may be assigned with the exception of those pertaining to obli-

gations that are strictly personal.” The right to sue for property

damages is a personal right, not a “strictly personal” right.

Lastly, the quoted sentence from the LeJeune decision refers

only to rights to damages conferred by a lease. The amendment

to the Act of Sale at tssue here purports to transfer both con-

tractual and tort rights to sue

8

merits. Fed. R. Civ. Proc. R. 41(b). The Fifth Circuit

acknowledges that the judgment in Minvielle I was

not a judgment on the merits. Yet, in Minvielle I, the

district court and Fifth Circuit treated the dismissal

of Minvielle I as if it were a dismissal on the merits.

II. The district court did not have ancillary or

supplemental jurisdiction to dismiss this

removed action on grounds of res judicata

because the district court determined that

plaintiff did not have standing under Arti-

cle III or state law.

This case was removed on grounds of diversity

removal jurisdiction. The district court dismissed for

lack of subject matter jurisdiction based on Min-

vielle’s purported lack of standing.’ At oral argument

in the Fifth Circuit, Minvielle asserted that the dis-

trict court lacked subject matter jurisdiction and

requested that the case be remanded to state court.

The Fifth Circuit denied Minvielle’s request, finding

that the district court had “ancillary jurisdiction.”

The propriety of removal turns upon the original

jurisdiction of the district court. If the district court

* Minvielle IT, 05-cev-1312, Rec. Doc. 87 at 13. The district

court in Minvielle I] stated: “It is well settled that unless a

plaintiff has standing, a federal district court lacks subjcci mat-

ter jurisdiction to address the merits of the case. In the absence

of standing, there is no “case or controversy” between the

plaintiff and defendant which serves as the basis for the exercise

of judicial power under Article III of the constitution.” Jd. at 8.

9

lacked subject matter jurisdiction, the present case

should have been remanded to state court: “If at any

time before final judgment it appears that the district

court lacks subject matter jurisdiction, the case shall

be remanded.” 28 U.S.C. § 1447(c)(emphasis added). A

district court does not have the discretion to dismiss a

removed case for lack of subject matter jurisdiction.

International Primate Protection League v.

Administrators of Tulane Educational Fund, 500 U.S.

72, 89 (1991) (noting that literal words of § 1447(c)

permit district court no discretion to dismiss). In

other words, when a district court lacks subject mat-

ter jurisdiction, it must remand even in instances

where it believes the case will likely be dismissed by

the state court.’ Because the district court determined

that it lacked standing in Minvielle IJ, it was con-

stitutionally required to remand. Instead, it dis-

missed the case.

* The jurisprudence is replete with cases holding that the

lack of standing in a removed case is a jurisdictional defect that

requires remand. Wheeler v. Travelers Ins. Co., 22 F.3d 534, 537

(8d Cir. 1994)(“if a district court finds that a plaintiff in a

removed case does not have standing, it will remand the case

to state court”); Abortion Rights Mobilization Inc. v. Baker, 885

F.2d 1020, 1023 (2d Cir. 1989)(lack of standing to bring a suit

divests the district court of jurisdiction); Maine Ass’n of Interdep.

Neighborhoods v. Comm’r, Maine Dep't of Human Servs., 876

F.2d 1051, 1053 (1st Cir. 1989)(holding that determination of no

standing is a determination of no subject matter jurisdiction

requiring remand); see also Jepsen v. Texaco, Inc., 1995 WL

607630, 2 (10th Cir. 1995).

10

In an effort to justify the district court’s failure to

remand, the Fifth Circuit re-framed the jurisdictional

issue as one involving an attempt by Minvielle to

collaterally attack an adverse judgment. The Fifth

Circuit reasoned that “[i]f the Minvielle I court should

have remanded rather than granted summary judg¢g-

ment, its judgment could have been reversed on ap-

peal, but Minvielle chose not to appeal. Accordingly,

the judgment became final and is now insulated from

Minvielle’s collateral attack.” Ship Op. at 6; App. at 6.

However, the adverse judgment against Minvielle in

Minvielle I was a judgment adverse to his standing to

bring his own claim, not to his standing to bring the

Cowans’ claim that is alleged in Minvielle IJ. Further,

the Fifth Circuit acknowledges that Minvielle I was

dismissed without prejudice. In deciding not to appeal

Minvielle I, Minvielle was entitled to rely on the fact

that a dismissal without prejudice is, indeed, a dis-

missal without prejudice. Minvielle could not have

reasonably foreseen that a dismissal of its own claims

without prejudice would later result in a dismissal of

the Cowans’ claims.

Despite its acknowledgment that Minvielle’s lack

of standing in Minvielle 11 would ordinarily deprive

the court of subject matter jurisdiction, the Fifth Cir-

cuit determined that the district court could nonethe-

less exercise its “ancillary jurisdiction” in Minvielle II

“to secure or preserve the fruits and advantages of a

judgment or decree rendered” in Minvielle I. Slip Op.

at 7; App. at 7 (quoting Royal Ins. Co. of Am. v.

Quinn-L Capital Corp., 960 F.2d 1286, 1292 (Sth Cir.

11

1992)). However, these “fruits and advantages” are

limited to the district court’s determination that

Minvielle did not have standing to assert its own

claim. The merits of the Cowans’ claims were not

determined in Minvielle J, nor was Minvielle’s right to

assert the Cowans’ claims.

The Fifth Circuit, again relying on its own prece-

dent in Royal Insurance, concluded that ancillary

jurisdiction was appropriate because “Minvielle’s sec-

ond suit, if successful, would nullify the district court

judgment in Minvielle I.” This statement is plainly

wrongheaded. A judgment finding that Minvielle has

standing to bring the Cowans’ claims cannot under

any reasonable scenario nullify a judgment finding

that Minvielle does not have standing to bring its own

claims.

Ill. The Fifth Circuit misapplied the doctrine

of res judicata.

Realizing that a lack of standing would require

remand, the Fifth Circuit was forced to resort to res

judicata as the linchpin of its decision to affirm the

district court. However, res judicata in Minvielle II

cannot bar a claim that was never asserted in

Minvielle I. The Fifth Circuit notes that “‘a second

complaint cannot command a second consideration of

the same jurisdictional claims.’” Slip Op. at 10; App.

at LO (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th

Cir. 1980)). However, the jurisdictional claim asserted

12

by Minvielle in Minvielle I] is different from the juris-

dictional claim asserted in Minvielle J. In Minvielle J,

Minvielle claimed standing to assert its own claims,

whereas in Minvielle I], it seeks to assert the Cowans’

claims.

A court’s “decision to dismiss based on any of the

doctrines under the justiciability heading [such as

standing] should preclude relitigation of the same

justiciability issue but not a second suit on the same

claim even if arising out of the identical set of facts.”

McCarney v. Ford Motor Co., 657 F.2d 230, 233-34 (8th

Cir. 1981). In the present case, the Fifth Circuit cor-

rectly held that res judicata precludes relitigation of

Minvielle’s standing to bring its own claim. However,

it incorrectly concluded that Minvielte’s standing to

assert the Cowans’ claim was also precluded.

Last year, this Court observed that the broad ap-

plication of claim and issue preclusion to nonparties

“runs up against the ‘deep rooted historic tradition

that everyone should have his own day in court.’”

Taylor v. Sturgell, 128 S. Ct. 2161, 2171 (2008)(quot-

ing Richards v. Jefferson County, 517 U.S. 793, 798

(1996)). The Cowans have not. had their day in court

to assert their claims. The Cowans were not parties

in Minvielle I. The district court in Minvielle I held

that the Cowans as former owners of the Property,

not Minvielle, had the right under Louisiana law to

seek remediation damages. It stands logic on its head

to conclude, as the Fifth Circuit did, that Minvielle I

can now be used to defeat the very claim that the

13

district court in Minvielle J found to be actionable but

unasserted.

It is of critical importance to the Cowans that

they have their day in court. The Cowans have as-

signed their rights to Minvielle. If Minvielle is denied

the right to seek remediation by asserting these

assigned rights against the defendants, the Cowans

will be at risk of exposure to remediation claims by

Minvielle. By dismissing Minvielle’s claims in the

present case, the Fifth Circuit has effectively denied

the Cowans their day in court by means of an overly

broad application of the doctrine of res judicata. The

merits of the Cowans’ claims will have been disposed

of by dint of jurisdictional acrobatics. Muinvielle |

should not be allowed to serve as a de facto deter-

mination of the merits of the Cowans’ claims. The

district court concluded in Minvielle I that it lacked

standing and was thereby prohibited from entering a

judgement on the merits. Brereton v. Bountiful City

Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).

IV. Burford abstention applies to the Louisi-

ana Oilfield Remediation Act.

For the first time on appeal, Minvielle asserted

that Burford abstention applies and that, as a conse-

quence, this case should be remanded. See Burford v.

Sun Oil, 319 U.S. 315 (1943). Minvielle’s Burford ab-

stention claim is based on a 2006 Louisiana statute

adopted specifically to regulate private claims for

remediation of the State’s innumerable oilfield sites

14

See generally LA. REV. Stat. ANN. § 30:29-:29.1 (2008)

(hereinafter “Louisiana Oilfield Remediation Act”).

The Louisiana Oilfield Remediation Act is

structured so that the state oilfield environmental

agency and the courts are working partners with

regard to the resolution of private claims for oilfield

remediation damages. The statute requires that any

private lawsuit seeking damages for remediation of

an oilfield site be served on the Louisiana Depart-

ment of Natural Resources (“LDNR”), the agency

charged with the administration of state regulations

concerning oil and gas sites, including the environ-

mental regulations that pertain to those sites. The

LDNR has a right to intervene in the case after it is

served. After the judge or jury determines the respon-

sible party or parties and awards damages, the case

is referred to the LDNR for the determination of

a “feasible plan” to remediate the property. This

determination is made after an agency hearing. The

case is then referred back to the district court. The

district court must adopt the feasible plan approved

by the LDNR, unless a party proves that another

plan is more feasible. After a final feasible plan is

determined, the court orders that the portion of the

damages judgment needed to fund the feasible plan

be deposited in the registry of the court. The money

deposited in the registry of the court can only be used

to fund the implementation of the feasible plan. Any

unused funds are returned to the oil company de-

fendants. Any appeal of the judgment of the trial

court regarding the feasible plan is required to be

15

handled on an expedited basis by the appellate court.

The statute mandates an appellate de novo review of

the record. Once the judgment becomes final, the

district court and the LDNR jointly supervise the

implementation of the feasible plan.

This is a classic case for Burford-type abstention.

In Burford, the plaintiff Sun Oil attacked an oilfield

permit granted to Burford by the Texas Railroad

Commission. This Court held that abstention was

proper because under Texas law, “the Texas courts are

working partners with the Railroad Commission in

the business of creating a regulatory system for the

oil industry.” Jd. at 326 (emphasis added). This is

identical to the situation presented here. The state

district and appellate courts in Louisiana are now

“working partners” with the Louisiana Department of

Natural Resources (““LDNR”) in the resolution of

private oilfield remediation claims.

A. Burford/Quackenbush require that the

case involve a claim that is equitable in

nature.

The powers accorded the district courts and

LDNR in developing and implementing the “feasible

plan” required by the Louisiana Oilfield Remediation

Act are essentially equitable in nature. A plaintiff in a

Louisiana oilfield remediation case no longer has the

option to pursue a “damages only” remedy under

Louisiana law. The equitable nature of the relief

16

sought by the plaintiff —- the determination and imple-

mentation of the “feasible plan” — supports Burford

abstention. Quackenbush v. Allstate Ins. Co., 517 U.S.

706 (1996).

While state regulation serves as a minimum re-

quirement in the formulation of the feasible plan

under the Louisiana Oilfield Remediation Act, the

trial court is accorded considerable discretion to

depart upward from the state regulation in adopting

the final feasible plan: “The court shall adopt the plan

approved by the department, unless a party proves by

a preponderance of the evidence that another plan is

a more feasible plan to adequately protect the envi-

ronment and the public health, safety, and welfare.”

LA. REv. STAT. ANN. § 30:29(C)(5) (2008). Further, the

trial court is accorded considerable discretion in the

implementation and oversight of the final feasible

plan.’

* The Act provides:

The court shall retain jurisdiction over the funds

deposited and the party or parties admitting respon-

sibility or the party or parties found legally

responsible by the court until such time as the

evaluation or remediation is completed. If the court

finds the amount of the initial deposit insufficient to

complete the evaluation or remediation, the court

shall, on the motion of any party or on its own motion,

order the party or parties admitting responsibility or

found legally responsible by the court to deposit

additional funds into the registry of the court. Upon

completion of the evaluation or remediation, the court

shall order any funds remaining in the registry of the

(Continued on following page)

17

The remediation damages remedy that existed in

Louisiana law during the pendency of Minvielle I -

and prior to the passage of Act 312 of 2006 — has, to a

significant degree, been replaced by a remedy that is

similar to mandatory injunctive and declaratory re-

lief. Accordingly, the present case is not a traditional

damages case where the only relief sought is non-

discretionary. Rather, there is considerable discretion

accorded the trial court in awarding the relief sought.

Thus, the “discretionary relief” requirement of Bur-

ford abstention is satisfied. Quackenbush, supra, 517

U.S. at 730.

Burford abstention has been denied in cases

where the plaintiff’s “sole” remedy is damages. I/d.;

Garamendi v. Allstate Ins. Co., 47 F.3d 350, 354 (9th

Cir. 1995). The remedy in the case sub judice is not

solely damages and is substantially equitable and

discretionary in nature. In fact, the trial judge’s adop-

tion of a particularly robust remediation plan might, in

some circumstances, swallow entirely the plaintiff’s

court to be returned to the depositor. The department

and the parties shall notify the court of the completion of

any evaluation or remediation

LA. REV. STAT. ANN. § 30:29(D\(4) (2008).

It continues: “The court and the department shall retain

oversight to ensure compliance with the plan. The party or

parties admitting responsibility or the party or parties found

legally responsible by the court shall file progress reports

periodically as the court or the department may require.” Jd

§ 30:29(F)

18

damage award. See generally LA. REv. STAT. ANN.

§ 30.29.

B. Louisiana’s strong interest in uniform

application of environmental standards

outweighs federal interest in having

diversity cases tried in federal court,

and exercise of federal jurisdiction

would potentially disrupt state statu-

tory scheme.

This Court has required federal courts to abstain

under Burford when the State’s interests in “main-

taining ‘uniformity in the treatment of an ‘essentially

local problem’ and retaining local control over ‘diffi-

cult questions of state law bearing on policy problems

of substantial public import’” outweigh “the strong

federal interest in having certain classes of cases, and

certain federal rights, adjudicated in federal court.”

Quackenbush, supra, 517 U.S. at 728. Louisiana’s in-

terest in maintaining uniformity in the application of

remediation standards in oilfield contamination cases

is reflected in the requirement that Louisiana envi-

ronmental standards he applied in the development

and implementation of the “feasible plan” adopted

pursuant the Louisiana Oilfield Remediation Act:

“Feasible Plan” means the most reasonable

plan which addresses environmental damage

in conformity with the requirements of Louisi-

ana Constitution Article [X, Section 1 to pro-

tect the environment, public health, safety

and welfare, and ts in compliance with the

19

specific relevant and applicable standards

and regulations promulgated by a state agency

in accordance with the Administrative Pro-

cedure Act in effect at the time of clean up to

remediate contamination resulting from oil-

field or exploration and production opera-

tions or waste.

LA. Rev. Stat. ANN. § 30:29(1)(3) (2008) (emphasis

added). The regulations adopted pursuant to the

Louisiana Oilfield Remediation Act are set forth in

Chapter 6 of Statewide Order 29-B. See generally LA.

ADMIN. CODE tit. 43, § 101. These regulations require

the application of the environmental standards set

forth in Statewide Order 29-B in the development of

feasible plans under the Louisiana Oilfield Remedi-

ation Act. See id. § 607.

The principal reasons for the enactment of the

Louisiana Oilfield Remediation Act were: (1) to

ensure that s/a/e environmental regulations are uni-

formly applied to the remediation of legacy oilfield

sites in Louisiana; and, (2) to ensure that the state

constitutional mandate to protect the public safety

and health is carried out. LA. Rev. Star. ANN.

§ 30:29(A), (C3) & (13) (2008). The “feasible plan”

mandated by the statute is the plan that both sat-

isfies state regulatory standards and “protect{s| the

environment, public health, safety and welfare” of

Louisiana citizens. /d. § 30:29(1\(3).

Additionally, and similar to the Texas statutory

permitting scheme in Burford, the Louisiana Oilfield

Remediation Act gives Louisiana a unified scheme for

20

review of its administrative orders rendered in

oilfield remediation cases. State district court review

of the LDNR’s orders relating to the feasible plan is

governed by a special statutory provision set forth in

the Act. Jd. § 30:29(C)(5). No final judgment can be

rendered in a remediation case without first sub-

mitting the case to the agency for review after the

trial on the merits in the district court. Jd. § 30:29(C).

Further, the normal appeals process in state court is

substantially modified in that the state intermediate

appellate court must conduct a de novo expedited

appeal and is empowered to render its own version

of the feasible plan if it deems the plans developed

by the court and the LDNR to be deficient. /d.

§ 30:29(C)(6)(b) & (c).

This type of appellate treatment is unavailable in

the federal system. Federal intervention in Louisiana’s

Louisiana Oilfield Remediation Act cases on grounds

of diversity would have a disruptive effect on the

Louisiana statutory scheme and on the state’s efforts

to establish a coherent policy on a matter of

substantial public concern.

C. State participation as an intervening

party would cause further disruption.

The Louisiana Oilfield Remediation Act accords

the State the right to intervene in this proceeding.

LA. Rev. Stat. ANN. § 30:29(B\2) (2008). The State

has the option to intervene before the merits trial,

during the agency proceeding (to seek a declaratory

21

ruling by the judge), or prior to the post-trial con-

tradictory hearings wherein the court determines the

final remediation plan. Also, the State might inter-

vene at the conclusion of the case to seek its fees and

costs. Id. § 30:29(E)(2). In other words, the State can

intervene at any time. If the State does decide to

intervene, the federal district court would lose its

jurisdiction because a state cannot be a citizen of

itself for diversity purposes. Postal Telegraph Cable

Co. v. Alabama, 155 U.S. 482 (1894). It would

constitute a waste of judicial resources for the district

court to hear a substantial part of a remediation case

only to find that it cannot complete the case due to

the State’s decision to intervene at the latter stages of

the proceeding.”

D. Abstention should result in remand.

If this Court determines that Burford abstention

applies, this case must be remanded to state court.

Melahn v. Pennock Ins., Inc., 965 F.2d 1497, 1501 (8th

Cir. 1992); see also 17A CHARLES ALAN WRIGHT &

* This risk of a late intervention by the State is not merely

theoretical. For instance, the case captioned Thomas v. Ashley

Inv. Co., Docket No. 38839, (5th Jud. Dist. Ct. for Richland

Parish, LA), was filed on November 17, 2005. The State

intervened recently, after 55 depositions had been taken and the

case had been pending for three and a half years.

22

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE

§ 4245 (3d ed.).

CONCLUSION

Minvielle had standing in Minvielle II to assert

the claims of the Cowans that were assigned to Min-

vielle after Minvielle I was dismissed without preju-

dice. The district court in Minvielle I determined that

under Louisiana law, the Cowans, not Minvielle, had

the mght to claim remediation damages. Therefore,

the judgment in Minvielle I cannot logically preclude

the assertion of the Cowans’ claims by Minvielle in

Minvtelle 11.

Further, if Minvielle had no standing to assert

the claims of the Cowans, the district court did not

have jurisdiction to dismiss the case. A lack of

justiciability requires remand even in cases where it

is likely that the state court on remand will dismiss

the case. The Fifth Circuit’s reliance on the doctrine

of ancillary jurisdiction was misplaced, as the fruits

and advantages of the district court’s judgment in

Minvielle I do not include the preclusion of claims

that were never asserted in Minvielle I.

23

Finally, this case should have been remanded on

the basis of Burford abstention.

Respectfully submitted,

VicToR L. MARCELLO

Counsel of Record

TALBOT, CARMOUCHE & MARCELLO

P.O. Box 759

Gonzales, LA 70707-0759

(225) 644-7777

PATRICIA E. WEEKS

JOHN P. GONZALEZ

WEEKS & GONZALEZ, APLC

400 Magazine Street, Suite 200

New Orleans, LA 70130-2444

(504) 799-2888

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30399

FRANK C MINVIELLE LLC

Plaintiff-Appellant

v.

ATLANTIC REFINING CO, formerly known as

Atlantic Richfield Co; OXY USA INC, formerly known

as Cities Service Oil Co; PACIFIC ENTERPRISES

OIL CO (USA), formerly known as Sabine Production

Co Inc; MOSAIC GLOBAL OPERATIONS INC,

formerly known as IMC Global Operations Inc

Defendants-Appellees

Appeal from the United States District Court

for the Western Distmct of Louisiana

USDC No. 6:05-cev-1312

(Filed Jul. 24, 2009)

Before JOLLY, PRADO, and SOUTHWICK, Circuit

Judges.

PER CURIAM:*

* Pursuant to 5TH CiR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

(Continued on following page)

App. 2

Plaintiff-Appellant Frank C. Minvielle, LLC

(“Minvielle”) appeals the district court’s order award-

ing summary judgment to Defendants-Appellees

Atlantic Refining Co. (“Atlantic Refining”), OXY USA,

Inc. (“Oxy”), Pacific Enterprises Oil Co. (“Pacific Oil”),

and Mosaic Global Operations, Inc. (“Mosaic”) (collec-

tively “Appellees”) on the ground of res judicata. For

the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACK-

GROUND

A. Factual Background

This appeal arises from the second of two

lawsuits in which Minvielle has asserted materially

identical claims for alleged environmental damage

stemming from a nearly fifty-year-old oil lease.

In September 1961, Juliet Bourgeois Delcambre

(“Delcambre”) entered into an oil, gas, and mineral

lease (the “1961 lease”) with Atlantic Refining to

explore and drill for oil on land that she owned in

Ioeria Parish, Louisiana (“the property”). Pursuant to

the lease, a well was drilled on the property, and

various companies operated the well according to the

terms of an Operating Agreement between Atlantic

Refining and the other companies. Appellees in this

case are former parties to or the assignees and/or

except under the limited circumstances set forth in STH Cir. R.

47.5.4

App. 3

successors-in- interest of the parties to _ this

agreement.

In 1974, Petro-Lewis Funds, Inc. (“Petro-Lewis”)

purchased an interest in the property and became the

operator of the well. In December 1977, it plugged

and abandoned the well and the lease expired. When

Delcambre died over a decade later, her daughter and

grandchildren (“the Cowans”) inherited the property.

In 1998, the Cowans sold the property to Minvielle &

Segura, LLC by an Act of Cash Sale, retaining a one-

half mineral interest. In November 2001, Frank C.

Minvielle acquired full ownership of Minvielle &

Segura, LLC and changed its name to Frank C.

Minvielle, LLC.

B. Minvielle I

In August 2003, Minvielle sued, among others,

IMC Global Operations, Inc. (“IMC”) — Petro-Lewis’s

successor and Mosaic’s predecessor — in Louisiana

state court, bringing both contract and tort claims for

alleged contamination of the property. The defen-

dants removed to the Western District of Louisiana

on the basis of diversity, see Frank C. Minvielle,

L.L.C. v. IMC Global Operations, Inc. (Minvtelle 1),

380 F. Supp. 2d 755 (W.D. La. 2004), after which all

remaining defendants except IMC were dismissed.

IMC filed various motions to dismiss, including one

under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim, which the district court

converted to a motion for summary judgment. The

App. 4

court granted the motion. As to the contract claims,

the court explained that under Louisiana law the

right to sue for the property damage is a personal

right, and it found both that Minvielle did not receive

an assignment of the right to sue for prior damages

from the Cowans at the time of the sale and that the

1961 lease did not create a stipulation pour autrie in

Minvielle’s favor. Jd. at 766, 770. It therefore held

that Minvielle lacked standing to bring the contract

claims against IMC. Id. at 770. As to the tort claims,

the court noted that under Louisiana law, “the owner

of land at the time of the alleged damages is the

person with the real and actual interest to assert the

claim for damages to the land,” id. at 770, and that

Minvielle sought damages arising from operations

that occurred prior to its purchase of the property, !d.

at 772. Accordingly, it found that Minvielle lacked

standing to bring the tort claims against IMC.’ Jd.

Minvielle moved for reconsideration, arguing

that at the time of the 1998 Act of Cash Sale, the

Cowans intended to convey all rights to Minvielle &

Segura, including the right to sue for past damages to

the property. In support, Minvielle asserted that it

had procured an amendment to the Act of Cash Sale

|

On the same day that the court granted [MC's motion for

summary judgment, IMC filed a third-party complaint against

Atlantic Refining, Oxy, and Pacific Oil, among others, asserting

claims for contribution on the ground that each was a former

party to or successor-in-interest of a party to the Operating

Agreement. Because of the court’s decision in its favor, however,

IMC never served this complaint

App. 5

reflecting this purported agreement, and it informed

the court that it would file the document with the

court. Minvielle, however, never filed the purported

amendment. On January 12, 2005, the district court

denied Minvielle’s motion for reconsideration, reit-

erating its previous ruling and noting that Minvielle

had neither amended the Act of Cash Sale nor

demonstrated that a Louisiana court would allow

such an amendment. Minvielle did not appeal the

judgment, and it became final.

C. Minvielle II

In June 2005, Minvielle again filed suit in

Louisiana state court, alleging claims identical to

those in Minvielle I, against, among others, Atlantic

Refining — an original party to the 1961 lease — and

IMC, Oxy, and Pacific Oil, each of which it concedes is

a successor-in-interest by sublease or assignment of

the 1961 lease. Mosaic was substituted for LMC, and

it removed the case to the Western District of

Louisiana on the basis of diversity. See Frank C.

Minvielle, LLC v. Atl. Ref. Co. (Minvielle II), Civil

Action No. 05-1312, 2007 WL 2668715 (W.D. La. Sept.

6, 2007). Minvielle expressly stated in its complaint

that the claims in this suit were identical to those in

Minvielle I and further agreed with the district court

that “there’s nobody who sits at the table in

[Minvielle II| that didn’t sit [at] the table [in

Minvielle 1}.” However, Minvielle argued that it now

had standing to assert its claims because, after the

final judgment in Minvielle J. it executed an

bn)

App. 6

amendment to the Act of Cash Sale — the same

purported amendment discussed in Minvielle I

which provided that the parties to that agreement

intended to assign to Minvielle the right to sue for

previous damage to the property. Notably, the alleged

amendment, by its very terms, did not amend the Act

of Cash Sale or confer any new rights upon Minvielle;

rather, as Minvielle acknowledged, it purported only

to clarify the original intentions of the parties to the

agreement. Minvielle nonetheless argued that the

amendment gave it standing to sue.

Appellees moved to dismiss on the ground of res

judicata, arguing that Minvielle could not relitigate

the question of its standing to assert contract and tort

claims against them, as this was the exact same issue

the court decided in Minvielle I. The district court

converted the motion into one for summary judgment

and granted it. In so doing, the district court

explained that “[t|he claims asserted are identical to

those asserted in Minvielle I, there is commonality of

parties, and the court’s jurisdictional ruling in

Minvielle I is a final and valid judgment.” Jd. at *7." It

* Under Louisiana law, an actual amendment attempting to

change the original agreement would have been ineffective. See

Lejuene Bros. v. Goodrich Petroleum Co., 981 So. 2d 23, 31 (La.

Ct. App. 2007) (noting “Louisiana’s longstanding rule that the

right to damages conferred by a lease is a personal right that

must be specifically assigned at the time of sale”)

~ Although the district court’s opimon in Minvielle II

analyzes only the question of Minvielle I's res judicata effect on

(Continued on following page)

App. 7

further noted that the amendment to the Act of Cash

Sale — which by its terms did not convey new rights

and which even Minvielle’s counsel acknowledged

was merely an “act of correction” and “clarification” —

did not cure the res judicata effect of the Minvielle 1

judgment. See id. at *6.

II. JURISDICTION AND STANDARD OF

REVIEW

At oral argument, Minvielle challenged, for the

first time, the subject-matter jurisdiction of the

district court in Minvielle J and IJ and of this court in

this appeal, and we ordered supplemental briefing.

Having reviewed the briefing, we find Minvielle’s

contentions to lack merit.

As a preliminary matter, although the district

court in Minvielle I certainly had jurisdiction to

determine its own jurisdiction, see United States v.

Minvielle 11, the court appears to have ruled for Appellees on two

grounds:

Accordingly, defendants’ motions for summary judg-

ment based on res judicata are GRANTED. Because

the Minvielle I finding that plaintiff did not have

standing has res judicata effect, the court in the

instant case does not have subject matter jurisdiction

Minvielle IT, 2007 WI, 2668715, at *7. Given that the district

court addressed the entirety of its opinion to the question of res

judicata and expressly granted Appellees’ motion on that

ground, we agree with Appellees that the court's single mention

of jurisdiction in its concluding statement can be disregarded as

erroneous and unnecessary dicta.

App. 8

Ruiz, 536 U.S. 622, 628 (2002); Habetz ex rel. Habetz

v. La. High Sch. Athletic Ass’n, 915 F.2d 164, 167 (5th

Cir. 1990), Minvielle challenges the propriety of

removal in Minvielle I, arguing that the case should

have been remanded to state court. The Supreme

Court has explained, however, that “[a] party that has

had an opportunity to litigate the question of subject-

matter jurisdiction may not... reopen that question

in a collateral attack upon an adverse judgment. It

has long been the rule that principles of res judicata

apply to jurisdictional determinations — both subject

matter and personal.” Ins. Corp. of Ir. v. Compagnie

des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982);

cf. Royal Ins. Co. of Am. v. Quinn-L Capital Corp.,

960 F.2u 1286, 1293 (5th Cir. 1992) (“If the parties

against whom judgment was rendered did not appeal,

the judgment becomes final and the court’s subject

matter jurisdiction is insulated from collateral

attack.”) This is true even if the earlier judgment was

incorrect. See Federated Dep't Stores, Inc. v. Moitie,

452 U.S. 394, 398 (1981) (“Nor are the res judicata

consequences of a final, unappealed judgment on the

merits altered by the fact that the judgment may

have been wrong or rested on a legal principle

subsequently overruled in another case.”). If the

Minvielle I court should have remanded rather than

granted summary judgment, its judgment could have

been reversed on appeal, but Minvielle chose not to

appeal. Accordingly, the judgment became final and is

now insulated from Minvielle’s collateral attack. See

Des Moines Navigation & R.R. Co. v. lowa Homestead

Co., 123 U.S. 552, 559 (1887).

App. 9

The district court also had jurisdiction in

Minvielle II. As we have explained,

It is well settled that a federal district court

can exercise ancillary jurisdiction over a

second action in order to secure or preserve

the fruits and advantages of a judgment or

decree rendered by that court in a prior

action. Such jurisdiction is appropriate

where the effect of an action filed in state

court would effectively nullify the judgment

of a prior federal action. This is true even

where the federal district court would not

have jurisdiction over the second action if it

had been brought as an original suit.

Royal Ins. Co. of Am., 960 F.2d at 1292 (citations,

alteration, and internal quotation marks omitted).

This is precisely the case here. Notwithstanding

Minvielle’s attempt to frame the issue below as a

question of standing, the issue was simply one of res

judicata — whether the court’s Minvielle J decision

precluded Minvielle from arguing that it has standing

to sue for the alleged environmental damages in

Minvielle ll. The question of standing is precisely the

question that Minvielle 1 addressed, and there have

been no changed circumstances that would warrant

bypassing the bar of res judicata. Minvielle’s second

suit, if successful, would nullify the district court’s

judgment in Minvielle J. Thus, the Minvielle I] court

properly had ancillary jurisdiction to preserve the

effect of its Minvielle J judgment.

App. 10

We have jurisdiction over the district court’s final

order granting Appellees summary judgment under

28 U.S.C. § 1291." “We review the district court’s

grant of summary judgment de novo, applying the

same legal standards as the district court.” Aubris

Res. LP v. St. Paul Fire & Marine Ins. Co., 566 F.3d

483, 486 (5th Cir. 2009). “The res judicata effect of a

prior judgment is a question of law that we review de

novo.” Davis v. Dallas Area Rapid Transit, 383 F.3d

309, 313 (5th Cir. 2004)

Lil. DISCUSSION

A. Choice of Law

Although each appellee moved to dismiss

Minvielle I on the basis of res judicata, the parties do

not appear to agree on whether Louisiana or federal

res judicata law applies Under our pre-2001

In its supplemental briefing, Minvielle argues for the first

time that this court should abstain from exercising its

jurisdiction under Burford v. Sun Oil Co., 319 U.S. 315 (1943)

As the issue on appeal is simply the res judicata effect of a prior

judgment, however, Burford abstention is inapplicable. To the

extent that Minvielle secks to collaterally attack the final,

unappealed judgment in Minvielle / on this ground, we reject its

argument as untimely

Atlantic Refining does not differentiate between federal!

and Louisiana res judicata law, Mosaic argues that Louisiana

law applies, Oxy and Pacific argue that Louisiana law applie

but, alternatively, that federal res judicata law shovwld apply, and

Minvielle argues that the court should look to Louisiana law

The district court, without much discussion, applied Louisiana

res judicata law

App. 11

precedent, federal res judicata law would clearly

apply. See Mowbray v. Cameron County, 274 F.3d 269,

281 (5th Cir. 2001) (“We apply federai law to

determine the preclusive effect of a federal judgment,

even if that judgment was based on state law.”) How-

ever, in Semtek International Inc. v. Lockheed Martin

Corp., 531 U.S. 497 (2001), the Supreme Court sug-

gested that state res judicata law, incorporated as

federal common law, should apply. There, the Court

held that “federal common law governs the claim-

preclusive effect of a dismissal by a federal court

sitting in diversity,” but it adopted “as the federally

prescribed rule of decision, the law that would be

applied by state courts in the State in which the

federal diversity court sits.” /d. at 508. As we have

explained, the Semtek Court held “that while federal

law ultimately determines whether a _ federal

judgment precludes a subsequent action or argument,

when the basis of the original court’s jurisdiction is

diversity of citizenship, federal courts should apply

the law of the forum state unless the state law is

incompatible with federal interests.” Am. Home As-

surance Co. v. Chevron, USA, Inc., 400 F.3d 265, 271

n.20 (5th Cir. 2005) (citing Semtek, 531 U.S. at 508).

But see Harper Macleod Solicitors v. Keaty & Keaty,

260 F.3d 389, 396 n.7 (5th Cir. 2001) (“Sermtek did not

address the role of state law in determining the pre-

clusive effect of jurisdictional findings made by a

federal court sitting in diversity.”).

App. 12

In this case, however, we need not weigh the

effect of Semtek, as Louisiana courts “‘have repeat-

edly confirmed that federal law is applicable to con-

sideration of whether a federal court judgment has

res judicata effect.” Jones ex rel. Jones v. GEO

Group, Inc., 6 So. 3d 1021, 1025 (La. Ct. App. 2009)

(quoting Green v. Iberia Par. Sch. Bd., 945 So. 2d 940,

943 (La. Ct. App. 2006)). Thus, whether we look to

Louisiana law or federal law to provide the rule of

decision, the result is the same: federal res judicata

law applies.

B. Res Judicata

Under federal law, the test for res judicata

contains four elements:

(1) the parties are identical or in privity;

(2) the judgment in the prior action was

rendered by a court of competent juris-

diction; (3) the prior action was concluded by

a final judgment on the merits; and (4) the

same claim or cause of action was involved in

both actions.

Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559,

571 (5th Cir. 2005) (citing Petro-Hunt, L.L.C. v.

United States, 365 F.3d 385, 395 (Sth Cir. 2004)).

Here, the second and fourth elements are not in dis-

pute. Both Minuvielle I and II] arise out of the same

alleged breaches of contract and tortious conduct,

Minvielle expressly admits that its claims in Min-

vielle I and JI are identical, and, as explained above,

App. 13

Minvielle cannot now challenge the jurisdiction of the

district court in Minvielle I, which certainly had

jurisdiction to determine its own jurisdiction. See

Ruiz, 536 U.S. at 628: Habetz, 915 F.2d at 167. The

only elements that Minvielle challenges are the first

and third elements: whether the judgment in Min-

vielle I, which was final and unappealed, was a judg-

ment on the merits, and whether the parties to each

case are identical or in privity. Both challenges lack

merit.

1. Judgment on the Merits

Minvielle first asserts that the Minvielle I deci-

sion was not a judgment on the merits. Although it is

technically correct, this does not preclude application

of res judicata in this case. In Minvielle I, the district

court granted IMC summary judgment based upon

Minvielle’s lack of standing, a jurisdictional issue.

Cobb v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006)

(“(T\lhe issue of standing is one of subject matter

jurisdiction. ...”). Although a jurisdictional ruling is

technically not an adjudication on the merits, “[{i]t has

long been the rule that principles of res judicata

apply to jursdictional determinations — both subject

matter and personal.” /ns. Corp. of Ireland, 456 U.S.

at 702 n.9; accord Beiser v. Weyler, 284 F.3d 665, 673

(5th Cir. 2002). As we have explained,

Although the dismissal of a complaint for

lack of jurisdiction does not adjudicate the

merit sc as to make the case res judicata on

the substance of the asserted claim, it does

App. 14

adjudicate the court’s jurisdiction, and a

second complaint cannot command a second

consideration of the same _ jurisdictional

claims.

Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (per

curiam). Thus, because the unappealed Minvielle J

judgment — which adjudicated the question of Min-

vielle’s standing to bring the claims it now asserts — is

unquestionably final, it satisfies this res judicata

requirement.

2. Identity of the Parties

Notwithstanding its previous agreement that

“there’s nobody who sits at the table in [Minvtelle IT]

that didn’t sit [at] the table in [Minvielle [],” Min-

vielle argues on appeal! that res judicata cannot apply

to Atlantic Refining, Oxy, and Pacific Oil, because

they were not parties to Minvielle J." Res judicata

applies only when the parties in the second suit are

identical to or in privity with the parties in the first

suit. Jest Masters Educ. Servs., Inc., 428 F.3d at 571.

Notably, as the Supreme Court recently reaffirmed in

Taylor v. Sturgell, 128 S. Ct. 2161 (2008), the parties

need not actually be identical: “nonparty preclusion

may be justified based on a variety of pre-existing

‘substantive legal relationship[s}’ between the person

to be bound and a party to the judgment. Qualifying

* Minvielle concedes that IMC, now Mosaic, was a party in

both Minvielle I and IT

App. 15

relationships include, but are not limited to, preced-

ing and succeeding owners of property . .. and assignee

and assignor.” Id. at 2172 (alteration in original, cita-

tions omitted).

Here, Minvielle expressly concedes in its brief

that “IMC (Mosaic), Oxy, and Pacific are successors-

in-interest by sub-lease or assignment of the original

1961 mineral lease between Delcambre and [Atlantic

Refining].” It thus admits that Oxy and Pacific Oil

are succeeding owners of property and/or assignees,

and that Atlantic Refining is a preceding owner of

property and/or assignor. Therefore, although Oxy,

Pacific Oil, and Atlantic Refining were not parties to

Minvielle I, the identity-of-the-parties requirement of

res judicata is met.

Accordingly, all four elements required for res

judicata to apply are satisfied, and the district court

properly held the judgment in Minvielle I to be res

judicata on this second suit.

IV. CONCLUSION

For the reasons stated above, we hold that the

district court properly granted Appellees’ motion for

summary judgment on the basis of res judicata. We

therefore AFFIRM the judgment of the district court.

AFFIRMED.

App. 16

E. GRADY JOLLY, Circuit Judge, specially con-

curring:

I am happy to concur. The standing issue in these

cases has always referred to the lack of statutory

standing under Louisiana law because of the failure

of the plaintiff to demonstrate a cognizable interest in

the res at issue. The standing issue never constituted

a challenge to the personal or subject-matter juris-

diction of the federal court. Consequently, it is quite

correct to say that Minvielle I] was a decision on the

merits of the plaintiff’s claim, that the case now

before us is identical in all relevant respects to

Minvielle I, and that res judicata is a bar to this case.

App. 17

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30399

D.C. Docket No. 6:05-CV-1312

FRANK C MINVIELLE LLC

Plaintiff-Appellant

V.

ATLANTIC REFINING CO, formerly known as

Atlantic Richfield Co; OXY USA INC, formerly known

as Cities Service Oil Co; PACIFIC ENTERPRISES

OIL CO (USA), formerly known as Sabine Production

Co Inc; MOSAIC GLOBAL OPERATIONS INC,

formerly known as IMC Global Operations Inc

Defendants-Appellees

Appeal from the United States District Court for the

Western District of Louisiana, Lafayette

Before JOLLY, PRADO, and SOUTHWICK, Circuit

Judges.

JUDGMENT

(Filed Jul. 24, 2009)

This cause was considered on the record on

appeal and was argued by counsel.

It is ordered and adjudged that the judgment of

the District Court 1s affirmed.

App. 18

IT IS FURTHER ORDERED that plaintiff-

appellant pay to defendants-appellees the costs on

appeal to be taxed by the Clerk of this Court.

E. GRADY JOLLY, Circuit Judge, specially con-

curring:

ISSUED AS MANDATE: SEP 15 2009

App. 19

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

FRANK C. MINVIELLE, LLC CIVIL ACTION

VS. NO. 05-1312

ATLANTIC REFINING CO. SEat eens

OXY USA, INC.

PACIFIC ENTERPRISES Si al

OIL CO. MOSAIC GLOBAL

OPERATIONS, INC.

MEMORANDUM RULING ON MOTIONS

FOR SUMMARY JUDGMENT

(Rec. Docs. 29, 35, 41, and 51)

(Filed Sep. 6, 2007)

Before the court are four motions for summary

judgment filed by defendants Atlantic Refining Com-

pany (“ARCO”), Oxy USA, Inc. (“Oxy”), Pacific Oil

Company (“Pacific”) and Mosaic Global Operations,

Inc. (“Mosaic”) (collectively referred to as “movers”).’

Plaintiff, Frank C. Minvielle, LLC filed an opposition

and movers filed replies.”

' Rec. Docs. 29, 35, 41 51

~ Rec Docs. 456, 63, 65

App. 20

Factual Background

The underlying facts of the case involve an Oil,

Gas and Mineral Lease (hereinafter referred to as the

“1961 lease”) entered into on September 28, 1961, by

ARCO and Juliet Bourgeois Delcambre, a previous

owner of the land at issue, located in Iberia Parish.

ARCO subsequently subleased the mineral rights to

Callery Properties, Inc., which in turn conveyed its

interest in the land to another company. The con-

veyances and subleasing continued, leaving a long list

of oilfield companies having had some connection to

the land at issue. During this time, movers also

operated oil and gas exploration and/or production

activities on the property.

In 1998, plaintiff’s predecessor, Minvielle &

Segura, L.L.C. purchased the land by Act of Cash

Sale (“1998 Act of Cash Sale”). On November 30,

2001, Frank C. Minvielle acquired all ownership of

Minvielle & Segura, L.L.C., and shortly thereafter

changed its name to Frank C. Minvielle, L.L.C.,

plaintiff in this action.

Previous Litigation — Minvielle I

On August 27, 2003, plaintiff filed suit in the

16th Judicial District Court alleging that the land in

question was contaminated or otherwise damaged by

App. 21

oil and gas exploration and production activities.’

Plaintiff named as defendants IMC Global Opera-

tions, Inc. (“IMC”), Encana Midstream, Inc., Estis

Well Service, L.L.C., and Transok, Inc. The case,

hereinafter referred to as “Minvielle I,” was removed

to this court on October 15, 2003 pursuant to di-

versity jurisdiction under 28 U.S.C. § 1332.

The only defendant remaining in the case is

IMC.* IMC filed a third-party complaint against

ARCO, Oxy, Pacific, Edwin Cox, and William Dick,

alleging that the third-party defendants were former

parties to, or successors-in-interest to the original

parties to the 1961 Lease.

IMC filed several motions to dismiss, including

one seeking dismissal based on plaintiff’s lack of

standing to assert contractual claims arising from the

1961 lease and tort claims arising prior to plaintiff’s

purchase of the land. Plaintiff responded that it had

standing because it was a third party beneficiary the

contract (a stipulation pour autrui) and because tort

damages can be brought regardless of the timing of

the damages.

’ See Minvielle v. IMC et al, 03CV1908, Rec. Doc. 1,

Paragraphs 1 and 3.

* Estis Well Wervice, L.L.C. was dismissed on February 2,

2002, on a finding of fraudulent joinder. Transok, Inc. was dis-

missed on February 20, 2004, for plaintiff's failure to prosecute,

and Encana was dismissed with prejudice on plaintiff's own

motion. See Minvielle 1, O3CV1908, Ree Docs. 55, 9A

App. 22

On October 19, 2004, this court dismissed

plaintiff’s claims for lack of standing.” The ruling was

based on a finding that the 1998 cash sale did not

confer on plaintiff a specific assignment of rights to

recover damages from third parties, nor did the 1961

lease create a stipulation pour autrui in favor of

plaintiff. The court concluded that plaintiff lacked

standing to bring contractual claims arising from the

1961 lease. As to the tort claims, the court also con-

cluded that plaintiff lacked standing because plaintiff

was seeking damages arising from operations which

occurred prior to plaintiff’s acquisition of the land.

Plaintiff filed a motion for reconsideration,

arguing that to the extent the 1998 cash sale was

deficient, it would be amended to include the transfer

of property rights to plaintiff. On January 12, 2005,

the court denied plaintiff’s motion, noting that plain-

tiff had not yet amended the 1998 Act of Cash Sale,

nor had plaintiff established that such an amendment

would properly convey standing.” Accordingly, plain-

tiff’s case was dismissed and plaintiff did not appeal

the judgment.

Instant Suit —- Minvielle Il

On June 20, 2005, plaintiff filed suit in the 16th

Judicial District Court for the Parish of Iberia,

alleging the same claims arising from the 1961 lease

* See Minvielle I, 083CV1908, Rec. Does. 104, 105

* See Minvielle I, O8CV1908, Rec. Doc. 113

App. 23

as Minvielle |. Plaintiff named as defendants IMC,

ARCO, Oxy, Pacific, Pioneer Production Corporation,

Edwin L. Cox, and William J. Dick. Defendants

Pioneer, Cox, and Dick were dismissed for plaintiff’s

failure to prosecute. Defendant Mosaic has been

substituted for IMC, as its successor in interest.

The petition addresses the previous ruling by

this court regarding standing, and the subsequent

Amendment to Act of Cash Sale executed by the

Cowans and plaintiff:

15.

In 2003, plaintiff filed suit against IMC

Global Operations, Inc., making claims iden-

tical to those brought herewith. That suit,

captioned Frank C. Minvielle, L.L.C. v. IMC

Global Operations, Inc., et al was removed to

the United States District Court for the

Western District of Louisiana (Civil Action

No. 03-1908). In that suit, Magistrate Judge

Mildred E. Methvin dismissed plaintiff’s

suit. She found that the 1998 act of sale from

the Cowans to plaintiff did not include a

specific assignment of rights to recover from

third parties for damage done to the property

prior to plaintiff's acquisition, and therefore

plaintiff lacked standing to bring a resto-

ration claim in contract or in tort. /d., Judg-

ment and Memorandum Opinion ~ Ruling on

Motions (October 19, 2004).

App. 24

16.

By Amendment to Act of Cash Sale the

Cowans and plaintiff specified:

Sellers and each of them declared further

that they did by virtue of the Act of Cash

Sale, dated August 27, 1998, et seq., accepted

by Purchaser September 18, 1998, .. . assign,

convey, sell, transfer and deliver, less the

undivided one-half ('2) of the oil, gas and

other minerals, including sulphur, reserved

and retained, all of their right, title, claim,

interest, demand, surface and subsurface,

real, personal and mixed, movable, immov-

able, corporeal and incorporeal, including

claims for damages suffered by the afore

described tracts of land prior to September

18, 1998.

The suit filed in the 16th JDC was removed to

this court on July 22, 2005. Subsequently movers

filed the following motions:

l Rule 12(b1) Motion Requesting Defer-

ence to the Primary Concurrent Juris

diction of the Louisiana Office of Con

servation (“LOC”) and the Louisiana

Department of Environmental Quality

(“DEQ”);

Rex Dur ]

Rec. Docs. 41. 35. 51

App. 25

2. Rule 12(b)(1) and/or 12(b)(6) motion to

dismiss premature claims;

3. Rule 12(e) motion for more definite

statement:””

4. Motion for compliance with Rule 20 and

21 regarding improper joinder;’

5. Rule 12(b)(7) motion dismiss for failure

to join indispensable parties;

6. Rule 12(b)(6) motion to dismiss for fail-

ure to state a claim for lack of standing,

nonrecoverable damages, unjust enrich-

ment, and prescription;

Rule 12(b)(6) motion to dismiss claims as

barred under res judicata.”

~]

The 12(b)(6) motions (Paragraphs 6 and 7 above)

were converted to motions for summary judgment

since their disposition required reference to docu-

ments outside of the complaint.

Motion for Summary Judgment

The Federal Rules of Civil Procedure provide for

summary judgment where no genuine issue as to any

Rec. Docs. 41, 35

Rec. Docs. 41, 35, 51

Rec. Does. 35, 51

Rec. Docs. 35, 51

Rec. Docs. 41, 35, 51

* Rec. Does. 29, 41, 35, 51

?

App. 26

material fact exists. Fed.R.Civ.P. 56(c). The threshold

inquiry is whether there are any genuine factual

issues that properly can be resolved only by a finder

of fact because they may reasonably be resolved in

favor of either party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d

202 (1986). Of course, the substantive law will iden-

tify which facts are material. 7d. All of the evidence

must be reviewed in the light most favorable to the

motion’s opponent. Jd. However, the Fifth Circuit has

emphasized that summary judgment should be

granted and will be affirmed when the nonmoving

party fails to meet its burden to come forward with

facts and law demonstrating a basis for recovery that

would support a jury verdict. Little v. Liquid Air

Corp., 37 F.3d 1069, 1071 (5th Cir. 1994).

Analysis

Although a litany of motions have been filed, the

initial inquiry must be whether res judicata applies

to this court’s previous ruling that plaintiff lacks

standing.

Res Judicata

Movers argue that the ruling in Minvielle I that

plaintiff lacked standing to bring the claims was a

finding that the court did not have subject matter

jurisdiction, and is res judicata.

App. 27

“Federal common law governs the _ claim-

preclusive effect of a dismissal by a federal court

sitting in diversity.” Semtek Intl Inc. v. Lockheed

Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 1028, 149

L.Ed.2d 32 (2001). Accordingly, federal courts apply

the law of the forum state, unless the state’s law is

incompatible with federal interests, when the basis of

the court’s jurisdiction was diversity of citizenship.

American Home Assurance Co. v. Chevron, USA, Inc.,

400 F.3d 265, 271 n. 20 (5th Cir.2005). “The purpose

of both federal and state law on res judicata is

essentially the same; to promote judicial efficiency

and final resolution of disputes by preventing need-

less re-litigation.” Terrebonne Fuel & Lube, Inc. v.

Placid Ref. Co., 95-654, p. 11 (La.1/16/96), 666 So.2d

624, 631.

In the case at bar, the Court, as a court sitting in

diversity, applies Louisiana law to determine the pre-

clusive effect of its prior judgments. Under Louisiana

law, the phrase “res judicata” includes both claim pre-

clusion (traditional res judicata) and issue preclusion

(collateral estoppel). Hudson v. City of Bossier, 33,620,

p. 7 (La.App.2d Cir.8/25/00), 766 So.2d 738, 743, writ

denied, 00-2687 (La.11/27/00), 775 So.2d 450. Claim

preclusion precludes the parties from relitigating.,

matters that were or could have been raised in that

action. Issue preclusion or collateral estoppel, how-

ever, precludes relitigation of an issue that has al-

ready been decided by the court in a previous action.

“Thus, res judicata used in the broad sense has two

different aspects: (1) foreclosure of relitigating matters

App. 28

that have never been litigated, but should have been

advanced in the earlier suit; and (2) foreclosure of

relitigating matters that have been previously liti-

gated and decided.” /d.

Louisiana Revised Statute § 13:4231 provides:

Except as otherwise provided by law, a valid

and final judgment is conclusive between the

same parties, except on appeal or other di-

rect review, to the following extent: ...

(2) If the judgment is in favor of the de-

fendant. all causes of action existing at the

time of final judgment arising out of the

transaction or occurrence that is the subject

matter of the litigation are extinguished and

the judgment bars a subsequent action on

those causes of action.

(3) Ajudgment in favor of either the plain-

tiff or the defendant is conclusive, in any

subsequent action between them, with re-

spect to any issue actually litigated and de-

termined if its determination was essential

to that judgment.

Thus, “a second action is precluded when al] of

the following are satisfied: (1) the judgment is valid;

(2) the judgment is final; (3) the parties are the same;

(4) the cause or causes of action asserted in the

second suit existed at the time of final judgment in

the first htigation; and (5) the cause or causes of

action asserted in the second suit arose out of the

transaction or occurrence that was the subject matter

App. 29

of the first litigation.” Burguieres v. Pollingue, 843

So.2d 1049, 1053, 2002-1385 (La.. 2003).

Valid and final judgment

Plaintiff asserts that the judgment in Minvielle I

cannot form the basis for a res judicata ruling in this

case because the judgment was not a final judgment

on the merits of the case, but rather was a ruling

limited to whether there was a deficiency of parties.

The judgment dismissing Minvielle I specifically

granted defendants’ motions for summary judgment

“for [plaintiff’s] failure to state contractual! and tort

claims due to lack of standing.””

It is well settled that unless a plaintiff has

standing, a federal district court lacks subject matter

jurisdiction to address the merits of the case. In the

absence of standing, there is no “case or controversy”

between the plaintiff and defendant which serves as

the basis for the exercise of judicial power under

Article III of the constitution. Warth v. Seldin, 422

U.S. 490, 498-499, 95 S.Ct. 2197, 2206 (1975). “In es-

sence the question of standing is whether the litigant

is entitled to have the court decide the merits of the

dispute or of particular issues.” Warth v. Seldin, 422

U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 348 (1975).

Thus, standing must be inquired inte as part of the

court’s determination of whether it has subject matter

Rec. Doc. 105

App. 30

jurisdiction. Golding v. Bartholow, 166 F.3d 710 (5th

Cir. 1999). If the court finds that it lacks subject mat-

ter jurisdiction, it has a duty to dismiss the case.

Fed.R.Civ.P. 12(h)(3). Standing, therefore, determines

the courts’ “fundamental power even to hear the suit.”

Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d

383, 386 (5th Cir. 2003) citing Ford v. Nylcare Health

Plans, Inc., 301 F.3d 329, 333 (5th Cir.2002).

Thus, under the applicable law, the determina-

tien in Minvielle I that plaintiff did not have standing

was equivalent to a finding that the court lacked

subject matter jurisdiction.

Although a dismissal for lack of jurisdiction is

not a ruling on the merits of the claim, both Louisi-

ana and federal law hold that the “principles of res

judicata apply to jurisdictional determinations.” J/n-

surance Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 702 n. 9, 102 S.Ct.

2099, 72 L.Ed.2d 492 (1982): see also Boone v. Kurtz,

617 F.2d 435, 436 (5th Cir.1980) (“Although the dis-

missal of a complaint for lack of jurisdiction does not

adjudicate the merit[s] so as to make the case res

judicata on the substance of the asserted claim, it

does adjudicate the court’s jurisdiction, and a second

complaint cannot command a second consideration of

the same jurisdictional claims.”); Royal Insurance Co.

of America v. Quinn-L Capital Corp., 960 F.2d 1286

(5th Cir. 1992); Hawthorne v. Couch, 946 So.2d 288,

41,603 (La.App.2d Cir. 2006) (previous ruling of lack

of subject matter jurisdiction given res judicata

effect).

App. 31

In LoCicero v. Jefferson Parish Dept. of Fleet

Management, 722 So.2d 1205, 1209 (La.App. 5th

Cir.1998), the court explained that a court’s finding of

lack of subject matter jurisdiction can be the basis for

res judicata:

(The] question here is whether a final judg-

ment sustaining an exception of lack of

subject matter jurisdiction can form the ba-

sis of an exception of res judicata in a second

suit subsequently brought in the same court

and based on the same transaction or occur-

rence...

The purpose of the concept of res judicata is

to put an end to disputes between the same

parties which arise from the same trans-

action or occurrence, see La. R.S. 13:4231,

Comments-1990(a). While we recognize that

a judgment rendered on the merits by a court

without subject matter jurisdiction is gen-

erally a nullity, that rule cannot be applied to

a judgment like the present one where the

decision initially made was simply whether

the court could proceed further with the case.

Pursuant to La.Code Civ. Pro., Art. 925(A)(6),

relating to the declinatory exception of lack

of jurisdiction over the subject matter of the

action, district courts are required to exercise

their threshold jurisdiction in deciding this

issue. [It would be anomalous indeed were it

to be held that a judgment sustaining this

exception would be a nullity for res judicata

purposes in a subsequent suit in the same

court. Such a ruling would permit endless

App. 32

re-litigation of that issue in direct contra-

vention of the policy underlying the concept

of res judicata.

Id. at 1209-1210.

Thus, this court’s jurisdictional ruling in Min-

vielle 1 is a final and valid judgment to which res

judicata applies

Parties

In order for res judicata to apply, there must be a

commonality of parties. Identity of parties does not

mean the parties must be the same physical parties.

When one party’s interests were adequately repre-

sented by another party to an earlier action who may

be considered their virtual representative because

their interests are closely aligned, their presence in a

later litigation does not disrupt the res judicata

analysis. Forum for Equality, PAC v. McKeithen, 893

So.2d 738, 745 (La. 2005) (addition in second suit

of three new plaintiffs’ whose interests were closely

aligned to original plaintiffs did not preclude res

judicata application).

In Minvielle I plaintiff sued IMC. In Minvielle II,

plaintiff sued IMC’s successor Mosaic, and ARCO,

Oxy, and Pacific. Although ARCO, Oxy, and Pacific

were not named as defendants by plaintiff in Min-

vielle I, they were the subject of a third-party com-

plaint filed by IMC. Although the case was dismissed

prior to ARCO, Oxy, and Pacific having made an

App. 33

appearance, they were nonetheless named parties to

the litigation.

Furthermore, ARCO, Oxy, and Pacific are former

parties to, or successors-in-interest to the original

parties to the 1961 Lease. The complaint in Minvielle

II states that the defendants are joint tortfeasors and

because “the negligence, acts and/or omissions of de-

fendants have collectively contributed to plaintiff’s

pollution-related property damages, all defendants

are solidarily liable for all damages sought in this

litigation.”

It is clear that, as joint tortfeasors, the defen-

dants were closely aligned and their interests were

adequately represented by IMC/Mosaic in Minvielle I.

Accordingly, the requirement for identity of parties is

met.

Existence of Causes of Action and Same

Transaction or Occurrence

The central inquiry in applying the doctrine of

res judicata is whether the cause of action in the

second case arises out the same transaction or occur-

rence that was the subject of the first case. Blanchard

v. ABC Ins. Co., 38,005 p. 5 (La. App 2d Cir. 3/3/04),

867 So.2d 901. It is clear that the alleged causes of

action asserted in Minvielle II existed at the time of

Minvielle I and that the causes of actions arise from

the same transaction or occurrence. In fact, the

App. 34

Minvielle II complaint specifically states that claims

in both suits are “identical.”

Although plaintiff argues that res judicata should

not apply because the Amendment to Act of Cash Sale

did not exist at the time of the first judgment, the

existence of the amendment is irrelevant. The Act

of Cash Sale between plaintiff and the Cowans does

not form the basis for the allegations of negligence

against defendants, but rather, the causes of action

arise from defendants’ alleged wrongdoings. The alle-

gations as to defendants’ alleged torts and contractual)

violations arising from the 1961 lease are the same in

both Minvielle I and II.

Moreover, plaintiff offers no persuasive authority

for the proposition that the Amendment to Act of

Cash Sale cures the res judicata effect of the prior

judgment. Plaintiff cites Perry v. Globe Auto Recycl-

ing, Inc., 227 F.3d 950, 953 (7th Cir. 2000) for the

proposition that an assignee who lost on his own

claims was not precluded from bringing a new action

on a claim acquired from another person. Perry, how-

ever, is distinguishable from the instant case. Perry

did not involve a standing issue, nor does it address

the effect of res judicata.’ The facts of the case at

bar are peculiar in that plaintiff lacked standing in

* Rec. Doc. 1.

' Furthermore, this case is not authoritative because as

discussed above, the law applicable to this determination is

Louisiana law. Moreover, the case is not a 5th Circuit decision.

App. 35

Minvielle I and is now attempting to cure the court’s

previous finding of lack of jurisdiction by filing an

amended cash sale purporting to confer standing on

plaintiff. Plaintiff has not cited any cases establishing

that a dismissal for lack of standing/jurisdiction can

be cured by a post-judgment attempt to confer stand-

ing to the same party who was previously adjudged to

be without standing.

The claims asserted are identical to those as-

serted in Minvielle I, there is commonality of parties,

and the court’s jurisdictional ruling in Minvielle I is a

final and valid judgment. Accordingly, all require-

ments for application res judicata are met.

Conclusion

The underlying facts and causes of action in

Minvielle II are precisely the same as in Minvielle I,

and the parties are virtually the same. Likewise, be-

cause the Minvielle I judgment regarding lack of

subject matter jurisdiction is res judicata in this case,

both cases have the same fatal flaw — lack of subject

matter jurisdiction. Plaintiff’s after-the-fact creation

of a document purporting to create standing does not

affect the preclusive effect of res judicata. To allow

any other ruling in this case would thwart the fun-

damental principal of res judicata, 1.e., that matters

litigated and finally adjudged are presumed correct

and not subject to collateral attack in a subsequent

suit involving the same transaction or occurrence.

App. 36

Accordingly, defendants’ motions for summary

judgment based on res judicata are GRANTED. Be

cause the Minvielle | finding that plaintiff did not

have standing has res judicata effect, the court in the

instant case does not have subject matter jurisdiction.

Since dismissal is proper for lack of subject matter

jurisdiction, it is not necessary to address the re-

maining motions. Ruhrgas AG v. Marathon Oil, 526

U.S. 574 (1999); Alpine View Co. Ltd. v. Atlas Copco

AB, 205 F.3d 208 (5th Cir. 2000)

Signed at Lafayette, Louisiana, on September 6,

Z00 |

Mildred E. Methvin

Mildred E. Methvin

United States Magistrate Judge

800 Lafayette St., Suite 3500

Lafayette, Louisiana 70501

337) 593-5140 (phone

193-5155 (fax)

App. 37

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

FRANK C. MINVIELLE, LLC CIVIL ACTION

VS. NO. 05-1312

ATLANTIC REFINING CO. potter al +

OXY USA, INC.

PACIFIC ENTERPRISES mi Sg en Tia

OIL CO. MOSAIC GLOBAL s

OPERATIONS, INC.

JUDGMENT

(Filed Sep. 6, 2007)

For the reasons set forth in the Memorandum

Opinion filed this date,

IT IS ORDERED that defendants’ motions for

summary judgment based on res judicata are

GRANTED, and this case is dismissed for lack of

subject matter jurisdiction.

App. 33

Signed at Lafayette, Louisiana, on September 6,

2007

Mildred FE. Methvin

Mildred E. Methvin

United States Magistrate Judge

800 Lafayette St., Suite 3500

Lafayette, Louisiana 70501

(337) 593-5140 (phone)

593-5155 (fax)

App. 39

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

FRANK C. MINVIELLE, LLC CIVIL ACTION

VS. NO. 05-1312

ATLANTIC REFINING CO. a arn ‘

OXY USA, INC.

PACIFIC ENTERPRISES a.

OIL CO. MOSAIC GLOBAL

OPERATIONS, INC.

MEMORANDUM RULING ON MOTION FOR

NEW TRIAL AND/OR TO AMEND JUDGMENT

(Rec. Docs. 89 and 91)

(Filed Mar. 24, 2008)

On September 6, 2007, the undersigned issued a

Memorandum Ruling dismissing this case for lack of

subject matter jurisdiction.’ Judgment was entered

the same day.” On September 20, 2007, plaintiff filed

the instant motion under Rule 59 for new trial and/or

* Rec. Doc. &7

~ Rec. Doc. 88

App. 40

to amend or alter judgment.’ Defendants oppose the

motion.°

Legal Analysis

The factual background is fully set forth in the

memorandum ruling of September 6, 2007, and will

not be repeated here. The ruling concluded that the

Minvielle I judgment regarding lack of subject matter

jurisdiction is res judicata in this case. Plaintiff

contends that the judgment should be vacated and

plaintiff should be allowed a new trial because res

judicata is inapplicable and plaintiff has standing to

sue ARCO.

* Rec. Docs. 89 and 91. Although plaintiff filed two separate

motions, the motions rely on the same memorandum in support.

Oxy incorrectly asserts that the motion was filed untimely.

A motion filed under Rule 59 must be filed within 10 days of

judgment. According to Rule 6(a) the day of the act (entry of

judgment) is not included in the time period. Moreover, “|wJhen

the period of time prescribed or allowed is less than 11 days,

intermediate Saturdays, Sundays, and legal holidays shall be

excluded in the computation.” Here, the judgment was entered

on September 6, 2007. Using the furegoing formula, the deadline

for filing a motion under Rule 59 was September 20, 2007, which

is the date that plaintiff filed the motion. Accordingly, the

motion was filed timely.

* Rec. Docs. 95-98.

App. 41

The court has considerable discretion to grant or

deny a motion under Rule 59.° Whitehead v. Food

* Rule 59 provides as follows:

Rule 59. New Trial; Altering or Amending a

Judgment

(a) In General.

(1) Grounds for New Trial. The

court may, on motion, grant a new

trial on all or some of the issues — and

to any party — as follows:

(A) after a jury trial, for any reason

for which a new trial has heretofore

been granted in an action at law in

federal court; or

(B) after a nonjury trial, for any rea-

son for which a rehearing has hereto-

fore been granted in a suit in equity in

federal court.

(2) Further Action After a Nonjury

Trial. After a nonjury trial, the court may,

on motion for a new trial, open the judg-

ment if one has been entered, take addi-

tional testimony, amend findings of fact

and conclusions of law or make new ones,

and direct the entry of a new judgment.

(b) Time to File a Motion for a New Trial.

A motion for a new trial must be filed no later

than 10 days after the entry of judgment.

(c) Time to Serve Affidavits. When a motion

for a new trial is based on affidavits, they must

be filed with the motion. The opposing party has

10 days after being served to file opposing

affidavits; but that pemod may be extended for

up to 20 days, either by the court for good cause

or by the parties’ stipulation. The court may per-

mit reply affidavits

Continued on following page)

App. 42

Max of Mississippi, Inc., 163 F.3d 265 (5th Cir. 1998);

Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6

F.3d 350, 355 (5th Cir.1993); Lavespere, 910 F.2d at

174. The court must “strike the proper balance between

the need for finality and the need to render a just

decision on the basis of all the facts.” Bohlin, 6 F.3d at

355. It is wel] established that a party may not use

Rule 59(e) to relitigate old matters, or to raise argu-

ments or present evidence that could have been raised

prior to the court order. See Templet v. HydroChem Inc.,

367 F.3d 473, 479 (5th Cir. 2004); Simon v. United

States, 891 F.2d 1154, 1159 (5th Cir.1990).

Res judicata: As set forth in the September 6th

ruling, “[t]he purpose of both federal and state law on

res judicata is essentially the same; to promote

judicial efficiency and final resolution of disputes by

preventing needless re-litigation.” Terrebonne Fuel &

Lube, Inc. v. Placid Ref. Co., 95-654, p. 11 (La.1/16/96),

666 So.2d 624, 631.

(d) New Trial on the Court’s Initiative or

for Reasons Not in the Motion. No fater than

10 days after the entry of judgment, the court, on

its own, may order a new trial for any reason

that would justify granting one on a party’s mo-

tion. After giving the parties notice and an op-

portunity to ve heard, the court may grant a

timely motion for a new trial for a reason not

stated in the motion. In either event, the court

must specify the reasons in its order.

(e) Motion to Alter or Amend a Judgment. A

motion to alter or amend a judgment must be filed no

later than 10 days after the entry of the judgment

App. 43

In this diversity case, the court must apply Loui-

siana law to determine the preclusive effect of its

prior judgments.” Louisiana Revised Statute § 13:4231

provides:

Except as otherwise provided by law, a valid

and final judgment is conclusive between the

same parties, except on appeal or other di-

rect review, to the following extent: ...

(2) If the judgment is in favor of the de-

fendant, all causes of action existing at the

time of final judgment arising out of the

transaction or occurrence that is the subject

matter of the litigation are extinguished and

the judgment bars a subsequent action on

those causes of action.

(3) A judgment in favor of either the

plaintiff or the defendant is conclusive, in

any subsequent action between them, with

respect to any issue actually litigated and

determined if its determination was essential

to that judgment.

Mosaic incorrectly asserts that federal law should be ap-

plied to the res judicata issue in this case. The case relied upon

by Mosaic, however, pre-dates the Supreme Courts’ ruling in

Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121

S.Ct. 1021, 1028, 149 L.Ed.2d 32 (2001) (“Federal common law

governs the claim-preclusive effect of a dismissal by a federal

court sitting in diversity.”) Federal courts, therefore, apply the

law of the forum state, unless the state’s law is incompatible

with federal interests, when the basis of the court’s jurisdiction

was diversity of citizenship. American Home Assurance Co. v

Chevron, USA, Inc., 400 F.3d 265, 271 n. 20 (5th Cir.2005)

App. 44

Thus, “a second action is precluded when all of

the following are satisfied: (1) the judgment is valid;

(2) the judgment is final; (3) the parties are the same;

(4) the cause or causes of action asserted in the sec-

ond suit existed at the time of final judgment in the

first litigation; and (5) the cause or causes of action

asserted in the second suit arose out of the trans-

action or occurrence that was the subject matter of

the first litigation.” Burguieres v. Pollingue, 843 So.2d

1049, 1053, 2002-1385 (La. 2003).

Plaintiff does not dispute that: the resolution of

Minvielle I was a valid and final judgment; that the

causes of action asserted in Minvielle II existed at the

time of final judgment in Minvielle I; and that the

causes of action in the two cases arose out of the same

transaction or occurrence. Plaintiff’s sole contention

is that because the parties to the two suits were not

identical, res judicata should not apply.

Identity of parties does not mean that the parties

must be identical. Identity exists when the same par-

ties, their successors, or others appear so long as they

share the same ‘quality as parties. Sun Finance Co.,

Inc. v. Jackson, 525 So.2d 532 (1.a.1988): Welch uv.

Crown Zellerbach Corp., 359 So.2d 154 (La.1978).

When one party’s interests were adequately repre-

sented previously by a party whose interests are

closely aligned, the presence of the first party in later

litigation does not affect the res judicata analysis.

Forum for Equality, PAC v. McKeithen, 2004-2551

(La. 1/19/05), 893 So.2d 738 (noting that parties are

deemed “privies” when: (1) the nonparty is the

App. 45

successor in interest of a party; (2) the nonparty con-

trolled the prior litigation; or (3) the nonparty’s in-

terests were adequately represented by a party to the

action who may be considered the “virtual represen-

tative” of the nonparty because the interests of the

party and the nonparty are so closely aligned.”).

The memorandum ruling addressed the identity

of parties as follows:

In order for res judicata to apply, there must

be a commonality of parties. Identity of par-

ties does not mean the parties must be the

same physical parties. When one party’s in-

terests were adequately represented by an-

other party to an earlier action who may be

considered their virtual representative be-

cause their interests are closely aligned,

their presence in a later litigation does not

disrupt the res judicata analysis. Forum for

Equality, PAC v. McKeithen, 893 So.2d 738,

745 (La. 2005) (addition in second suit of

three new plaintiffs whose interests were

closely aligned to original plaintiffs did not

preclude res judicata application).

In Minvielle I plaintiff sued IMC. In Minvieile

[I1, plaintiff sued LMC’s successor Mosaic, and

ARCO, Oxy, and Pacific. Although ARCO, Oxy,

and Pacific were not named as defendants by

plaintiff in Minvielle I, they were the subject

of a third-party complaint filed by IMC.

Although the case was dismissed prior to

ARCO, Oxy, and Pacific having made an ap-

pearance, thev were nonetheless named par-

ties to the litigation

App. 46

Furthermore, ARCO, Oxy, and Pacific are

former parties to, or successors-in-interest to

the original parties to the 1961 Lease. The

complaint in Minvielle II states that the

defendants are joint tortfeasors and because

“the negligence, acts and/or omissions of de-

fendants have collectively contributed to plain-

tiff’s pollution-related property damages, al]

defendants are solidarily liable for all dam-

ages sought in this litigation.”

It is clear that, as joint tortfeasors, the de-

fendants were closely aligned and their in-

terests were adequately represented by IMC/

Mosaic in Minvielle I. Accordingly, the re-

quirement for identity of parties is met.’

Plaintiff contends that the court should not have

considered the third party claims filed against ARCO,

Oxy, and Pacific in Minvielle I, because they were not

served and made no appearance. Plaintiff also argues

that the fact that ARCO, Oxy, and Pacific were al-

leged to be solidarily liable with IMC does not show

that the defendants were closely aligned.

Plaintiff relies on Breaux v. Avondale Industries,

Inc., 2002-1713 (La. App. 4 Cir. 3/12/03), 842 So.2d

1115, for the proposition that “mere solidarity” does

not operate tio create “virtual representation and close

alignment.” Breaux is distinguishable, however. In

Breaux, the defendants had adverse interests, and

were not considered solidarily liable. The judgment in

Rec. Doc. 87 at pps. 10-11

App. 47

question “exonerated the only party before the court,

thus making it impossible to declare that party to

have been solidarily liable with anyone”. Jd. at 1119.

In Minvielle I, IMC/Mosaic joined as_ third-party

defendants ARCO, Oxy, and Pacific due to the joint

interests of all defendants.

Furthermore, the identity of parties in the in-

stant case is not based solely on solidarity. The defen-

dants in the two actions are all former parties or

successors-in-interest to the 1961 lease. Plaintiff’s

claims against all defendants are identical and arise

from the obligations allegedly created by the lease.

Additionally, plaintiff was aware at least by the

time of Minvielle I that ARCO, Oxy, and Pacific had

conducted operations on the land in question, and

were potentially liable for the resulting contamina-

tion. Plaintiff could have asserted claims against

these defendants at that time, but chose not to do so.

Finally, it is clear that IMC/Mosaic adequately

represented the aligned interests of all defendants as

it related to plaintiff’s lack of standing under the

1961 Lease.

Considering the foregoing, the September 6, 2007

ruling finding that the there was an identity of

parties in Minvielle I and II was not erroneous. The

Minvielle I judgment finding that the court lacks

subject matter jurisdiction is res judicata in this case.

Claim of standing Plaintiff argues that it has

standing to sue ARCO. This does not ameliorate the

App. 48

fact that there is no subject matter jurisdiction in

this case. Plaintiff’s standing was fully litigated in

Minvielle [. The doctrine of res judicata precludes

plaintiff’s attempt to re-litigate the issue as to any

party to the previous litigation, as well as parties who

were closely aligned with the party in the previous

litigation, such as ARCO. Because the Minvielle I

judgment regarding lack of subject matter jurisdic-

tion is res judicata, the court lacks subject matter jur-

isdiction in this case. Since dismissal is proper for

lack of subject matter jurisdiction, it is not necessary

to fully address plaintiff's standing argument. RuArgas

AG v. Marathon Oil, 526 U.S. 574 (1999); Alpine View

Co. Ltd. v. Atlas Copco AB, 205 F.3d 208 (5th Cir.

2000).°

Conclusion

Considering the foregoing, the Court’s finding that

res judicata applies to this case will not be altered.

Accordingly,

IT IS ORDERED that plaintiff’s motion is

DENIED.

* The undersigned also notes that this attempt by plaintiff

to address this specific standing issue is improper under Rule

59, which “may not use Rule 59/(e) to relitigate old matters, or to

raise arguments or present evidence that could have been raised

prior to the court order.” See Templet v. HydroChem Inc., 367

F.3d 473, 479 (5th Cir. 2004) Stmon v. United States, 891 F.2d

1154, 1159 (Sth Cir.1990)

App. 49

Signed at Lafayette, Louisiana, on March 24,

2008.

/s/ Mildred E. Methvin

Mildred E. Methvin

United States Magistrate Judge

800 Lafayette St., Suite 3500

Lafayette, Louisiana 70501

(337) 593-5140 (phone)

593-5155 (fax)

App. 50

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE - OPELOUSAS DIVISION

FRANK C. MINVIELLE, L.L.C. CIVIL ACTION

VS. NO. 03-1908

IMC GLOBAL MAGISTRATE

OPERATIONS. INC JUDGE METHVIN

; , BY CONSENT OF

THE PARTIES

MEMORANDUM OPINION ~-

RULING ON MOTION

(Rec. Doc. 108)

(Filed Jan. 12, 2005)

Before the court is plaintiff's Memorandum in

Support of the Motion for Reconsideration and/or

for New Trial seeking reconsideration of the under-

signed’s October 19, 2004 ruling dismissing plaintiff's

claims based on lack of standing. On November 4,

2004, the Motion for Reconsideration was granted

and additional! briefing was ordered. Plaintiff filed a

supplemental memorandum in support and defen-

dant filed an opposition.’

Issues Presented

Plaintiff seeks an order vacating the Court’s

judgment dismissing plaintiff’s claims for lack of

Rec. Doc. 111 and 112

App. 51

standing to bring contractual and tort claims arising

from defendant’s alleged contamination of property.

Plaintiff alleges it has standing to bring the claims

because actions for restoration of property once bur-

dened by a mineral lease are real rights which attach

to the property, and that to the extent that the Act of

Cash Sale was deficient, it is being amended to in-

clude the transfer of property rights to plaintiff.

Background’

On October 19, 2004, defendant’s motions to dis-

miss and for summary judgment were granted and

judgment was entered dismissing plaintiff’s claims

against defendant. As it relates to plaintiff ’s lack of

standing to bring contractual and tort claims, the

Memorandum Opinion states:

Plaintiff seeks damages based on IMC’s

breach of the 1961 lease and for IMC’s tor-

tious conduct. IMC argues that since plaintiff

was not a party to the contract and the

previous owners’ rights under the 1961 lease

were not specifically assigned to plaintiff,

plaintiff lacks standing to bring the breach

of contract claims. Moreover, IMC maintains

that since the tortious conduct occurred prior

to plaintiff owning the property, it cannot

assert tort claims for damages. Plaintiff

For a detailed review of the procedural and factual back

ground, see Rec. Doc. 105

Rec. Doc. 105

App. 52

maintains that it has standing because it is a

third party beneficiary of the contract and

because tort damages can be brought regard-

less of the timing of the damages.

¥ + ‘

There is no dispute that plaintiff has no

direct privity of contract with IMC, nor does

plaintiff allege that it obtained any assign-

ment of rights in the the Act of Sale from the

previous owners, other than warranty of

title.

After an exhaustive review of the law regarding

stipulations pour autri and standing to bring tort

claims arising from damage to property, the Court

found that plaintiff did not have standing to bring

contractual or tort claims.

Legal Analysis

The Federal Rules of Civil Procedure do not rec-

ognize a motion to reconsider in haec verba. See

Lavespere v. Niagara Mach. & Tool Works. Inc., 910

F.2d 167, 173 (5th Cir.1990), abrogated on other

grounds by Little v. Liquid Atr Corp., 37 F.3d 1069,

1075 n. 14 (5th Cir.1994). The Fifth Circuit has held

that a motion to recunsitter a dispositive pretrial

motion may be classified under either Rule 59 or Rule

60, depending upon the time of filing. /d. If the mo-

tion is filed within ten days of the court's judgment, a

motion for reconsideration is treated as a Rule 59(e)

motion “to alter or amend” the judgment. /d. If filed

App. 53

more than ten days after the judgment, a motion for

reconsideration falls under Rule 60(b) as a motion for

“relief from judgment.” Here, plaintiff filed the mo-

tion for reconsideration less than ten days after this

Court entered its judgment.’ (Accordingly, the Court

analyzes plaintiff ’s motion under Rule 59(e).

The district court has considerable discretion to

erant or deny a motion under Rule 59(e). Edward H.

Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355

(5th Cir.1993); Lavespere, 910 F.2d at 174. The court

must “strike the proper balance between the need for

finality and the need to render a just decision on the

basis of all the facts.” Bohlin, 6 F.3d at 355. It is well

established that a party may not use Rule 59(e) to re-

litigate old matters, or to raise arguments or present

evidence that could have been raised prior to the

court order. See Simon v. United States, 891 F.2d

1154, 1159 (5th Cir.1990); Louis Dreyfous Corp. v.

McShares, Inc., 1990 WL 3916, at *1 (E.D.La. Jan.

17, 1990) (“Relitigation of previously decided issues is

not favored, particularly when no newly discovered

evidence or other compelling reason exists.”).

* Judgment was entered October 19, 2004 (Rec. Doc. 105).

According to Fed R. Civ. Proc. Rule 6, the day of the judgment

and weekends are not included in computing time delays that

are less than ten days. Accordingly, the motion filed on Novem-

ber Z, 2004 was filed within ten days of judgment

App. 54

Standing to enforce restoration obligation

Plaintiff asserts that defendant had an obligation

under the Mineral Code, La. RS. 31:1 et seq, to

restore the property, and that plaintiff has standing

to enforce that obligation. In the original ruling, the

court found that since plaintiff was not assigned the

right to enforce the obligations of the mineral lease,

plaintiff did not have standing to bring the claims.

Plaintiff maintains that since mineral leases are

classified as real rights, they attach to the land and

there was no need for a particular assignment of

rights to plaintiff in order for plaintiff to have stand-

ing to bring suit.

Plaintiff is correct that the Mineral Code imposes

an obligation on a mineral lessee to restore the leased

property. The Louisiana Supreme Court and the

Third Circuit Court of Appeals of Louisiana have

recognized the contractual duty of a mineral lessee to

restore the surface upon completion of operations. See

Caskey v. Kelly Oil Company, 737 So.2d 1257 (La.1999)

and Trinidad Petroleum Corporation v. Pioneer Natu-

ral Gas Company, 416 So.2d 290 (3rd Cir.1982). In

Trinidad, the court held that an implied obligation of

a mineral lessee to restore the surface when opera-

tions are completed is read into every mineral lease.

This, however, is not dispositive of the issue be-

fore this court. Regardless of whether or not an ob-

ligation existed, plaintiff must have standing to bring

the action to enforce the obligation. Plaintiff main-

tains that since a mineral lease is a real right, the

App. 55

obligations attach to the land, and therefore, the own-

er of the land has standing to bring action against the

mineral lessee, despite the lack of privity of contract

between plaintiff and defendant.’

The original ruling characterized plaintiff’s ac-

tion in the case at bar as a personal right, which did

not attach to the property. Although, Louisiana R.S.

31:16 provides that a mineral lease, as a mineral

right, is a real right, a review of the Mineral Code

and the jurisprudence shows that it is not purely a

real right that automatically attaches to the property,

and therefore, the result of the original ruling was

correct. In Sketoe v. Exxon Co., 188 F.3d 596, 600-601

(5th Cir.1999), the court noted the dual nature of

mineral leases, concluding that the mineral lease

gives rise to a limited personal servitude, which is a

real right:

The Louisiana mineral lease includes fea-

tures that are characteristic of both contracts

and rights in property. See id. § 31:16 cmt.

(noting that the mineral lease is “a hybrid

institution”); see generally 1A W.L. SUM-

MERS, THE LAW OF OIL AND GAS § 167

(2d ed. 1954 & Supp.1999); Martin & Yeates,

supra, at 823-26. For instance, we inter-

pret the terms of the lease agreement as we

5

Real rights and obligations transfer from the seller to the

buyer without any special provision. La.Civ.Code art. 1763. Per-

sonal rights, however, do not transfer tn the absence of a special

assignment of rights to the buyer. La.Civ.Code art. 1764

App. 56

would any other lease. See La.Rev.Stat. Ann.

§ 31:2; Massie v. Inexco Oil Co., 798 F.2d 777,

779 (5th Cir.1986). Indeed, the lease itself is

a “contract.” La.Rev.Stat. Ann. § 31:114. As

such, it does not create an unlimited mineral

servitude, and Louisiana’s liberative pre-

scription for ten years nonuse therefore does

not apply. See Reagan v. Murphy, 235 La.

529, 105 So.2d 210, 215 (La.1958). On the

other hand, as an “incorporeal immovable”

*601 a mineral lease carries “real rights” and

is “subject to the laws of registry.” See

La.Rev.Stat. Ann. §§ 31:16,:18; St. Charles

Land Trust v. St. Amant, 253 La. 243, 217

So.2d 385, 390 (La.1968) (“Under Louisiana

law, the mineral leases and servitudes held

by the trustees are immovable property.”).

Strictly speaking, the mineral lease creates a

kind of servitude called a “limited personal

servitude.” See 3 a.N. Yiannopoulis, Louisi-

ana Civil Law Treatise: Personal Servitudes

§ 223, at 450 (3d ed.1989). “Limited personal

servitudes are real rights that confer on a

person limited advantages of use or enjoy-

ment over an immovable[, v.e., realty,] be-

longing to another person.” Jd. at 448-49.

Thus, it is in the nature of a limited personal ser-

vitude that the mineral lease is a real right. The lim-

ited personal servitude is explained in the Comments

to La. C.C. Art. 639 as constituting “an intermediary

category between personal and predial servitudes.

Like usufruct and habitation, they are charges on

things in favor of a person rather than an estate, like

predial servitudes, they are necessarily charges on an

App. 57

immovable belonging to another person and are con-

fined to certain advantages of use or enjoyment.” Al-

though a right of use, i.e., a personal servitude, is a

real right, it is one granted in favor of a person rather

than an estate, and therefore it does not pass with

the property upon sale of the property. Sustainable

Forests, L.L.C. v. Harrison, 846 So.2d 123, 1284

(La.App. 2 Cir. 5/22/03). A predial servitude, however,

is created to benefit an estate, and therefore, is

inseparable from the estate and passes with it upon

sale. La. C.C. Art. 650.

In the case of a mineral lease, the Mineral Code

designates the right as a real one in order to protect

the mineral lessee from losing his rights if the land is

sold during the existence of the lease. This conclusion

is apparent in the reasoning behind La.R.S. 31:16,

which are illustrated in the Comments stating:

All things considered, the lease has the ma-

jor characteristics of a real right: the mineral

lessee may follow the land, regardless of

transfers of ownership; the mineral lessee

may assert his rights against the world just

as the proprietor of any other real right; he

may enjoy directly and draw from the land a

part of its economic advantages by appro-

priating a wasting asset; he has certain

rights of preference; and he holds a right

that is in reality susceptible of a type of

possession through exercise.

App. 58

The fact that the real right created is the right

held by the lessee, is specifically noted in the Com-

ments to La.R.S. 31:154, “The mineral lease, though

it creates a real right in the hands of the lessee is still

an elaborate contractual relationship.” Accordingly,

the mineral lease gives real rights to the lessee, but

the Mineral Code is void of any indication that it

creates real rights in favor of the lessor. This is ac-

counted for in the Comments to La.R.S. 31:16, which

note:

It is true that there are certain distinctions

from the normal rea] right which give the

mineral lease markings of kinship to per-

sonal rights. Not all obligations created by

the lease are binding on a subsequent owner

of the land. However, these distinguishing

marks are susceptible of recognition and are

dealt with appropriately in the articles of

this code governing mineral leases. The basic

purpose of this article is to recognize that

insofar as the mineral lease transfers both

operating rights and rights to production it is

a real right and not a mere personal con-

tract.

Further, the jurisprudence does not indicate that

a subsequent landowner has standing to sue a former

mineral lessee based on the status of the mineral

lease as a mineral right.’ Moreover, the cases which

* The lone case cited by plaintiff is factually distinguishable

in that in Magnolia Coal Terminal v. Phillips Oil Co., 576 So. 2d

475 (La. 1991) the landowner purchased the land while the

(Continued on following page)

App. 59

do involve the issue presented herein, i.e., whether a

subsequent landowner has standing to bring suit

based on the expired mineral lease, require the subse-

quent landowner to some form of privity of contract,

assignment of rights, or be the beneficiary of a stipu-

lation pour autri. Hazelwood Farm, Inc. v. Liberty Oil

and Gas Corp., 790 So.2d 93, 100-101 (La.App. 3rd

Cir. 2001) (subsequent landowner had standing to

bring claims as a beneficiary of a stipulation pour

autri); Hargroder v. Columbia Gulf Transmission Co.,

290 So.2d 874, 876 (La. 1974) (stipulation pour autri).

As stated in the origina] ruling, “There is no dispute

that plaintiff has no direct privity of contract with

IMC, nor does plaintiff allege that it obtained any

assignment of rights in the Act of Sale from the previ-

ous owners, other than warranty of title.”’ Plaintiff

now, after the Court’s ruling, claims that the parties

to the Act of Sale intended to assign rights to plain-

tiff, and therefore, the Act of Sale will be amended to

so state. Plaintiff has not provided a copy of the

Amended Act of Sale, nor is there any indication that

such an amendment will be allowed by the state

court.

Considering the foregoing, the Court’s finding

that plaintiff does not have standing to bring contrac-

tual or tort claims will not be altered. Accordingly,

mineral lease was still in existence. Here, on the other hand, the

lease had expired and was no longer in effect when plaintif!

purchased the land. .

~ Ree. Doc. 105 at p. 17

App. 60

IT IS ORDERED plaintiff ’s request to vacate

the October 19, 2004 ruling in favor of defendant is

DENIED.

Signed at Lafayette, Louisiana on January 12,

2005.

/s/ Mildred FE. Methvin

Mildred E. Methvin

United States Magistrate Judge

800 Lafayette St., Suite 3500

Lafayette, LA 70501

(337) 593-5140 FAX 593-5155

App. 61

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

FRANK C. MINVIELLE, L.L.C. CIVIL ACTION

VS. NO. 03-1908

IMC GLOBAL OPERATIONS, MAGISTRATE

JUDGE METHVIN

INC. TRANSOK INC. whine bin

ENCANA MIDSTREAM, INC. 7s DARTS

ESTIS WELL SERVICE, L.L.C.

MEMORANDUM OPINION -

RULING ON MOTIONS

(Rec. Docs. 19 and 89)

(Filed Oct. 19, 2004)

Before the court are a number of motions to

dismiss filed by defendant IMC Global Operations,

Inc. (*IMC”).'’ Plaintiff, Frank C. Minvielle, L.L.C.

filed an opposition and IMC filed a reply.’ Plaintiff

submitted additional affidavits and defendant filed a

The motion is styled as if mover were McMoRan

Exploration Company rather than defendant IMC. As the court

observed in its ruling on the motion to remand, McMoRan has

undertaken the defense of IMC in this suit, and its motion will

be deemed on behalf of IMC. Encana also filed a motion to

dismiss (Rec. Doc. 16), however, at oral argument held July 22,

2004, plaintiff's counsel advised that plaintiff was going to

voluntarily dismiss Encana with prejudice, rendering Encana’s

motion moot. An order dismissing FE ncanca was issued August

16, 2004. Rec. Doc. 94.

“ Rec. Doc. 69. 72, and 73

App. 62

motion to strike a portion of the affidavits.’ Oral

argument was held on July 22, 2004.*

Procedural Background

Plaintiff, a limited liability company, filed suit on

August 27, 2003, in the 16th Judicial District Court

alleging that it owns real property and oil and gas

leases in Iberia Parish, Louisiana, which have been

“contaminated or otherwise damaged by defendants’

oil and gas exploration and production activities.”

Plaintiff named as defendants IMC, Encana Mid-

stream, Inc., Estis Well Service, L.L.C., and Transok,

Inc. The case was removed to federal on October 15,

2003 pursuant to diversity jurisdiction under 28

U.S.C. § 13832. Only one defendant remains in the

case at this juncture: IMC.°

> Rec. Doc. 89.

4

At oral argument, the court deferred ruling on the motion

for summary judgment based on prescription; and on the Rule

12(b\7) motion to dismiss for failure to join parties who retained

a '/2% mineral interest in the property; for lack of standing, and

for failure to state a claim for attorney’s fees

* See Petition for Damages, Rec. Doc. 1, Paragraphs 1 and 3

* On February 2, 2002, Estis Well Service, L.L.C. was dis-

missed based on fraudulent joinder (Rec. Doc. 55). Defendant

Transok, Ine., was dismissed on February 20, 2004 for plaintiff's

failure to prosecute (Rec. Doc. 65). Finally, Encana was dis-

missed with prejudice on plaintiff's motion (Rec. Doc. 94).

App. 63

Factual Background

The record shows as follows: On September 28,

1961, Juliet Bourgeois Delcambre, a previous owner

of the land at issue, entered into an Oil, Gas and

Mineral Lease (hereinafter referred to as the “1961

lease”) with The Atlantic Refining Company

(“ARCO”) for the purposes of exploring and possibly

drilling for oil on the property. ARCO subleased the

mineral rights to Callery Properties, Inc. on

November 26, 1962." Callery Properties, Inc., in turn,

conveyed its interest in the lease to Petro-Lewis

Funds, Inc. on November 26, 1974.’ Petro-Lewis

conducted operations on the property and on

December 24, 1977 filed a “Plug and Abandon Report”

related to the Delcambre #1 Well (well serial no.

105992).”° Plaintiff alleges that Petro-Lewis breached

the contract and contaminated the property during

its operations. IMC is the successor of Petro-Lewis.

Plaintiff’s predecessor, Minvielle & Segura,

L.L.C. purchased the land in 1998 by Act of Cash

Sale.'’ On November 30, 2001, Frank C. Minvielle

' Attachment to Rec. Doc. 69. On January 10, 1963, Juliet

Delcambre Cowan, daughter of Juliet Bourgeois Delcambre,

ratified the 196] lease. See “Act of Ratification,” attachment to

Rec. Doc. 69.

* “Sublease of Oil, Gas, and Minera! Leases.” attachment to

Rec. Doc. 69.

* “Conveyance,” attachment to Rec. Doc. 69.

° “Plug and Abandon Report,” attachment to Rec. Doc. 41.

Exhibit 8 to Rec. Duc. 41.

App. 64

acquired all ownership of Minvielle & Segura, L.L.C.,

and shortly thereafter changed its name to Frank C.

Minvielle, L.L.C., plaintiff in this action.”

Motions Presented

IMC filed the following motions:

(A) Rule 12(b)(1) Motion Requesting Defer-

ence to the Primary Concurrent Juris-

diction of the Louisiana Office of Con-

servation (“LOC”) and the Louisiana

Department of Environmental Quality

(“DEQ”);

(B) Rule 12(b)\1) and/or 12(b)(6) motion to

dismiss premature claims;

(C) Rule 12(e) motion for more definite

statement;

(D) Rule 12(b\3) motion to dismiss for

improper venue;

(E) Motion for compliance with Rule 20 and

21 regarding improper joinder;

(KF) Rule 12(b)(7) motion dismiss for failure

to join indispensable parties;

(G) Rule 12(b\6) motion to dismiss for

faiture to state a claim for lack of

Rec. Doc. 77

App. 65

standing, nonrecoverable damages, and

prescription.”

On June 2, 2004, the 12(b)(6) motions (Paragraph

(G) above) were converted to motions for summary

judgment since their disposition required reference to

documents outside of the complaint. The parties were

allowed ten days to submit additional information to

be considered in connection with the motion for

summary judgment.” On June 14, 2004, plaintiff

submitted the affidavit of Frank Minvielle, owner of

plaintiff Frank C. Minvielle, L.L.C. Plaintiff sub-

sequently filed the affidavits of Juliet and Finis

Cowan, regarding the previous owners’ knowledge of

the condition of the land at issue.'” Defendant filed a

motion to strike the affidavits, maintaining that

portions of the affidavits were not based on the

personal knowledge of the aftfiants."” Plaintiff filed an

opposition to the motion to strike and the parties filed

supplemental briefs regarding prescription and

indispensable parties."

Rec. Doc. 19.

On June 14, 2004, plaintiff submitted the affidavit of

Frank Minvielle, owner of plaintiff Frank C. Minvielle, L.L.C.

Plaintiff subsequently filed the affidavits of Juliet and Finis

Cowan, regarding the previous owners’ knowledge of the

condition of the land at issue. The parties filed supplemental

briefs regarding prescription

' Rec. Doc. &6

Rec. Doc. 89

Rec. Docs. 90, 92, 93, 96

4

App. 66

Analysis

The district court, sitting in diversity juris-

diction, must apply the substantive law of Louisiana,

while employing Federal procedural rules. Erie R. Co.

v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188

(1938). In the absence of a valid Federal Civil Rule

addressing the point, the court must determine

whether a particular rule is procedural or substantive

by considering the “twin aims of the Erie rule:

discouragement of forum-shopping and avoidance of

inequitable administration of the laws.” Hanna v.

Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8

(1965).

(A) Rule 12(b)(1) motion for deference to the

primary concurrent jurisdiction

Plaintiff seeks damages for IMC’s disposal,

discharge, and storage of highly toxic chemicals into

plaintiff’s property. Plaintiff also seeks funds to

conduct a scientific analysis of the extent and nature

of the contamination, the costs to restore the prop-

erty, punitive damages, and attorneys’ fees. IMC

argues that all of the claims are subject to the

primary concurrent jurisdiction of the Louisiana

OMce of Conservation (“LOC”) and the Louisiana

Department of Environmental Quality (“DEQ”), and

that this court should allow those agencies to address

the environmental remediation issues prior to judicial

consideration of liability and damage issues.

App. 67

Louisiana Revised Statute 30:1(D) provides that

the LOC has jurisdiction over claims regarding: “the

disposal of any waste product into the subsurface by

means of a disposal well and the regulation of all

surface and storage waste facilities incidental to oil

and gas exploration and production, shall be within

the jurisdiction of the department.” The LOC also has

jurisdiction over issues regarding surface and storage

waste facilities incidental to oil and gas exploration

and production and abandoned oil and gas wells. La.

R.S. 30:4(C). The DEQ has jurisdiction over remedial

action plans and has set forth a process by which

remediation plans are approved and enforceable.

La.R.S. 30:2286.1.

Under Louisiana law, the deference to the com-

missioner for an initial decision on matters within the

expertise of the LOC, which is contemplated by the

doctrine of primary jurisdiction, is a matter within

the sound discretion of the trial court. Magnolia Coal

Terminal v. Phillips Oil Co., 576 So.2d 475, 489 (La.

1991). The two major considerations underlying the

doctrine are the need for uniformity 1n various areas

of regulated industry, and the special administrative

expertise attributable to agencies due to their

intimate working associations with industries they

regulate. South-West Utilities v. S. Cent. Bell Tel., 339

So.2d 425 (La.1976). Louisiana’s doctrine of primary

jurisdiction is substantive and it requires the federal

courts to exercise discretion as if it were a Louisiana

state court. Mills v. Davis Oil Co., 11 F.3d 1298, 1304-

1304 (5th Cir. 1994).

App. 68

Landowners in Louisiana have no duty to seek

relief from an administrative agency before filing suit

against an oil company. Corbelio v. Iowa Production,

850 So.2d 686 (La. 2003). Plaintiff’s action for

damage to its property is a matter of private law.

Magnolia Coal Terminal v. Phillips Oil Co., 576 So.2d

475, 483 (La. 1991). In Magnolia Coal, the Louisiana

Supreme Court upheld a trial court’s decision, in

deciding a remediation issue, refusing to defer to the

Commissioner of Conservation as a matter of primary

jurisdiction. The court stated that “damages from soil

pollution are within the conventional knowledge and

expertise of a trier of fact and the court of appeal

erred in deciding that the plaintiff’s damages cannot

be fixed until the commissioner of conservation holds

a new hearing.” Magnolia Coal, 576 So.2d at 484.

Considering the applicable law, and the fact that

plaintiff opposes it, the court concludes that pre-

liminary submission of the claims to the LOC and

DEQ is not necessary. Accordingly, the Rule 12(b)(1)

motion for deference to the primary concurrent

jurisdiction of the LOC and DEQ is DENIED.

(B) and (C): Motion to dismiss premature claims,

or for more definite statement

1. Prematurity involving LOC and DEQ

IMC argues that plaintiff’s claims are premature

because plaintiff has not sought review with the LOC

or DEQ, and therefore has failed to exhaust the ad-

ministrative remedies. As discussed above, exhaustion

App. 69

of administrative remedies is not necessary. As dis-

cussed in Corbello, supra, landowners have no duty to

seek relief from an administrative agency before

filing suit against an oil company.

IMC asserts that claims under the Conservation

- Act for contamination of “usable ground water” must

be made with the LOC and DEQ, pursuant to La. R.S.

30:1 and 30:2015.1 (requiring notification of DEQ

in certain cases). Those statutes are inapplicable.

Plaintiff has specifically stated that it does not seek

redress for public issues, but instead has limited its

claims to private causes of action. Louisiana Revised

Statute 30:1 requires exhaustion prior to judicial

review for claims by “a person aggrieved” by a law,

rule, regulation or order made by the assistant

secretary of the office of conservation. Plaintiff has

not asserted that it has been aggrieved by an order of

the LOC or DEQ, and is therefore not limited to a

claim under La. R.S. 30:1."

Nor is La.R.S. 30:14 applicable. The latter stat-

ute authorizes the Commissioner of Conservation to

" La R.S. 30:1 provides:

A person who is aggrieved by any law of this state

with respect to conservation of oil or gas, or both, or

by a provision of this Chapter, or by a rule, regulation,

or order made by the assistant secretary of the office

of conservation hereunder, or by an act done or

threatened hereunder, and who has exhausted his

administrative remedy, may obtain court review by a

sult for injunction or judicial review against the

assistant secretary as defendant

or;

ca

App. 70

enjoin conduct in violation of state laws when

“ongoing or threatened” actions violate conservation

laws of the state. Plaintiff’s claims are for purely

private matters relating solely to the actions of the

defendant oil companies. Plaintiff has specifically

excluded any claims for contamination of usable

ground water and has otherwise avoided claims that

trigger involvement by the Commissioner of

Conservation. Accordingly, IMC’s attempt to require

administrative review by this landowner is without

merit, and the motion to dismiss for prematurity is

DENIED.”

2. Prematurity under leases

IMC contends that plaintiff was required to give

defendants written notice of the alleged breach of

contract and request that defendants correct the

breach prior to filing this suit. IMC asserts that

plaintiff’s complaint is vague and omits specific facts

identifying which leases have been allegedly breached

” To the extent that plaintiff's complaint does mention in

paragraphs 13, 16, 25, and 26 that defendant’s activities have

resulted in contamination of ground water, the court deems

these references merely factual allegations. Since plaintiff

specifically, in paragraph 31, asserts that it is not seeking

damages for contamination or remediation costs for usable

ground water, no such damages are recoverable due to the

exclusion thereof by the complaint. In the event that plaintiff

were to claim damages for contamination or remediation costs of

usable ground water, La. R.S. 30:2015.1, requiring notification of

DEQ, must be followed prior to assertion of any such claims

App. 71

by which defendant, the terms of the leases, the

parties thereto, and the subject lands. IMC reasons

that some of the leases at issue may not have been

terminated yet, and therefore the present claims are

premature.

A review of Exhibit “C” to plaintiff’s opposi-

tion memorandum shows that IMC’s predecessor,

Petro-Lewis Funds, Inc. was involved with a lease

that resulted in work done on plaintiff’s land.

Although plaintiff failed to specify, in its pleadings,

the subject tract of land and whether the lease had

expired, plaintiff’s counsel addressed the issue at

oral argument. The Petro-Lewis lease involved the

Delcambre Well No. 1, which was plugged and

abandoned in 1977. By its own terms, the lease

expired 90 days after production ceased. IMC

conceded that the lease expired in 1977. Thus, the

motion to dismiss for prematurity under the lease is

DENIED.

(D) Rule _ 12(b)(3) motion to dismiss for _ im-

proper venue

IMC maintains that:

To the extent that the plaintiff’s claims must

be brought against the LOC pursuant to La.

R.S. 30:12(A)(2) as discussed in the motion to

dismiss for prematurity raised above, the

19th Judicial District Court (and therefore

the U.S. Dnistrmect Court for the Middle

District of Loutsiana) is the court of proper

e a i a we _*

App. 72

venue for the claims raised by plaintiff’s

Petition.

As discussed above, IMC’s motion to dismiss for

prematurity regarding the necessity to file suit

against the Commissioner of Conservation is without

merit. Accordingly, the motion to dismiss for lack of

venue based on the same arguments is DENIED.

(E) Motion for compliance with Rule 20 and

21 regarding improper joinder

IMC maintains that plaintiff improperly joined

the defendants in this action. Since all other

defendants have now been dismissed, this motion is

DENIED as moot.

(F) Rule 12(b)(7) motion dismiss for failure to

join indispensable parties

IMC argues that there may be other parties

which need to he added, either as defendants or

plaintiffs. Plaintiff argues that there are no other

parties which need to be joined.

At oral argument, the court noted that the sellers

retained a '/2 percent mineral interest in the land sold

to plaintiff. The Act of Cash Sale states:

Sellers reserve and retain unto themselves,

their heirs, successors and assigns, an

undivided ‘2 [percent| of all oil, gas, and

other minerals, including sulphur, in, on and

under the aforedescribed property with the

App. 73

right and authority to exercise all necessary

means for the’ prospecting, exploiting,

producing and development of the minerals,

including all rights of access to and use of

the surface of the land as may be necessary

or incident to this reservation.”

Rule 19(a) F-R.Civ. P. states that parties are

necessary to an action if: “(1) in the person’s absence

complete relief cannot be accorded among those

already parties, or (2) the person claims an interest

relating to the subject of the action and is so situated

that the disposition of the action in the person’s

absence may (i) as a practical matter impair or

impede the person's ability to protect that interest or

(ii) leave any of the persons already parties subject to

a substantial risk of incurring double, multiple, or

otherwise inconsistent obligations by reason of the

claimed interest.”

The Cowans do not own the land in question. The

record indicates they are aware of this action and

have not attempted to state an interest, nor have

any other indispensable parties been identified. The

motion to dismiss for failure to join necessary parties

is therefore DENIED.

’ Exhibit 8 to Rec. Doc. 41

App. 74

(G) Rule _12(b)(6) Motion to Dismiss - Con-

verted to Motion for Summary Judgment

IMC filed a motion to dismiss for failure to state

a claim. Since the parties filed matters outside of the

pleadings which must be considered in order to

determine the motion, the court notified the parties

that the motion would be considered a motion for

summary judgment under Rule 56. F. R. C.P. 12(b).

Summary judgment “shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law.” Fed.R.Civ.P.56. An

issue is material if its resolution could affect the

outcome of the action. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986). In deciding whether a fact issue has been

created, the court must view the facts and the

inferences in the lhght most favorable to the

nonmoving party. Olabisiomotosho v. City of Houston,

185 F.3d 521, 525 (5th Cir.1999).

1. Prescription

a. Contra Non Valeniium

Plaintiff concedes that the complaint was filed

over twenty years after the alleged breach of contract

and tortious conduct by defendants. Considering that

tort claims prescribe one year after the date of the

alleged tortious conduct, and that contractual claims

App. 75

prescribe ten years after the alleged breach, the

claims arising from defendants’ actions on plaintiff’s

property were prescribed on the face of the petition.

Accordingly, the burden to establish an exception to

the rule of prescription lies with plaintiff. Terrebonne

Parish School Bd. v. Mobil Oil Corp., 310 F.3d 870,

885-886 (5th Cir. 2002). The plaintiff is required to

adduce evidence sufficient to raise a genuine issue of

material fact regarding its claim of an exception from

prescription. Mere allegation or innuendo is insuffi-

cient.

Plaintiff relies on the theory of contra non

valentum to avoid prescription barring the claims in

this case. According to this theory, prescription does

not begin to run until “a plaintiff either knew or

should have known of a cause of action, even if that

knowledge does not occur until long after the

wrongful conduct at issue has occurred.” Simmons uv.

Templeton, 723 So.2d 1009, 1012 (La.App. 4 Cir.

11/10/98). Prescription runs from the time that the

plaintiff has actual or constructive knowledge of the

act, which has been defined as “the time at which the

plaintiff has information sufficient to excite attention

and prompt further inquiry.” National Council on

Compensation Ins. v. Quixx Temporary Serv., Inc., 665

So.2d 120, 124 (La.App. 4 Cir. 11/16/95). Thus,

prescription does not begin to run at the first

indication that the plaintiff may have suffered harm,

but rather it begins to run “when plaintiff has

reasonable basis to pursue claim against specific

defendant.” Jordan v. Employee Transfer Corp., 509

App. 76

So.2d 420, 424 (La.1987). The heart of the inquiry

into constructive knowledge is the reasonableness of

plaintiff’s inaction. /d.

Plaintiff submitted the affidavit of Frank

Minvielle, owner of plaintiff Frank C. Minvielle,

L.L.C., which states that he did not have knowledge

of a claim or reason to suspect that a claim existed

until August 2003, when a geologist issued a report

discussing possible contamination of plaintiff’s

property.

IMC does not contest that plaintiff did not have

knowledge regarding the alleged contamination until

just prior to the filing of suit. Plaintiff did not

purchase the land until 1998, well after the alleged

tortious conduct occurred. However, the claims may

be prescribed if the previous owners of the land knew

or should have known of the possible claims. If they

did not, then under the doctrine of contra non

valentum, prescription only began to run when

plaintiff learned of the potential claims.

In response to the order setting oral argument,

plaintiff submitted the affidavits of Finis E. Cowan,

Jr. and Juliet D. Cowan. The Cowans are married

and Mrs. Cowan’s mother, Mrs. Juliet Delcambre,

owned the land at issue until her death in 1988, at

which time the land passed to Mrs. Cowan and her

children.”’ Mr. Cowan explained that in 1982,

App. 77

PanCanadian Petroleum, Encana’s predecessor, paid

Mrs. Delcambre $21,000.00 for possible contami-

nation from its operations.” With regard to IMC’s

predecessor Petro-Lewis’s oilfield operations, Mr.

Cowan states, “I have never had any information that

would lead me to know or believe that there was any

contamination problems at the Petro Lewis site.”

Mrs. Cowan states, “I have reviewed the above

affidavit and discussed it with my husband. To the

best of my knowledge the statements contained in his

affidavit are true and correct.””

IMC argues that the affidavits of the Cowans are

insufficient to defeat the motion for summary judg-

ment.” IMC maintains that the Cowans’ affidavits

were not based on personal knowledge regarding

what the pre-1988 owners knew. Mrs. Cowan inher-

ited the land from her mother in 1988. Additionally,

IMC argues that since the Cowans’ affidavits contain

language evidencing that they did not know where

the Petro Lewis well was located, they could not

provide information based upon personal knowledge

regarding possible contamination at the site.

The court concludes that the affidavits of the

Cowens establish that prior to selling the property to

plaintiff, they did not know of any contamination, nor

was there any indication that the property may have

Rec. Doc. 86

Rec. Doc. 86

“ Rec. Doc. 89

App. 78

been contaminated by Petro-Lewis. IMC’s argument

that the Cowans did not have personal knowledge

regarding the facts relating to the Petro-Lewis well is

unpersuasive. The Cowans attest that they had no

information regarding possible contamination or

claims against Petro-Lewis, and no reason to believe

that there was any contamination or other problems

with the land prior to it being sold to plaintiff. Their

lack of knowledge is explained by their further

assertions that they were far removed from the

operations and did not even know the exact location

of the well. The Cowans state that they relied upon

the oilfield companies to perform their work

according to the leases. Thus, absent some affir-

mative communication from a company, such as

PanCanadian’s statement to the landowners that it

had contaminated the site, there was no reason to

believe that the companies operating on the land

were doing so in a deficient manner. Moreover, since

the owner of the land prior to 1988, Mrs. Delcambre,

is deceased, it would be virtually impossible for

plaintiff to establish Mrs. Delcambre’s knowledge

regarding the land without relying upon the

affidavits of the Cowans, from whom Mrs. Delcambre

sought advice on issues concerning the land. It is

clear that the Cowans did not know cf contamination,

nor do they have reason to believe that Mrs.

Delcambre had any such knowledge. IMC concedes

that the Cowans are testifying truthfully in their

affidavits.

App. 79

Considering the foregoing, the court concludes

that no one had reason to believe that there was a

problem with the land prior to the 2003 geologist’s

report indicating possible contamination. The doc-

trine of contra non valentum therefore suspended the

running of prescription until plaintiff had knowledge

of the claims shortly before filing suit. IMC’s motion

for summary judgment is’ therefore DENIED

Additionally, IMC’s motion to strike the affidavits of

the Cowans is DENIED.

b. Continuing tort

The doctrine of continuing tort presents an

exception to the one-year prescriptive period. “A

continuing tort 1s occasioned by |the continual]

unlawful acts, not the continuation of the ill effects of

an original, wrongful act.” Crump v. Sabine River

Authority, 737 So.2d 720, 728 (La.6/29/99).°

Addressing the requirement that there be continuous

conduct by the defendant, the Louisiana Supreme

Court stated that “[tjJhe continuous conduct contem-

plated in a continuing tort must be tortious and must

be the operating cause of the injury.” Jd. at 729 n. 7.

In Crump, the Louisiana Supreme Court rejected the

Although the decision regarding contra non valentum

defeats the motion for summary judgment on prescription at

this time, the argument concerning the continuing tort doctrine

will be addressed since there is a possibility that a fact finder

will find that the doctrine of contra non valentum is inapplicable

to the case

App. 80

contention that a continuing breach of duty could

consist of a defendant’s failure to remedy the harm

caused by the initial tortious conduct, stating that

“the breach of the duty to right the wrong and make

the plaintiff whole simply cannot be a continuing

wrong which suspends the running of prescription, as

that is the purpose of any lawsuit and the obligation

of every tortfeasor.” Jd. at 729.

The Louisiana Supreme Court summarized the

doctrine of continuing tort as it applies in Louisiana

property law cases as follows:

When a defendant’s damage-causing act 1s

completed, the existence of continuing dam-

ages to the plaintiff, even progressively

worsening damages, does not present succes-

sive causes of action accruing because of a

continuing tort. Derbofen v. TL. James &

Co., 355 So.2d 963 (La.App. 4th Cir.1977),

writs denied, 357 So.2d 1156, 1168(1.a.), cert.

denied, *886 439 U.S. 911, 99 S.Ct. 280, 58

L.Ed.2d 257 (1978).

In re Moses, 788 So.2d 11738, 1188 (La. 2001). The

practical rule adopted by Louisiana courts in property

damage cases is that prescription begins to run when

the continuous tortious conduct is ahated

The case law distinguishes between ongoing

causes and tortious conduct that has ceased. In cases

such as Patout, where landfill waste was deposited

onto plaintiff's property via trespass, and South

Central Bell, where gas tanks continued to leak, the

ongoing cause was the failure of the defendants to

App. 81

remove the damage causing structure. Estate of Patout

vu. City of New Iberia, 708 So.2d 526 (La. App. 3 Cir.

3/6/98); South Central Bell Telephone Co. v. Texaco,

Inc., 418 So. 2d 531 (La. 1982). In South Central Bell,

leaking underground storage tanks caused contin-

uous damages to plaintiff’s underground telephone

wires. Because both the conduct — the leaking — and

the damages continued, the tort was held to be a

continuous.

In Mouton v. State of Louisiana, 525 So.2d 1136

(La.App. 1st Cir.1988), however, disposal of waste in

the ground was not a continuing tort. The court held

that the tortious conduct was the dumping of waste

onto plaintiff’s property and, since it occurred beyond

the one year prescriptive period, the action had

prescribed. Similarly, in Badalamenti v. Chevron

Chemical Co., 1995 WL 386868, *2 (E.D.La.), the

court found that the tortious conduct at issue was the

disposal of waste onto plaintiff's property. The

operating cause of plaintiff’s injury did not continue

beyond the placement of the waste in the ground, and

therefore, dcfendant’s alleged conduct did _ not

constitute a continuing tort because there was no

ongoing cause. Likewise in Terrebonne Parish School

Bd. v. Mobil Oil Corp., 310 F.3d 870, 885-886 (5th Cir.

2002), the Fifth Circuit upheld the distnct court’s

finding that the continuing tort doctrine was

inapplicable. In Jerrebonne v. Mobil, pursuant to a

mineral lease, the defendant dredged a canal during

its oil operations. After completion of the operations,

the defendant left the canal intact. Plaintiff sued, 40

App. 82

years later, arguing that the existence of the canal

contributed to erosion of its land and the demise of

the marshland habitat. The Fifth Circuit found that

the unlawful conduct was not continuing because the

completed well was abandoned with the canal left

intact in 1959. Thus, even though the damage, i.e. the

erosion, may have been continuing, the continuing

tort doctrine was inapplicable because there was no

continuing cause.

Here, like Mouton, the tortious conduct was the

disposal of waste into plaintiff’s property. The

operating cause of plaintiff’s injury was the actual

disposal or storage of the oilfield waste in plaintiff’s

property. The conduct abated when the defendant’s

ceased operations, which was in excess of 20 years

ago. Simply because the damages brought about by

such conduct may have continued, that is insufficient

to support application of the continuing tort doctrine.

Accordingly, the continuing tort doctrine is

inapplicable to the case at bar.

2. Lack of standing

Plaintiff seeks damages based on JMC’s breach of

the 1961 lease and for IMC’s tortious conduct. IMC

argues that since plaintiff was not a party to the

contract and the previous owners’ rights under the

1961 lease were not specifically assigned to plaintiff,

plaintiff lacks standing to bring the breach of contract

claims. Moreover, IMC maintains that since the

tortious conduct occurred prior to plaintiff owning the

App. 83

property, it cannot assert tort claims for damages.

Plaintiff maintains that it has standing because it is

a third party beneficiary of the contract and because

tort damages can be brought regardless of the timing

of the damages.

a. Contractual claims

Actions arising from a breach of contract or lease

of property are classified as involving personal mghts

rather than real rights. Prados v. South Central Bell

Tel. Co., 329 So.2d 744, 749 (La. 1976), citing Leonard

v. Lavigne, 245 La. 1004, 162 So.2d 341 (1964);

Harwood Oil and Mining Co. v. Black, 240 La. 641,

124 So.2d 764 (1960) overruled on other grounds by

Salvex, Inc. v. Lewis, 546 So.2d 1309 (La.App. 3d

Cir.1989); 2 A. YIANNOPOULOS, LOUISIANA CIviIL Law

TREATISE — PROPERTY, s 95, pp. 275-278 (1st Ed. 1967).

Real rights and obligations transfer from the seller to

the buyer without any special provision. La.Civ.Code

art. 1763. Personal rights, however, do not transfer in

the absence of a special assignment of rights to the

buyer. La.Civ.Code art. 1764. Official Comment (d) of

article 1764 states that, “a particular successor does

not acquire, without stipulation to that effect, any

personal rights that his author has with respect to

the thing.”

There is no dispute that plaintiff has no direct

privity of contract with IMC, nor does plaintiff allege

that it obtained any assignment of rights in the the

App. 84

Act of Sale from the previous owners, other than

warranty of title. The Act of Sale provides:

... Sellers, who, for the price and on the

terms and conditions hereafter expressed

hereby sell, assign, transfer and deliver with

all legal warranties and with full sub-

stitution and subrogation in and to al] the

rights and actions of warranty which Sellers

have or may have against all preceding

owners and vendors unto... Purchaser.”

Such a subrogation clause applies only to warranty of

title and does not assign personal rights for damages

arising from previous leases involving the property

Prados, supra, 329 So.2d 744, 749 (La. 1976).

Plaintiff argues, rather, that it is a third-party

beneficiary of a “stipulation pour autri” contained in

the the contract between the earlier landowners and

IMC’s predecessor. LA.CIv.CODE ANN. art 1978 pro-

vides as follows:

Art. 1978. Stipulation for a third party

A contracting party may stipulate a benefit

for a third person called a third party

beneficiary.

Once the third party has manifested his

intention to avail himself of the benefit, the

parties may not dissolve the contract by

" Exhibit 8 to Rec. Doc. 41

App. 85

mutual consent without the beneficiary’s

agreement.

Comment (b) to ART. 1978 states that “the

beneficiary's intention to accept the benefit may be

made known in any manner, even implied.” Thus, by

simply filing suit, plaintiff has made known its

intention to accept the benefit, if it exists.

The specific language of the contract in question

determines whether a stipulation pour autrui has

been created. The Fifth Circuit has observed the

necessity of clarity in any contractual provision

intended to contain a stipulation pour autrut..

... [SJuch a promise, or a stipulation pour

autrui, “is never presumed. Rather, the

intent of the contracting parties to stipulate

a benefit in favor of a third party must be

made manifestly clear.” Homer Natl Bank v.

Tri-District Dev. Corp., 534 So.2d 154, 156

(La.App. 3d Cir.1988), writ dented, 536 So.2d

1236 (La.1989). As we stated in New Orleans

Public Service, Inc. v. United Gas Pipe Line

Co., 7382 F2d 452 (5th Cir.) (en bance), cert.

denied sub nom. Morial v. United Gas Pipe

Line Co., 469 U.S. 1019, 105 S.Ct. 434, 83

L.Ed.2d 360 (1984):

Louisiana law ts settled that for

there to be a stipulation pour autrui

there must be not only a third-party

advantage, but the benefit derived

from the contract by the third party

may not merely be incidental to the

contract. Rather, the third-party

App. 86

benefit must form the condition or

consideration of the contract in

order for it to be a stipulation pour

autrut. Moreover, a stipulation pour

autrui will be found only when the

contract clearly contemplates the

benefit to the third person as its

condition or consideration.

732 F.2d at 467 (internal quotations and

citations omitted).

Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d

1138, 1147 (5th Cir.1993).

Plaintiff relies on Hazelwood Farm, Inc. uv.

Liberty Oil & Gas Corp., 790 So.2d 93 (La.App. 3rd

Cir.2001), writ denied, 01-2115 (La.7/26/01), 794

So.2d 834, writ denied, 01-2303 (La./10/01), 794 So.2d

836. In Hazelwood, the defendant had conducted oil

and gas exploration and production activities pur-

suant to a contract with a previous landowner. After

purchasing the property, Hazelwood filed suit al-

leging that the defendants’ activities resulted in con-

tamination of the property. Defendant Gulf/Chevron

asserted that Hazelwood was not a party to the lease

and therefore could not bring an action for the breach

of the lease. The court found, however, that Hazel-

wood was the beneficiary of a stipulation pour autrut.

Id. at 100, citing La.Civ.Code art. 1978. The court

noted that several factors are considered in deter-

mining whether a contract provides for a stipulation

App. 87

pour autrut. Id. citing Andrepont v. Acadia Drilling

Co., 231 So.2d 347, 351, 255 La. 347 (1969).*’ The

court looked to the language in the lease, which

provided that “Grantee shall be responsible for all

damages caused by his operations.” The court found

that this language was similar to the relevant phrase

in the Andrepont lease: “The Lessee shall be respon-

sible for all damages caused by Lessee’s operations.”

The latter lease had been found to create a stipu-

lation pour autrui, and accordingly, the Hazelwood

court concluded that the language in the lease must

be interpreted as providing a stipulation pour autrui

in favor of Hazelwood.

In Andrepont supra, the landowner allowed

Andrepont to farm soybeans on a 35-acre tract in

return for twenty percent of his crop. Later, the land

and mineral owners of the tract executed an oil and

gas lease allowing the lessee to enter the land to

explore and produce oil, gas, and other minerals. The

* The factors are: “(1) The existence of a legal relationship

between the promisee and the third person involving an obliga-

tion owed by the promisee to the beneficiary which performance

of the promise will discharge; (2) the existence of a factual

relationship between the promisee and the third person, where

(a) there is a possibility of future liability either personal or real

on the part of the promisee to the beneficiary against which

performance of the promisee (sic) will protect the former; (b)

securing an advantage for the third person may beneficially

affect the promisee in a material way; (c) there are ties of

kinship or other circumstances indicating that a benefit by way

of gratuity was intended.” Andrepont, 231 So.2d at 351.

App. 88

oil company’s operations on the tract were detri-

mental to Andrepont’s soybean crop:

** * (Djuring July, the oil and gas lessee

entered upon the land, built a board road

across Andrepont’s field, dug waste pits and

proceeded to drill a well in search of

minerals. Construction of the road, the drill

site and pits destroyed part of the crop and

impaired drainage in the remainder of the

soybean field. The lack of adequate drainage

left water standing in the field and made it

impracticable to work the crop. As a result,

the remainder of Andrepont’s crop was

damaged by ‘scalding’ and excessive weeds.

Andrepont, 231 So.2d 347, 353-355. The Louisiana

Supreme Court examined the lease form, which

initially read, “The Lessee shall be responsible for all

damages to timber and growing crops of the Lessor

caused by Lessee’s operations.” /d. at 351. The phrase

“to timber and growing crops of Lessor” was then

deleted so that the lease read, “The Lessee shall be

responsible for all damages caused by Lessee’s

operations.” Jd. The Court found that this language

created a stipulation pour autrut. The court wrote:

|Andrepont] is seeking to enforce a benefit

stipulated in his favor by the landowner

lessor as a condition of a commutative con-

tract between the landowner lessor and the

oil and gas lessee. Defendants, as assignees

of the oil and gas lessee, are, therefore,

parties to the contract in which the stipu-

lation 1s a condition... .”

App. 89

Id. at 356. The court reasoned that Andrepont had a

direct right of action against the lessee to recover his

damages as beneficiary of the stipulation.

In Hargroder v. Columbia Gulf Transmission Co.,

290 So.2d 874, 876 (La. 1974), the court found that a

stipulation pour autruit was created by language in

a servitude agreement providing that defendant

“agrees to pay such damages which may arise to

growing crops, timber, or fences from the construction

of the [pipeline].”

An examination of the lease in question shows

that the language contained therein is materially

distinguishable from that presented in Hazelwood

and Andrepont, and Hargroder. Unlike the open-

ended provisions in Hazelwood and Andrepont — “the

lessee shall be responsible for all damages” — the

lease here contemplates damages only “to Lessor and

Lessor’s tenants.” The relevant provision of the 1961

lease sub judice reads as follows:

Lessee shall promptly pay Lessor and

Lessor’s tenants a reasonable sum for any

damage resulting to said premises or the

crops or improvements thereon which may be

caused by or result from the operations of

Lessee hereunder. Within ninety (90) days

after the cessation of drilling operations on

any well located on the leased premises,

Lessee, or its successors and assigns, shall

fill and level all slush pits and shall remove

the drilling equipment and materia] used in

connection therewith from the drill site and

App. 90

shall restore said drill site to substantially

its prior condition, so far as can reasonably

be done, as concerns any material] change in

the surface of such premises caused by or

resulting from operations of Lessee here-

under.

Although the second sentence requiring restora-

tion of the property seems to impose a general

obligation of restoration, the provision must be read

as a whole. The only provision which discusses a right

to damages is limited to damages payable to “Lessor

and Lessor’s tenants.” Under Louisiana case law,

such language does not create a stipulation pour

autrui in favor of plaintiff. In Broussard v. Northcott

Exploration Co., Inc., 481 So.2d 125, 127 (La. 1986),

the court found that no stipulation pour autri was

created by a clause stating, “The Lessee shall be

responsible for all surface damages of the Lessor

caused by the Lessee’s operations” because the lan-

guage was restricted to damages suffered by the

lessor. The court held that the intent of the parties

was key in determining whether a stipulation pour

autrui is created. /d., 481 So. 2d at 127. A later court

cited Broussard in concluding that no stipulation

pour autrui arises in the absence of a clear intention

a Oe oR ene

Lo penetit iuture suriace owners:

Even viewing the clause as a possible stip-

ulation pour autrut (stipulation for benefit of

a third party), the result would be the same.

Broussard v. Northcott Exploration Company,

Inc., 481 So.2d 125 (La.1986); Hargroder v

Columbia Gulf Transmission Co., 290 So.2d

App. 91

874 (La.1974); Andrepont v. Acadia Drilling

Co., Inc., 255 La. 347, 231 So.2d 347 (1969).

The test annunciated in Broussard states

that “[iJn order to determine if a stipulation

{pour autrui] exists, we must look to the

intention of the parties at the time the min-

eral lease was negotiated.” Since the fore-

going analysis indicates no such intention to

benefit future surface owners, there was no

stipulation pour autrui in favor of plaintiffs

in this case.

Ashby v. IMC Exploration Co., 506 So.2d 1193, 1196

fn.7 (La. 1987).

In Prados, supra, 329 So.2d at 751, a land owner

granted a lease to South Central Bell Telephone

Company, allowing it to erect buildings and other

structures on the land. The lease required the com-

pany to remove the structures at the completion of

the lease. Upon termination of the lease, South

Central Bell did not remove the structures, nor did

the owner require removal. Several months later, the

property was sold to Prados. After acquiring the

property, Prados demanded that South Central Bell

remove the structures. The company refused and

Prados filed suit for damages representing the cost of

clearing the property. South Central Bell challenged

Prados’s standing to bring suit based upon a breach of

a former lessee’s obligation to restore the property at

the termination of the lease. Noting that predial

App. 92

leases” involve personal rights, the Louisiana

Supreme Court found that the right to damages was

a personal! right that accrued to the lessor prior to the

sale of the property to Prados. Thus, the court looked

to the act of sale to determine whether the right to

damages was specifically assigned by the pre

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