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[Not for Publication]
[Not for Publication]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
-2-
2
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.
-3-
3
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.
-4-
4
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
-5-
5
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).
-6-
6
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.
-7-
7
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.
-8-
8
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.
-9-
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.
________
-10-
10
