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Sims v. Cliffs Resources, Inc.

United States District Court, N.D. Alabama, Southern Division

September 18, 2017

LESLIE ALLISON SIMS, et al., Plaintiffs,
CLIFFS RESOURCES, INC., et al., Defendants.




         The 14 plaintiffs own homes and real property in Bessemer, Alabama. Between late 2013 and sometime in 2014, Oak Grove Mine conducted longwall mining, a form of underground coal mining, near Plaintiffs' homes. That mining caused subsidence, defined as "[t]he gradual caving in or sinking of an area of land, " Subsidence, Oxford Living Dictionary, (last visited September 6, 2017). Not surprisingly, the subsidence damaged Plaintiffs' homes and real property.

         Plaintiffs sued a number of entities associated with the mine, but the only remaining defendants are Oak Grove Resources, LLC, and Cliffs Resources, Inc. Oak Grove owned and operated (and continues to own and operate) Oak Grove Mine under a permit issued by the Alabama Surface Mining Commission. At the time of the mining that damaged Plaintiffs' homes, Cliffs owned Oak Grove. Plaintiffs assert that Oak Grove is liable for negligence/strict liability; wanton, intentional, and willful conduct; nuisance; trespass; and fraud, deceit, and suppression of material fact. Plaintiffs claim that Cliffs, as the former owner of Oak Grove, is liable for wanton, intentional, and willful conduct.

         In an earlier order, this court described the statutory and regulatory framework governing claims arising from mining-related subsidence damage to residential structures. See (Doc. 57). The Alabama Surface Mining Control and Reclamation Act of 1981 ("ASMCRA"), Alabama Code § 9-16-70 et seq., provides the remedy to property owners for subsidence damage caused by underground mining.

         Subsection 9-16-91(e) requires underground coal mining operations to "[p]romptly repair or compensate for material damage to any occupied residential dwelling and related structures . . . resulting from underground coal mining operations." Id. § 9-16-91(e)(1). And Alabama's mining regulations provide that the mining permittee is responsible for providing that repair or compensation. See Ala. Admin. Code § 880-X-10D-.58(3)(b) ("The permittee must promptly repair, or compensate the owner for, material damage resulting from subsidence caused to any non-commercial building or occupied residential dwelling or structure related thereto that existed at the time of mining."); see also (Doc. 57 at 6-7). In addition, ASMCRA provides that repair or compensation are "the sole and exclusive remedies" for subsidence damage unless "the trier of fact finds[ ] intentional, willful, or wanton conduct." Ala. Admin. Code § 9-19-71(f). Conduct in "substantial compliance with applicable mining permits may not be deemed to be intentional, willful, or wanton." Id.

         In sum, based on that statutory and regulatory framework, Plaintiffs may recover only the costs to repair material damage or to compensate them for material damage, and only from the mining permittee (in this case, Oak Grove), unless they can prove that the Oak Grove and/or Cliffs engaged in intentional, willful, or wanton conduct.

         The parties filed cross-motions for partial summary judgment. Defendant Oak Grove concedes that, as the mining permittee, it is obligated under Alabama law to repair material damage to Plaintiffs' homes or compensate them for material damage. But it disputes Plaintiffs' valuation of the damage to their homes. By contrast, Cliffs contends that it is not the mine permittee, so Plaintiffs cannot recover from it because they have not presented any evidence creating a genuine issue of material fact that it engaged in intentional, willful, or wanton conduct. Likewise, Oak Grove contends that Plaintiffs presented no evidence introducing a genuine dispute of material fact that it engaged in intentional, willful, or wanton conduct.

         Plaintiffs, in turn, contend that they are entitled to summary judgment because no genuine dispute of material fact exists about the value of the subsidence damage to their houses or about whether Defendants committed intentional and willful acts that were not in substantial compliance with their mining permits.

         The summary judgment motions have been fully briefed. (Docs. 68, 72, 74, 75, 77, 80). For the reasons stated in this Memorandum Opinion, the court WILL GRANT Defendants' "Motion for Summary Judgment" and WILL DENY Plaintiffs' "Motion for Partial Summary Judgment." The court finds that no evidence supports a finding that Oak Grove did not substantially comply with its mining permit; that no evidence supports a finding that Cliffs directed Oak Grove's mining activities; and that the sole issue on which a genuine dispute of material fact exists is the amount of damages Plaintiffs should recover from Defendant Oak Grove under § 9-16-91(e) of ASMCRA. The partes also filed motions to strike certain evidentiary submissions and responses to those motions. (Docs. 73, 76, 78, 79, 81, 82). The court WILL GRANT IN PART AND DENY IN PART Plaintiffs' motion to strike part of G. Milton McCarthy, Jr.'s affidavit, WILL DENY Defendants' motion to strike parts of Plaintiffs' affidavits, and WILL DENY Plaintiffs' motion to strike references to the Jefferson County Tax Assessor's valuations of their homes.


         Before setting forth the factual record, the court considers the parties' motions to strike certain evidentiary submissions.

         A. Plaintiffs' Motion to Strike Parts of G. Milton McCarthy, Jr.'s Affidavit

         Plaintiffs move to strike parts of Deputy Attorney General G. Milton McCarthy, Jr.'s affidavit. Those parts involve Mr. McCarthy's discussion of the Oak Grove Mine; his testimony about Alabama Surface Mining Commission ("ASMC") requirements and procedures; and his opinion that Oak Grove substantially complied with its ASMC permit terms, which would preclude a finding of intentional, willful, or wanton conduct under ALA. CODE § 9-16-91(f). Plaintiffs move to strike on the grounds that (1) these portions of the affidavit constitute expert testimony and Defendants failed to designate Mr. McCarthy as an expert witness; (2) Mr. McCarthy's opinion testimony violates the Alabama Attorney General's policy against offering opinions on behalf of private litigants; (3) the mid-term permit review on which Mr. McCarthy partially relies for his opinion that Defendants were in substantial compliance with their mining permit does not support his opinion; and (4) Mr. McCarthy's opinion testimony otherwise lacks factual support.

         Defendants put Mr. McCarthy forward as a lay witness. His affidavit must, therefore, comply with the requirements under Federal Rule of Evidence 701 for lay witnesses offering opinion testimony. Mr. McCarthy's testimony is limited to those opinions that are "rationally based on [his] perception, " "helpful to clearly understanding [his] testimony or to determining a fact in issue, " and "not based on scientific, technical, or other specialized knowledge within the scope of [Federal] Rule [of Evidence] 702." FED. R. EVID. 701. And "[t]he evidence presented cannot consist of conclusory allegations or legal conclusions." Avirgan v. Hull, 932 F.2d 1572, 1577(11th Cir. 1991).

         Mr. McCarthy heads the Legal Division of the ASMC and in this capacity is "responsible for representing the ASMC in both federal and state courts as well as managing the legal and enforcement section of the ASMC." (Doc. 68-16 at 3 ¶ 2). His affidavit concerns the matters regulated by that commission. Thus, the portions of his affidavit that are based entirely on Mr. McCarthy's personal knowledge and consist of factual statements or discuss the requirements of the statutory and regulatory framework governing subsidence mining in Alabama, or the ASMC's interpretation and administration thereof, are admissible. See FED. R. EVID. 701; Langenbau v. Med-trans Corp., 167 F.Supp.3d 983, 1006 (N.D. Iowa 2016) (noting that restraints on expert testimony do not prohibit lay witnesses from discussing "the contents of regulations applicable to a regulated industry in which they work . . . if they have sufficient personal knowledge of the existence and contents of those regulations"); Siebert v. Gene Sec. Network, Inc., 75 F.Supp.3d 1108, 1115 (N.D. Cal. 2014) (ruling that employee of federal agency could testify as a lay witness as to grant procedures of the agency and specific grant applications in evidence, but could not offer legal conclusions).

         But witnesses may not offer legal conclusions. See, e.g., Arvignan, 932 F.3d at 1577. Mr. McCarthy's affidavit breaks that rule in two places. First, his statement in paragraph 16 that "Oak Grove's longwall mining and subsidence of plaintiffs' properties was 'conducted in substantial compliance' with its ASMC permit pursuant to Ala. Code § 9-16-91(f)" is tantamount to a legal conclusion that Defendants' conduct was not intentional, willful, or wanton, because it mirrors the language in Ala. Admin. Code § 9-19-71(f) setting out the standard for intentional, willful, or wanton conduct. (Doc. 68-16 at 6 ¶ 16); see Cordoves v. Miami-Dade Cty., 104 F.Supp.3d 1350, 1365 (S.D. Fla. 2015) (quoting Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997) ("If testimony 'track[s] the language of the applicable statute' or uses a term that 'has a specialized legal meaning that is more precise than the lay understanding of the term, ' the testimony is an impermissible legal conclusion.")).

         Second, Mr. McCarthy attests that "In compliance with ASMC regulations, Oak Grove's subsidence control plan identified by name and location the known surface owners under which it planned to mine, subside and potentially damage."(Doc. 68-16 at 6 ¶ 12 (emphasis added)). The first clause of that sentence-"In compliance with ASMC regulations"-is also tantamount to an impermissible legal conclusion. The court WILL STRIKE the first clause in paragraph 12 and the entirety of paragraph 16.

         Mr. McCarthy also makes some assertions for which he does not establish he has personal knowledge. The court WILL STRIKE the first three sentences of paragraph 8 and the second sentence of paragraph 10 of Mr. McCarthy's affidavit for that reason. The court WILL STRIKE the second paragraph of paragraph 10 for the alternative reason that Mr. McCarthy has not been qualified as a mining expert competent to testify as to longwall mining's results generally. See FED. R. EVID. 702 (providing that a qualified expert witness may provide an opinion where the testimony is "based on sufficient facts or data" and "the product of reliable principles and methods, " in addition to meeting other requirements).

         Having struck Mr. McCarthy's opinion about Oak Grove's substantial compliance with its permit, the court need not address whether Mr. McCarthy provided factual support for that opinion. And because this court is not tasked with enforcing the laws and policies governing the office of Alabama Attorney General, and Alabama law setting forth the Attorney General's duties does not constitute federal evidentiary law, the court also does not reach the question of whether Mr. McCarthy provided his opinion in violation of any prohibitions on Attorney General opinions on behalf of private litigants.

         The court WILL GRANT Plaintiffs Motion to Strike the second sentence of paragraph 10 and the entirety of paragraph 16 and WILL DENY the Motion to Strike as to paragraphs 3, 7, 8, 14, and 15. The court also WILL STRIKE the first three sentences of paragraph 8 and the first clause of the first sentence in paragraph 12.

         B. Defendants' Motion to Strike Portions of Plaintiffs' Affidavits

         Defendants move to strike four paragraphs that are substantially identical across seven Plaintiffs' affidavits. (Docs. 70-2 through 70-8 at ¶¶ 3, 5, 9-10). Defendants contend that the statements in those paragraphs, which express Plaintiffs' beliefs that their homes are total losses because of the damage incurred from Defendants' mining activities, contradict individual Plaintiffs' previous deposition testimony and are impermissibly speculative.

         Plaintiffs assert in their affidavits:

As the owner of the real property, I testify that my home and its surrounding land would be worth [dollar amount-varies among Plaintiffs] today if it had not been damaged by subsidence. I base this testimony on the amount I originally paid for my home, the number of years we have owned the home, and the prices of other similar houses in the area that were not damaged by subsidence. ... I testify that my home has no value in its current condition because I cannot sell it with such significant subsidence damage to it.

(Docs. 70-2 through 70-8 at ¶¶ 5, 9).

         To the extent that Plaintiffs' affidavits express Plaintiffs' opinions about the values of their homes, the affidavits do not contradict earlier deposition testimony in which Plaintiffs expressed no opinion as to the values of their homes. Facing a similar issue, Judge Steele held: "That [Plaintiff] may have had no idea what her property was worth at the time of her deposition . . . does not necessarily negate the possibility that she undertook to formulate such opinions prior to completing the [later] affidavit." Fisher v. Ciba Specialty Chemicals Corporation, No. 03-0566-WS-B, 2007 WL 2995525, at *4 (S.D. Ala. Oct. 11, 2007).

         Nor do the statements at issue constitute impermissible speculation. Judge Steele persuasively addressed a nearly identical situation in the Fisher case, admitting affidavits in which homeowners opined as to their properties' value "based on decades of residing there." 2007 WL 2995525, at *7. The court held that to exclude the affidavits would reject both Alabama and federal law holding that a landowner may testify as to his own land's value. Id.

         The affiant Plaintiffs here similarly and properly base their valuations on their own knowledge of their properties. Thus, the court WILL DENY Defendants' Motion to Strike.

         C. Plaintiffs' Motion to Strike References to Jefferson County Tax Assessor's Information

         Plaintiffs move to strike Defendants' submission of the Jefferson County Tax Assessor's valuations of Plaintiffs' homes. (Docs. 75-2 and 75-3). Plaintiffs argue that the Tax Assessor's valuations (1) constitute expert testimony not properly disclosed in advance, and (2) are inaccurate.

         The tax records do not constitute testimony by an expert witness and are admissible as certified copies of public records under Federal Rule of Evidence 902(4). See Simek v. J.P. King Auction Co., 160 F.App'x 675, 685-86 (10th Cir. 2005) (holding that property assessment by county tax assessor was admissible under Rule 902(4) and that it did not constitute a "back door" expert opinion: "The fact that such a tax record is relevant for this purpose [of determining the property's value] does not automatically subject the record to Daubert analysis where the record is admissible on other grounds and there is no attempt to characterize the tax record as anything other than what it is.").

         The property tax assessments present one factor relevant to determining the value of Plaintiffs' homes, and the Federal Rules do not otherwise prohibit their admission. See FED. R. EVID. 401(a) (providing that evidence is relevant when "it has any tendency to make a fact more or less probable than it would be without the evidence"); FED. R. EVID. 402 (providing that relevant evidence is admissible unless specified federal law provide otherwise). Plaintiffs' challenge to the accuracy of the tax assessments goes to the weight, rather than the admissibility, of the evidence. The court WILL DENY Plaintiffs' Motion to Strike.[1]


         Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See FED. R. ClV. P. 56(a). When a district court reviews a motion for summary judgment it must determine two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to judgment as a matter of law. Id.

         In reviewing the evidence submitted, the court must view all evidence and factual inferences drawn from it in the light most favorable to the non-moving party. See Augusta Iron & Steel Works, Inc. v. Emp'rs Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988) (citation omitted). However, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (citation omitted).

         The filing of cross motions for summary judgment does not affect the applicable Rule 56 standard. See, e.g., United States v. Oakley, 744 F.2d 1553, at 1555-56 (11th Cir. 1984) (quoting Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)).[2]When parties file cross motions for summary judgment, "each side must still establish the lack of genuine issues of material fact and that it is entitled to judgment as a matter of law." Busby v. JRHBW Realty, Inc., 642 F.Supp.2d 1283, 1288 (N.D. Ala. 2009) (citations omitted). "The fact that both parties simultaneously are arguing that there is no genuine issue of fact. . . does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit." Id. at 1289 (quoting 10A Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720, at 327-28 (3d ed. 1998)).

         The Eleventh Circuit has noted that "[c]ross motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed." Oakley, 744 F.2d at 1555 (quoting Bricklayers, 512 F.2d at 1023). Nevertheless, "cross-motions maybe probative of the non-existence of a factual dispute when . . . they demonstrate a basic agreement concerning ...

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