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Baker v. Big Ox Energy, LLC

United States District Court, D. Nebraska

August 26, 2019

CAROL BAKER, individually, and as Personal Representative of the Estate of Robert Baker Sr., Deceased; Plaintiffs,
v.
BIG OX ENERGY, LLC, and BIG OX ENERGY-SIOUXLAND, LLC, Defendants.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge

         Defendants 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 granted.

         THE PLEADINGS

         Plaintiffs' 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).

         Big Ox's proposed third party claim against Olsson[1] 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.

         Big Ox 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.

         ANALYSIS

         Plaintiffs 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.

         A. Third Party Action against Olsson.

         Big Ox 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).

         The 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 futile, arguing:

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 firm.

(Filing No. 32, at CM/ECF pp. 4-5). In other words, Plaintiffs claim Olsson owed no duty to Big Ox because there was ...


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