Cash Energy, Inc. v. Weiner, Etc. ( 1996 )


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  • USCA1 Opinion








    March 29, 1996
    [Not for Publication] [Not for Publication]
    United States Court of Appeals United States Court of Appeals
    For the First Circuit For the First Circuit
    ____________________

    No. 95-1800

    CASH ENERGY, INC., ET AL.,

    Plaintiffs - Appellants,

    v.

    MELVIN L. WEINER, ETC., ET AL.,

    Defendants - Appellees.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Robert E. Keeton, U.S. District Judge] ___________________

    ____________________

    Before

    Boudin, Circuit Judge, _____________
    Bownes, Senior Circuit Judge, ____________________
    and Stahl, Circuit Judge. _____________

    ____________________

    Neal Marshall Brown with whom Amy S. Locke was on brief for ____________________ _____________
    appellant.
    Robert S. Sanoff with whom Nicholas C. Theodorou, Sara E. Wylie, ________________ ______________________ ______________
    and Foley, Hoag & Eliot were on brief for appellees. ___________________


    ____________________


    ____________________





















    Per Curiam. Plaintiff-appellant Mark O. Henry Per Curiam. ___________

    brought an action seeking damages from an adjacent property

    owner for groundwater contamination to Henry's commercial

    property. Henry appeals from the district court's grant of

    summary judgment for the defendants. We affirm.

    I. I. __

    BACKGROUND BACKGROUND __________

    We first summarize the relevant facts as they

    appear on the summary judgment record, viewing them in the

    light most favorable to the non-movant Henry. See Woods v. ___ _____

    Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994). ________________________

    In this case, however, the summary judgment record is

    particularly unhelpful to Henry because the district court

    ruled that he failed to comply with the local rule requiring

    the party opposing summary judgment to provide a concise

    statement of the material facts as to which there is a

    genuine issue to be tried. See D. Mass. L. R. 56.1. As a ___

    consequence of that non-compliance, the court deemed the

    moving defendants' statement of undisputed facts to be

    admitted by Henry, as the local rule provides. See id. ___ ___

    On appeal, Henry states in his brief that he did

    comply with the local rule, and he points out that his

    memorandum opposing summary judgment included a lengthy

    factual statement with record citations. Henry does not

    explain, however, how his factual statement complies with the



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    requirement of a concise statement of the material facts as _______ ________

    to which there is a genuine issue. See id. Henry's factual _____________ ___ ___

    statement was a general and complete background statement,

    spanning seven pages, providing relevant facts whether or not

    they were disputed or material to the outcome. We see no

    error in the district court's application of the local rule,

    therefore we, like the district court, treat the facts as set

    forth in the defendant's statement as admitted by Henry.

    In 1986, Henry purchased several business

    condominium units in Andover, Massachusetts.1 In 1989, for

    purposes of refinancing the property, Henry hired an

    environmental consultant to inspect the property for

    contamination. The inspection revealed high levels of

    volatile organic compounds ("VOCs") in the groundwater.

    Prior to Henry's purchase of the property, a

    laundry and dry cleaning facility had operated on the site

    from about 1960 until 1981, utilizing a VOC,

    perchloroethylene ("PCE"), as a dry cleaning solvent. Upon

    deposition, the former owner of the laundry conceded that PCE

    ____________________

    1. In 1981, Cash Energy, Inc., a corporation owned by Henry,
    purchased the property and in 1986 converted it into business
    condominium units, transferring several units to Henry
    personally and to others. Cash Energy, Inc., and all the
    other plaintiffs (except Henry individually) were defaulted
    from this action in November 1991. The record is not
    completely clear as to what actions were taken by Henry
    personally, as opposed to his corporation or others, but that
    is irrelevant to the disposition of this appeal. For
    simplicity, we will recite the facts as if Henry was the
    actor unless more specificity is required.

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    sometimes spilled on the ground during the monthly refilling

    of the PCE storage tank.

    Adjacent to Henry's property, the defendants2 own

    a commercial property on which a solvent reclamation business

    has operated since 1969, handling industrial solvents

    containing VOCs. That property, too, was contaminated with

    VOCs, necessitating an ongoing environmental remediation. It

    is likely that solvents from the defendants' property entered

    the groundwater on Henry's property, accounting for some of

    the VOCs detected in the groundwater.

    Henry filed the instant lawsuit in 1990, bringing a

    myriad of claims under the Comprehensive Environmental

    Response, Compensation, and Liability Act ("CERCLA"), 42

    U.S.C. 9601-9675, the Massachusetts Oil and Hazardous

    Material Release Prevention and Response Act, Mass. Gen. L.

    ch. 21E, and Massachusetts common law (nuisance, trespass,

    negligence, etc.). The litigation did not proceed

    smoothly. A description of Henry's missteps, missed

    deadlines, and failures to comply with scheduling orders


    ____________________

    2. The district court, in the order that Henry appeals,
    granted summary judgement to the following defendants: Melvin
    L. Weiner (as Trustee of Weiner Real Estate Trust); Service
    Chemical Corp.; North East Solvents Services, Inc.; and
    Laidlaw Environmental Services, Inc. (formerly North East
    Solvents Reclamation Corp.). The roles of the various
    defendants are not germane to the disposition of this appeal,
    and we shall refer to them simply as "the defendants." A
    number of other defendants were dismissed from the case
    earlier, and are not parties to this appeal.

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    would fill several pages; suffice it to say that the record

    suggests a pattern of flagrant non-compliance with deadlines,

    orders, and rules. On January 31, 1995, as a sanction for

    Henry's repeated discovery violations, the district court

    granted the defendants' motion to preclude Henry from

    presenting expert testimony on damages. Henry has not

    appealed that order.

    The defendants moved for summary judgment in March

    1995, arguing, in essence, that without expert testimony,

    Henry would be unable to prove damages, a necessary element

    of his prima facie case under all his claims. The district _____ _____

    court granted summary judgment in favor of the defendants,

    finding that, in light of the preclusion order, the

    affidavits with which Henry had opposed summary judgment

    contained no admissible evidence from which a jury could

    reasonably measure damages.

    II. II. ___

    ANALYSIS ANALYSIS ________

    On appeal, Henry argues that he can prove damages

    without expert testimony, and that therefore summary judgment

    was improper. Henry does not argue that he could survive

    summary judgment without some proof of damages, apparently









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    conceding that under all of his causes of action, he bears

    the burden of proving that he suffered recoverable damages.3

    We review a grant of summary judgment de novo, in __ ____

    accordance with our usual standard. See Friction Materials, ___ __________________

    30 F.3d at 259. Federal Rule of Civil Procedure 56(c)

    "mandates the entry of summary judgment, . . . upon motion,

    against a party who fails to establish the existence of an

    element essential to that party's case, and on which that

    party will bear the burden of proof at trial." Celotex Corp. _____________

    v. Catrett, 477 U.S. 317, 322 (1986). _______

    Misguidedly, Henry uses much of his brief to

    describe the evidence that he would be able to present at

    trial. In reviewing summary judgment, however, the issue is

    not what Henry might be able to prove at trial, but rather

    what Henry has put into the summary judgment record in

    compliance with Fed. R. Civ. P. 56 and D. Mass. L. R. 56.1.

    Under Rule 56(e), "the adverse party [i.e., the party

    opposing summary judgment] may not rest upon the mere

    allegations or denials of the adverse party's pleading, but

    ____________________

    3. We note that Henry has not addressed whether his
    declaratory judgment count should have survived summary
    judgment even without proof of damages. It appears, however,
    that the declaratory judgment that Henry sought pertained to
    the defendant's liability for damages under CERCLA, so that
    proof of damages may have been critical here as well. In any
    event, Henry has waived the issue. See United States v. ___ ______________
    Zannino, 895 F.2d 1, 17 (1st Cir.) ("[I]ssues adverted to in _______
    a perfunctory manner, unaccompanied by some effort at
    developed argumentation, are deemed waived."), cert. denied, _____ ______
    494 U.S. 1082 (1990).

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    the adverse party's response, by affidavits or as otherwise

    provided in this rule,4 must set forth specific facts

    showing there is a genuine issue for trial." Fed. R. Civ. P.

    56(e).

    Henry has asserted three applicable theories for

    the measurement of his damages, but, without expert

    testimony, he has failed to demonstrate a trialworthy issue

    of fact on any. Each of Henry's theories -- diminution of

    his property's market value, estimated remediation costs, and

    recovery of response costs paid -- require a determination as

    to the extent of the harm, if any, caused by the defendants.

    Given the facts on the summary judgment record here, that

    requirement calls for the segregation of damage caused by the

    defendants from damage generated by the former on-site dry

    cleaning operation.5 It is axiomatic that the defendants

    are not liable for damages they did not cause.

    The district court held the burden was on Henry to

    isolate the harm caused by the defendants. On appeal Henry


    ____________________

    4. In addition to affidavits, Rule 56 allows a party to
    support or oppose summary judgment with pleadings,
    depositions, answers to interrogatories, and admissions on
    file. Fed. R. Civ. P. 56(c). Henry, in opposing summary
    judgment, cited only to two affidavits, which we discuss
    infra. _____

    5. The district court held that the diminution in market
    value theory also calls for segregation of the general,
    market-wide devaluation of commercial properties in the area
    from the effect on value of the contamination, but we do not
    rely on this in reaching our decision.

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    does no more than assert that he was not required to isolate

    the harm, without citing statutes or case law. It is the

    duty of the appellant to show that error has been committed,

    and Henry has not done so.

    Although the allocation of damages caused by two

    distinct sources of groundwater pollution would seem to

    require expert testimony, we need not decide that issue

    because Henry has failed to put into the summary judgment

    record any admissible evidence that would allow a jury to

    allocate the damages. Henry supported his opposition to

    summary judgment with his own affidavit and the affidavit of

    Stephen L. Kurz, an environmental consultant.6 Only one

    statement in these affidavits addresses the issue of

    segregating the contamination that emanated from the

    defendants' adjacent property from contamination caused by

    the on-site dry cleaning establishment. Henry avers in his

    own affidavit that another consultant, ENPRO Services, Inc.,

    "concluded that the source of the solvent contamination was

    the [defendants'] property and that [Henry's] property was

    not a source of the contamination." While that conclusion

    seems improbable, credibility is not at issue on summary

    judgment. But Henry's statement about ENPRO's conclusions is



    ____________________

    6. Henry also made a single citation to a deposition
    submitted with the defendants' motion for summary judgment,
    as to a fact not relevant to the allocation of damages issue.

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    inadmissible hearsay, and cannot be considered on summary

    judgment.7 See Garside v. Osco Drug, Inc., 895 F.2d 46, 50 ___ _______ _______________

    (1st Cir. 1990). Moreover, Henry's statement, without more,

    is too conclusory to satisfy the Rule 56(e) requirement that

    the non-movant "set forth specific facts showing that there

    is a genuine issue for trial." See Crawford v. LaMantia, 34 ___ ________ ________

    F.3d 28, 31 (1st Cir. 1994) ("conclusory allegations,

    improbable inferences, and unsupported speculation"

    insufficient to block summary judgment), cert. denied, 115 S. _____ ______

    Ct. 1393 (1995).

    Environmental consultant Kurz, in the other

    affidavit submitted by Henry, opines that the remedial

    measures being implemented on defendants' site are inadequate

    to deal with the groundwater contamination, and estimates the

    cost of a remediation plan that properly addresses both

    Henry's and the defendants' properties. But Kurz does not

    address in any way the issue of isolating the harm caused by

    the defendants' activities from that caused by Henry's

    predecessor, the dry cleaner. In any event, if the Kurz

    Affidavit had addressed the segregation of off-site damages,




    ____________________

    7. The Enpro consulting report is itself in the record
    below, but that does not help Henry. First, the report
    itself is inadmissible hearsay. Second, as to the separation
    of harms issue, the Enpro report constitutes an expert
    opinion on damages, inadmissible under the district court's
    preclusion order.

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    it would violate the court's order precluding expert

    testimony on damages.

    We hold, therefore, that absent a showing that the

    district court misconstrued the law, Henry failed to meet his

    burden on summary judgment to set forth specific facts, which

    if believed, would allow a jury to measure the damages caused

    by the defendants. See Anderson v. Liberty Lobby, 477 U.S. ___ ________ _____________

    242, 249 (1986). Henry's failure to isolate the off-site

    harm from that caused by the dry cleaning operation that

    operated on site is fatal to all three damages measures:

    diminution of property value, remediation costs, and response

    costs. Accordingly, the district court's order granting

    summary judgment is affirmed. Costs to the appellees. ________



























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