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Abben v. Voestalpine Texas Holdings LLC

United States District Court, S.D. Texas, Corpus Christi Division

June 11, 2019

ROBERT ABBEN, Plaintiff,



         Defendants voestalpine Texas Holding, LLC and voestalpine Texas LLC own and operate the La Quinta iron processing plant, which is an alleged source of airborne metallic particulates. Plaintiffs are owners of real and/or personal property located in the vicinity of the plant. They filed this action against Defendants because the particulates settle on their property, causing rust and other damage. The claims sound in state law actions for private nuisance, negligence, and trespass. Plaintiffs seek monetary damages, as well as injunctive relief to permanently reduce or eliminate Defendants' particulate emissions. D.E. 1.

         Before the Court is Defendants' “Motion to Dismiss or, Alternatively, Stay Permanent Injunction Claim” (D.E. 11/12), complaining that the claim for injunctive relief is not ripe and that this Court does not have subject matter jurisdiction to consider such relief as it invades the province of the Texas Commission on Environmental Quality (TCEQ). Alternatively, Defendants argue that this Court should stay any consideration of injunctive relief in favor of the TCEQ's permitting process on the grounds of primary jurisdiction. Plaintiffs have responded (D.E. 15) and Defendants have replied (D.E. 17). For the reasons set out below, the Court DENIES the motion.


         Federal Rule of Civil Procedure 12(b)(1) requires dismissal for lack of subject matter jurisdiction if the court lacks statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The burden of proof is on the party asserting jurisdiction-Plaintiffs, here. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom., Cloud v. United States, 536 U.S. 960 (2002).

         In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact that may be in dispute. “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Id. (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). A plaintiff's uncontroverted factual allegations are taken as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).


         A. Nature of Injunctive Relief Sought

         Plaintiffs seek damages for mental anguish, property damage, expenses for mitigating losses, and lost market value of real and personal property, along with exemplary damages. D.E. 1. Plaintiffs' also request permanent injunctive relief, to redress their complaints based on the same liability theories on which they seek damages. Id. Defendants characterize the request for injunctive relief as (1) a separate claim that is (2) designed to interfere with the permitting jurisdiction of the TCEQ. Neither is true.

         Injunctive relief is merely a remedy available, for instance, to address a trespasser's invasion of land, destruction of an owner's use and enjoyment, and repeated or continuing trespass for which legal remedies are inadequate. Beathard Joint Venture v. West Houston Airport Corp., 72 S.W.3d 426, 432 (Tex. App.-Texarkana 2002, no pet.) (injunctive relief for trespass of this kind is appropriate upon showing of imminent harm, irreparable damages, and inadequate remedy at law); City of Arlington v. City of Fort Worth, 873 S.W.2d 765, 769 (Tex. App.-Fort Worth 1994, writ dism'd) (denying relief, but recognizing appropriate bases for granting it). Such relief is also available to redress a nuisance, depending on the balance of the harm from the operation of a facility against the harm to the facility owners and public. 1717 Bissonnet, LLC v. Loughhead, 500 S.W.3d 488, 500 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (denying injunctive relief); Hot Rod Hill Motor Park v. Triolo, 276 S.W.3d 565, 568 (Tex. App.- Waco 2008, no pet.) (affirming injunction preventing operation of a race track).

         According to the Texas Clean Air Act, as enforced under the provisions of the Texas Water Code[1],

The remedies under this chapter are cumulative of all other remedies. Nothing in this chapter affects the right of a private corporation or individual to pursue any available common law remedy to abate a condition of pollution or other nuisance, to recover damages to enforce a right, or to prevent or seek redress or compensation for the violation of a right or otherwise redress an injury.

Tex. Water Code § 7.004. Also, “[t]his chapter does not exempt a person from complying with or being subject to other law.” Id. at 7.005.

         The injunctive relief requested is further consistent with the provisions of Defendants' TCEQ permit, according to the allegations, taken as true. The permit allows for controls in addition to those acknowledged in granting the permit and specifically directs Defendants to not create a nuisance. D.E. 1, p. 21. Plaintiffs seek measures to reduce Defendants' emissions of particulates, consistent with the TCEQ's purpose and to ...

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