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Funderburk v. South Carolina Electric & Gas Co.

United States District Court, D. South Carolina, Columbia Division

July 26, 2019

Sharon Funderburk and Thomas Funderburk, Plaintiffs,
v.
South Carolina Electric & Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. John P. Cantwell, Plaintiff,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Robert Sherr and Kristi Sherr, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Harry Crosby, Plaintiff,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Leonard Anderson and Karen Anderson, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Carol Bausinger and Scott Bausinger, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Richard Miranda and Dorothy Miranda, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Calvin Nesbit and Jane Nesbit, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Harry A. Plexico, Jr. and Margaret S. Plexico, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Faron Warwick and Dana Warwick, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Jeanne West, Plaintiff,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Warren Boyeson and Christine M. Boyeson, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Karl Hagenmeyer and Willette Hagenmeyer, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Demario Benjamin and Kerochedia Amaker, Plaintiffs,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Richard Green, Plaintiff,
v.
South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

          ORDER AND OPINION

         Plaintiffs filed these actions, currently consolidated for pretrial purposes, seeking monetary compensation from Defendants South Carolina Electric and Gas Company (“SCE&G”), The County of Lexington, SC (“Lexington County”), and CSX Transportation, Inc. (“CSX”) for the damage caused to their homes by flood water released from Lake Murray Reservoir in October 2015.

         This matter is before the court by way of CSX's Motions for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (3:15-cv-04660-JMC, ECF No. 165; 3:15-cv-04694-JMC, ECF No. 149; 3:15-cv-04695-JMC, ECF No. 148; 3:15-cv-04877-JMC, ECF No. 148; 3:15-cv-04887-JMC, ECF No. 149; 3:15-cv-04888-JMC, ECF No. 147; 3:15-cv-04892-JMC, ECF No. 148; 3:15-cv-04893-JMC, ECF No. 147; 3:15-cv-04894-JMC, ECF No. 147; 3:15-cv-04897-JMC, ECF No. 148; 3:15-cv-04898-JMC, ECF No. 148; 3:15-cv-04920-JMC, ECF No. 150; 3:15-cv-04922-JMC, ECF No. 149; 3:16-cv-01141-JMC, ECF No. 143; 3:16-cv-01143-JMC, ECF No. 143.[1]) Plaintiffs oppose the Motions for Summary Judgment “on the grounds that there are genuine disputes of material fact.” (3:15-cv-04660-JMC, ECF No. 190 at 1.) For the reasons set forth below, the court GRANTS CSX's Motions for Summary Judgment.

         I. RELEVANT BACKGROUND OF PENDING MOTIONS

         Plaintiffs own homes in the Coldstream neighborhood located “on the edge of Lexington County[, South Carolina], between Old Bush River Road, Coldstream Drive, and Nursery Road.” Coldstream Neighborhood, https://coldstreamhoa.org (last visited July 18, 2019). “SCE&G is a regulated public utility engaged in the generation, transmission, distribution and sale of electricity to . . . customers in South Carolina.” SCE&G, https://www.sceg.com/about-us/newsroom/2018 /05/09/sce-g-replaces-more-than-40-percent-of-its-nuclear-project-capacity-with-purchase-of natural-gas-fired-power-plant (last visited July 1, 2019). “CSX[] is one of the largest rail transportation companies in the United States, ” providing “common carrier rail transportation services across a rail network consisting of approximately 21, 000 railroad route miles.” (ECF No. 165-1 at 9 ¶ 3.) And, Lexington County is a county located in South Carolina that is comprised of “a total area of 758 square miles (1, 960 km), of which 699 square miles (1, 810 km) is land and 59 square miles (150 km2) (7.8%) is water.” Lexington County, https://en.wikipedia.org/wiki /Lexington County, SouthCarolina (last visited July 18, 2019) (citing 2010 Census Gazetteer Files, https://www2.census.gov/geo/docs/maps-data/data/gazetteer/countieslist45.txt (last visited July 26, 2019). “The largest body of water [in Lexington County] is Lake Murray, while other waterways include Broad River, Saluda River and Congaree River.” Id.

         SCE&G operates the federally licensed Saluda Hydroelectric Project P-516 (“Saluda Hydro Project” or “Project”) “located on the Saluda River in Richland, Lexington, Saluda, and Newberry Counties of South Carolina, approximately 10 miles west of the city of Columbia, and near the towns of Irmo, Lexington, and Chapin.”[2] E.g., Long v. SCE&G, C/A No. 3:15-cv-04890-JMC, ECF No. 115-2 at 13 (D.S.C. June 3, 2019). “The 2, 420 square mile watershed area, drained by the Saluda River and its tributaries above Saluda Dam, provides water for Lake Murray and the Saluda Hydroelectric Plant.” (Id.) “The Saluda Hydroelectric Project structures consist of a 7, 800 foot long earth fill embankment dam (Saluda Dam [or Saluda River Dam, officially the Dreher Shoals Dam, commonly referred to as the Lake Murray Dam]), a backup dam, an emergency spillway with six Tainter gates, a powerhouse, five concrete intake towers and associated penstocks.” (Id. at 13 ¶ 1.0.) “Lake Murray covers a normal maximum operating water surface area of 75 square miles or approximately 48, 000 acres.” (Id. at 17 ¶ 2.1.) “The normal maximum operating water surface elevation is 356.5' during the summer months, although the current license permits a maximum operating level (full pool) of El. 358.5'.” (Id.)

         SCE&G operates the Saluda Dam “primarily for hydroelectric power production as its Saluda Hydro facility, but outflow and storage can also be controlled by way of [the] six [T]ainter gates during flood events.” (3:15-cv-04660-JMC, ECF No. 190-2 at 5.) “When inflow during major floods requires temporary storage above maximum operating pool level, releases are made through spillway gates to augment discharges through power turbines in order to lower the reservoir to required maximum pool level as soon as possible.” (3:15-cv-04660-JMC, ECF No. 190-2 at 5.) “During this operation, spillway gates are opened gradually until the lake level begins to recede.” (Id.) “As long as the reservoir level continues to rise[, ] gate openings will be increased until all six spillway gates are wide open.” (Id.)

         “From October 1st through 5th, 2015, a combination of coincident atmospheric conditions, in combination with a plume of tropical moisture associated with Hurricane Joaquin, resulted in record rainfall over portions of South Carolina.” (3:15-cv-04660-JMC, ECF No. 190-2 at 4.) Plaintiffs, as residents of Coldstream neighborhood along Rawls Creek, [3] experienced flooding beginning at around 5 or 6 a.m. on October 4, 2015. (Id. at 6.) The flooding completely destroyed Plaintiffs' homes and their personal property. (E.g., 3:15-cv-04660-JMC, ECF No. 132 at 4 ¶ 25.)

         Because they believed damage to their real and personal property occurred as a result of SCE&G's failure to properly manage water levels at the Lake Murray Dam, Plaintiffs filed Complaints in the Lexington County Court of Common Pleas on November 10 and 12, 2015, alleging claims against SCE&G for negligence, trespass, strict liability, and inverse condemnation pursuant to South Carolina's eminent domain laws. (3:15-cv-04660-JMC, ECF No. 1-1.) On December 10 and 11, 2015, SCE&G filed Notices of Removal, removing Plaintiffs' actions to this court pursuant to 28 U.S.C. §§ 1331, 1367, 1441 & 1446, and provisions of the Federal Power Act, 16 U.S.C. §§ 791-828c.[4] (ECF No. 1.)

         After the parties litigated the court's jurisdiction over the matter and conducted discovery, Plaintiffs filed Amended Complaints on October 4, 2017, and Second Amended Complaints on January 16, 2019, asserting individual claims of negligence, Fifth Amendment inverse condemnation, trespass, strict liability, and nuisance against SCE&G, CSX, and Lexington County for their perceived roles in the destruction of Plaintiffs' homes.[5] (3:15-cv-04660-JMC, ECF Nos. 64, 132.) Then, on May 30, 2019, the parties stipulated and/or consented “to the dismissal with prejudice of all claims” against SCE&G pursuant to Rule 41 of the Federal Rules of Civil Procedure. (3:15-cv-04660-JMC, ECF No. 159 at 1.) Thereafter, on June 3, 2019, CSX filed the instant Motions for Summary Judgment, wherein they argue that “there are no genuine issues of material fact and CSX[] is entitled to judgment as a matter of law.” (3:15-cv-04660-JMC, ECF No. 165 at 6.) Plaintiffs filed Memorandums in Opposition to CSX's Motions for Summary Judgment on June 12, 2019, to which CSX filed Replies in Support of the Motions for Summary Judgment on June 16, 2019. (3:15-cv-04660-JMC, ECF Nos. 190, 195.)

         The court heard argument from the parties on CSX's Motions at a hearing on June 17, 2019. (3:15-cv-04660-JMC, ECF No. 198.) The court considers the merits of CSX's Motions for Summary Judgment below.

         II. JURISDICTION

         The court has original jurisdiction over this matter under 28 U.S.C. § 1331 pursuant to Plaintiffs' claims for inverse condemnation against CSX under the Takings Clause of the Fifth Amendment to the United States Constitution. (See 3:15-cv-04660-JMC, ECF No. 132 at 9 ¶ 61 (“The unlawful seizure of Plaintiffs' property by Defendant CSX violates the Fifth Amendment of the United States Constitution.”).) The court may properly hear Plaintiffs' state law claims for negligence, trespass, strict liability, and nuisance against CSX based on supplemental jurisdiction since these claims “are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy . . . .”[6] 28 U.S.C. § 1367(a); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (finding supplemental jurisdiction allows parties to append state law claims over which federal courts would otherwise lack jurisdiction to federal claims, so long as “[t]he state and federal claims . . . derive from a common nucleus of operative fact”); De La Rosa v. Reliable, Inc., 113 F.Supp.3d 1135, (D.N.M. 2015) (“The court can then exercise supplemental jurisdiction over other claims and parties that ‘form part of the same case or controversy under Article III . . . .'”) (citing § 1367 & United Mine Workers, 383 U.S. at 725).

         III. LEGAL STANDARD

         Summary judgment should be granted “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). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A genuine question of material fact exists where, after reviewing the record as a whole, the court finds that a reasonable jury could return a verdict for the non-moving party. Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).

         In ruling on a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123- 24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with mere allegations or denials of the movant's pleading, but instead must “set forth specific facts” demonstrating a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 252; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

         IV. ANALYSIS

         In light of the foregoing authorities, the court considers each of Plaintiffs' claims relevant to CSX's Motion for Summary Judgment in turn below.

         A. The Parties' Arguments Regarding Preemption of Plaintiffs' Claims

         CSX argues that it is entitled to summary judgment because “Plaintiffs' South Carolina tort law . . . claims impermissibly seek to regulate CSX[]'s railroad operations and thus are expressly preempted by Section 10501(b) of [the Interstate Commerce Commission Termination Act (“ICCTA”) of 1995, 49 U.S.C. § 10101-16106].” (3:15-cv-04660-JMC, ECF No. 165 at 13.) In support of this argument, CSX asserts that the ICCTA both created the Surface Transportation Board (“STB”) and granted the STB exclusive jurisdiction over the following:

(1) transportation by rail carriers, and the remedies provided in this part [49 USCS §§ 10101 et seq.] with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of . . . facilities, even if the tracks are located, or intended to be ...

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