Outlaw v. Plantation Pipe Line Co.

MARY JOSEPHINE OUTLAW, JAMES GREGORY OUTLAW, Plaintiffs-Appellants, v. PLANTATION PIPE LINE COMPANY, KINDER MORGAN ENERGY PARTNERS, L.P., Defendants-Appellees.

No. 21-11787

United States Court of Appeals, Eleventh Circuit

July 22, 2022

DO NOT PUBLISH

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 4:20-CV-00047-TCB

Before BRANCH, BRASHER, and LAGOA, Circuit Judges.

LAGOA Circuit Judge

Plaintiffs-Appellants Mary Outlaw and her son, James Outlaw, (the "Outlaws") appeal the district court's order granting summary judgment for Defendants-Appellees Plantation Pipe Line Company ("PPL") and Kinder Morgan Energy Partners, L.P. ("KMEP"), on the Outlaws' claims for negligence, trespass, nuisance, and strict liability related to the purported contamination of a well on the Outlaws' property. In granting summary judgment for Defendants, the district court (1) denied the Outlaws' motion under Federal Rule of Civil Procedure 56(d) to defer consideration of Defendants' summary judgment motions and (2) construed KMEP's motion for summary judgment as a motion for dismissal under Federal Rule of Civil Procedure 4(m) with respect to failure to effect service of process which the court granted. For the reasons discussed below, we affirm the district court's order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mary Outlaw owns several acres of property in Rome, Georgia, (the "Property") and lived on the Property until 2018. Her son, James, has lived on the Property since 2011. The Property is adjacent to a petroleum pipeline that runs from PPL's facility in Bremen, Georgia, to its facility near Knoxville, Tennessee (the "8KX pipeline").

On February 20, 2018, Mary's other son, Mark Outlaw, contacted PPL to report potential contamination of a well located on the Property. PPL sent out technicians that day to investigate and perform tests. The PPL technicians looked for signs of a leak in the pipeline and took water samples, but they did not find any leaks or signs thereof. While the tests of the water samples showed that the water contained some petroleum-related compounds, the testing also revealed that the water contained several other chemical compounds not found in the gasoline transported in the 8KX pipeline, but instead those that are typically used in solvents. Based on these findings, PPL concluded that if there was water contamination, it was not from the 8KX pipeline, as the petroleum-related compounds in the water were present in many other non-gasoline products such that their mere presence was not indicative of gasoline release. Mark also had his own tests done on the water samples at the University of Georgia. Those test results showed the presence of hydrocarbons in the gasoline range in the water. But the University of Georgia did not test for other chemicals or compounds.

Two years later, in February 2020, a neighbor reported a potential pipeline spill on his property from the same 8KX pipeline. PPL took the pipeline temporarily out of service, confirmed there was a release, and made repairs within the month. A report on this pipeline release concluded that it was of small volume and that most of the accumulation was (1) concentrated in an abandoned well not located on the Outlaws' property, and (2) removed from the neighbor's property. The report on the 2020 spill noted that "crews arrived onsite . . . and found an area of discolored and stressed grass with gasoline odor." The 2020 report stated that "[t]he presence of an active release was confirmed when gasoline was observed dripping from a crack in the pipe." "Chemical analysis of the [substance] indicated it [was] gasoline," and PPL acted quickly to remove the leaked gasoline and the impacted soil. Investigation into the 2020 release did not uncover significant accumulations or show that significant volumes of released product had passed through subsurface areas. And there is no evidence in the record that the 2020 leak impacted the Outlaws' property.

On February 20, 2020-a few days after the spill on the neighbor's property-the Outlaws sued PPL and KMEP, asserting that gasoline leaked from the 8KX pipeline and contaminated soil and the well on the Property. The Outlaws asserted claims for: (1) negligence; (2) trespass; (3) nuisance; and (4) strict liability. And they sought: (1) relief for property damage; (2) relief for emotional distress; (3) punitive damages; (4) remediation; (5) post-judgment interest, costs, and attorneys' fees based on bad faith; and (6) other relief the Court deems just and proper.

PPL was served through its registered agent, Capitol Corporate Services, Inc. ("Capitol"), on February 26, 2020. The Outlaws also sought to serve KMEP through Capitol, but Capitol did not accept service because it was not KMEP's registered agent and because KMEP was not registered to do business in Georgia. Capitol returned service unexecuted to the Outlaws' counsel and notified them they were not KMEP's registered agent. The Outlaws made no further attempts to serve KMEP.

PPL and KMEP answered the complaint on March 18, 2020, in which, among other things, KMEP asserted an affirmative defense of insufficient service of process.^[1] The same day, the district court issued an order regarding the outbreak of COVID-19, which extended discovery for thirty days as to any case where discovery had already started or would start by April 16, 2020. Discovery began in this case on April 17, 2020-thirty days after PPL and KMEP filed their answer. Therefore, this case did not receive a thirty-day extension under the COVID order, and discovery was set to end on December 18, 2020. Separately, in response to the pandemic, the chief judge of the Northern District of Georgia issued General Order 20-01. General Order 20-01 and its amendments extended "trial specific deadlines" along with jury duty, and in-person court appearances. General Order 20-01 "[did] not affect the [c]ourt's consideration of civil or criminal motions that can be resolved without oral argument."

The parties filed their joint report and discovery plan on April 17, 2020. In this plan, the parties stated that they "antici-pate[d] delays in the discovery period as a result of governmental orders issued to reduce the spread of the COVID-19 virus and prohibiting non-essential contact between individuals," and requested the longest possible discovery track allowed under the Northern District of Georgia's Local Rules: eight months. See N.D.Ga. Local R. 26.2(A). The district court approved their discovery plan.

After the close of discovery, PPL and KMEP filed a joint motion for summary judgment, contending that the evidence demonstrated there was no genuine dispute of material fact. KMEP also separately moved for summary judgment because it had not been properly served with process. After responding to both motions for summary judgment, the Outlaws filed a Rule 56(d) motion to defer or deny Defendants' motions. It was not until responding to these summary judgment motions-almost three months after the close of discovery-that the Outlaws informed the district court that they had taken no depositions, hired an expert witness, or drafted an expert report.

On April 23, 2021, the district court entered an order that: (1) granted the Defendants' joint motion for summary judgment; (2) construed KMEP's motion for summary judgment as a motion for dismissal under Rule 4(m); (3) granted KMEP's construed Rule 4(m) motion; and (4) denied the Outlaws' Rule 56(d) motion.

The Outlaws filed this timely appeal.^[2]

II. STANDARD OF REVIEW

We review an order granting summary judgment de novo, viewing all the evidence and drawing all reasonable factual inferences in favor of the nonmoving party. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017). Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). We may not weigh evidence or make credibility determinations, which "are jury functions, not those of a judge." Lewis v. City of Union City, 934 F.3d 1169, 1179 (11^th Cir. 2019) (quoting Feliciano v. City of MiamiBeach, 707 F.3d 1244, 1252 (11th Cir. 2013)). But if the evidence presented by the nonmoving party is "merely colorable" or not "significantly probative," summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). And "Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment." Stardust, 3007 LLC v. City of Brookhaven, 899 F.3d 1164, 1170 (11th Cir. 2018) (quoting Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)).

We review a district court's ruling on a Rule 56(d) motion for abuse of discretion. Burns v. Town of Palm Beach, 999 F.3d 1317, 1330 (11th Cir. 2021)

III. ANALYSIS

We begin our analysis by addressing the district court's denial of the Outlaws' Rule 56(d) motion before turning to the district court's grant of summary judgment.

A. The Outlaws' Rule 56(d) Motion

Under Federal Rule of Civil Procedure 56(d), a nonmoving party to a motion for summary judgment may show "by affidavit or declaration" that, for specific identified reasons, it "cannot present facts essential to justify its opposition." If the nonmovant does so, the district court has discretion to delay consideration of the summary judgment motion, deny the motion, allow additional time for discovery, or issue another order it deems appropriate under the circumstances. Id. To invoke the protection of Rule 56(d), the nonmovant must show that "postponement of a ruling on the motion will enable [her], by discovery or...