United States District Court, D. Nebraska
CAROL BAKER, individually, and as Personal Representative of the Estate of Robert Baker Sr., Deceased; Plaintiffs,
BIG OX ENERGY, LLC, and BIG OX ENERGY-SIOUXLAND, LLC, Defendants.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
Big Ox Energy LLC (“BOE”) and Big Ox Energy
Siouxland LLC (collectively “Big Ox”), have moved
pursuant to Fed.R.Civ.P. 14(a)(1) for leave to file an
Amended Answer, Affirmative Defenses, and Third Party Claims.
Big Ox argues that if Plaintiff's claims are ultimately
successful, Olsson and CHS, Inc. would be responsible for all
or part of Plaintiff's damages. For the reasons explained
below, Defendants' motion, (Filing No. 31), will be
complaint alleges negligence, private nuisance and strict
tort liability claims against Big Ox. Plaintiffs claim that
in October of 2016, they were removed from their residence by
personnel from South Sioux City, Nebraska because sewage and
sewer gas had infiltrated their home. The plaintiffs did not
return to their residence, claiming it was rendered
uninhabitable. They claim Big Ox is responsible for the
sewage and sewer gas infiltration because it released
effluent from Big Ox's facility in South Sioux City (the
“Facility”) into that city's sewer system,
causing pressure within the system and the infiltration of
gases and sewage into some South Sioux City residences,
including the plaintiffs' residence. (Filing No. 10-1).
Ox's proposed third party claim against
Olsson alleges that the Facility is operated by
BOE on property leased by BOS. The Facility is a
state-of-the-art biodigester facility which receives
wastewater from area industries and a residential area. BOE
processes the waste to generate a renewable biogas that is
injected into a local natural gas pipeline. When the Facility
was being constructed, Olsson determined how effluent from
the Facility should be handled by the South Sioux City sewer
system, and Olsson recommended that Facility wastewater be
routed through a South Sioux City municipal sewer main which
ran through residential areas. Thereafter, South Sioux City
decided to route the effluent from the Facility through a
particular sewer main.
alleges that if it is liable for Plaintiffs' alleged
damages, Olsson is liable to Big Ox, in whole or in part,
because Olsson determined and specified that wastewater from
the Facility should be routed through a City sewer main
connected to residences, including Plaintiffs' home.
argue that Big Ox should not be permitted to file its
proposed Amended Answer, Affirmative Defenses, and Third
Party Claims because the third party complaint fails to state
a claim, and because the affirmative defenses are not proper
or sufficiently pleaded.
Third Party Action against Olsson.
argues its third party action against Olsson should be
permitted because “[i]t was Olsson that determined and
specified that wastewater from the Big Ox facility be routed
through a municipal sewer main connected to residences,
including Plaintiff's home, ” and “it was CHS
. . . that caused the formation of certain gases as part of
the Big Ox process.” So, “if Big Ox is found
liable for Plaintiff's claims, it is Olsson and CHS that
created the conditions for such liability.” (Filing No.
31, at CM/ECF pp. 2-3). Big Ox's proposed third party
action alleges that if Big Ox is required to pay the
plaintiffs, it is entitled to contribution and/or
indemnification from Olsson and CHS. (Filing No. 31-1, at
CM/ECF p. 11).
plaintiffs oppose Big Ox's motion, arguing third party
proceedings against Olsson are improper. Plaintiff asserts
the Defendant's third party claims against Olsson are
There is no allegation that Olsson owed a duty to Plaintiff
or to BOE, and no allegation that Olsson undertook any design
work for Plaintiff or BOE. As framed, the pleading would
propose professional liability claims against Olsson as
design engineers. But, there is no allegation that Olsson
designed for Mrs. Baker, the Plaintiff, or for the City of
South Sioux City. In short, there is nothing to indicate the
proposed Complaint could result in liability against Olsson.
There is no allegation in the proposed pleading alleging an
engineer-client relationship between Olsson and Plaintiff, or
between Olsson and BOE, or between Olsson and CHS. Absent
allegations of duty there is no plausible claim stated in the
proposed third party proceedings against the engineering
(Filing No. 32, at CM/ECF pp. 4-5). In other words,
Plaintiffs claim Olsson owed no duty to Big Ox because there