Cash Energy, Inc. v. Weiner, Etc.

Opinion

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                                [Not for Publication]
                                [Not for Publication]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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                                          9



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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