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Graham v. Consolidation Coal Co.

United States District Court, W.D. Virginia, Abingdon Division

December 10, 2014

DIANNA L. GRAHAM, ET AL., Plaintiffs,
v.
CONSOLIDATION COAL COMPANY, ET AL., Defendants.

Terrence Shea Cook, T. Shea Cook, P.C., Richlands, Virginia, for Plaintiffs.

James R. Creekmore and Blair N.C. Wood, The Creekmore Law Firm PC, Blacksburg, Virginia, Jonathan T. Blank and Kristin Davis, McGuire Woods LLP, Charlottesville, Virginia, David Grant Altizer and Mandy Varney French, Altizer, Walk & White PLLC, Tazewell, Virginia, for Defendants.

OPINION AND ORDER

JAMES P. JONES, District Judge.

Pending before the court is the Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and (7). For the reasons stated, the motion will be granted in part and denied in part.

I.

The plaintiffs' essential claim in this lawsuit is that a mining company, faced with getting rid of excess wastewater from an underground coal mine, and prohibited from discharging the water into local streams, diverted the water into the underground mine voids located beneath the plaintiffs' land.[1] For this conduct, the plaintiffs seek compensatory and punitive damages, as well as injunctive relief.[2]

More specifically, plaintiffs allege that they are the owners of real property called the Beatrice Tracts located in Buchanan County, Virginia, which ownership includes "natural gas reserves, including coal bed methane." (Second Am. Compl. ¶ 5, ECF No. 62.) The coal itself was conveyed away in a severance deed in 1887 by their predecessors in title, and the plaintiffs have not identified the current owner of the coal estate in their Second Amended Complaint.[3] The coal, however, was allegedly mined from the property by the defendant Island Creek Coal Company ("Island Creek") through its Beatrice Mine.

The plaintiffs allege that the defendant Consolidation Coal Company ("Consolidation"), in the course of mining on nearby property, caused "untreated water" containing "pollutants, contaminants, and hazardous substances, " to be "secretly place[d]" in the underground mine voids left in the Beatrice Mine. ( Id. ¶¶ 14, 16, 22, 26). Island Creek is allegedly owned by the defendant Consol Energy, Inc. ("Consol"), which is also alleged to be the parent company of Consolidation. The plaintiffs allege that the defendants intentionally concealed the placement of water in the mine voids.

The plaintiffs contend that these actions have damaged them by making production of their existing natural gas more difficult or impossible. They assert causes of action against Consolidation based on trespass, trespass-assumpsit, negligence, nuisance, waste, and conversion. They also assert a cause of action against Island Creek for waste. The plaintiffs have not asserted any causes of action against Consol; however, they have requested an award of punitive damages against all defendants.

In their Motion to Dismiss, the defendants assert three arguments. Pursuant to Rule 12(b)(6), the defendants argue that the plaintiffs' cause of action for waste against Consolidation must be dismissed because the plaintiffs have not alleged that Consolidation had possession of the property where the alleged waste occurred. The defendants' also assert that the plaintiffs' cause of action seeking an award of punitive damages against Consol must be dismissed because punitive damages cannot serve as a standalone cause of action absent an independent tort claim against Consol. Additionally, the defendants contend that the plaintiffs have failed to join an indispensable party, the coal estate owner, pursuant to Federal Rule of Civil Procedure 19.

The Defendants' Motion to Dismiss has been briefed and is ripe for decision.

II.

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint to determine whether the pleader has properly stated a cognizable claim. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating a pleading, the court must accept as true all well-pleaded facts and construe those facts in the light most favorable to the pleader. Ashcroft, 556 U.S. at 678.

The defendants assert that Count VI of the Second Amended Complaint, asserting a cause of action for waste against Consolidation, must be dismissed because the plaintiffs have not alleged that Consolidation had possession of the property where the alleged waste occurred. The defendants argue that establishing possession of ...


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