United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTION IN LIMINE
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.
Court denies the Defendants' motion in limine to exclude
from evidence any testimony or documents concerning the
volume of crude oil delivered to Montreal East from Enbridge
Line 9B, but defers ruling on whether the failure to disclose
was harmless and, if not harmless, whether a remedy short of
exclusion is in order.
February 6, 2015, Portland Pipe Line Corporation (PPLC) and
the American Waterways Operators (AWO) (collectively,
Plaintiffs) filed a nine-count complaint in this Court
against the city of South Portland and its code enforcement
officer (collectively, Defendants). The Complaint challenges
the validity of a municipal ordinance that prohibits the
“bulk loading” of crude oil onto marine vessels
in the harbor of South Portland, Maine. Compl. for
Declaratory and Injunctive Relief (ECF No. 1)
(Compl.). PPLC owns and operates the United States
portion of a pipeline system that stretches from South
Portland, Maine, to Montreal East, Quebec. Id.
¶ 11. PPLC's parent company, Montreal Pipe Line
Limited (MPLL), operates the portion of the pipeline system
that lies within Quebec. Pls.' Statement of Material
Fact ¶ 6 (ECF No. 89) (PSMF). At the time the
Plaintiffs filed the Complaint in February 2015, PPLC and
MPLL transported crude oil northward from South Portland to
Montreal East at a rate of approximately 2.4 million barrels
of oil per month. Compl. ¶ 11. The practical
effect of the Ordinance is to prevent PPLC and MPLL from
reversing the flow of its existing pipeline infrastructure to
transport oil south from Montreal to vessels in the South
March 31, 2015, the Defendants filed a motion to dismiss for
lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1), arguing, among other things,
that the Plaintiffs' claims are unripe and that the
Plaintiffs lack standing. Defs.' Mot. to Dismiss the
Compl. Pursuant to Rule 12(b)(1) (ECF No. 16); Mem.
of Law in Supp. of Defs.' Mot. to Dismiss Pursuant to
Rule 12(b)(1) (ECF No. 17). Specifically, the Defendants
argued that the Plaintiffs have no concrete plan to reverse
the flow of oil and thereby violate the Ordinance, that the
present effect of the Ordinance on the Plaintiffs consists of
a “threadbare claim of economic uncertainty, ”
and that the Plaintiffs' claims rest on a “chain of
contingencies, including whether PPLC ever decides to bulk
load crude oil in the City and whether it initiates a process
for federal, state and local approvals that may conflict with
the Ordinance.” Id. at 11-18.
February 11, 2016, the Court issued an order denying the
Defendants' Motion to Dismiss. Order on Defs.'
Mot. to Dismiss (ECF No. 29). Viewing the facts in the
light most favorable to the Plaintiffs, the Court concluded
that “but for the Ordinance, PPLC would commence plans
to reverse the flow of crude oil and would begin marketing
that oil.” Id. at 38-38. However, the Court
cautioned that “it remains to be seen whether PPLC will
amass a set of facts sufficient for the Court to make its
legal determinations [regarding justiciability] . . .
.” Id. at 40.
to the Court's Order, the parties engaged in discovery,
and on November 17, 2016, the parties filed cross motions for
summary judgment with supporting statements of material
facts. Pls.' Mot. for Summ. J. (ECF No. 87);
PSMF (ECF No. 89); Defs.' Consolidated Mot.
to Dismiss Pursuant to Rule 12(b)(1) and Mot. for Summ
J. (ECF No. 88) (Defs.' Mot. for Summ. J. and to
Dismiss); Defs.' Rule 12(b)(1) and Loc. R. 56(b)
Statement of Undisputed Material Facts [Redacted Verion]
(ECF No. 95). As part of their motion for summary judgment,
the Defendants also renewed their motion to dismiss for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1).
Defs.' Mot. for Summ. J. and to Dismiss at 2-3.
support their claim that the matter is not ripe, the
Defendants argue that there is not a sufficient supply of oil
flowing into MPLL's facilities in Montreal East to make
PPLC's flow reversal project economically feasible.
Id. at 15-16. Here, the Defendants rely on their
expert, Sarah Emerson. See Decl. of Sarah Emerson,
Ex. 1, Mem. for City of South Portland at 7-9 (ECF
No. 91) (Emerson Decl.). Ms. Emerson explains that
there are two sources of crude oil currently available to
supply PPLC's reversal project: railway infrastructure
transporting crude oil from western Canada to Quebec, and the
Enbridge Line 9 pipeline running from Sarnia, Ontario, and
terminating at MPLL's facilities in Montreal East.
Id. Ms. Emerson estimates that 60, 000 barrels per
day would be available by railway but that the high cost of
transporting crude oil by rail would make the reversal plan
uneconomical given the current market conditions.
Id. at 9.
on the Enbridge pipeline, Ms. Emerson states that the amount
of crude oil from Line 9B that would be available for PPLC to
ship south from Montreal East to South Portland “is
currently and should remain close to zero.”
Id. According to Ms. Emerson, this is because two
other refineries in Quebec-Suncor and Valero- have already
entered into “take or pay” commitments for ninety
percent of the capacity of Line 9. Id. Ms. Emerson
concludes that “as a result of the commitments by
Suncor and Valero to receive crude oil from Line 9, there is
little to no ‘spare' crude oil from Line 9”
to feed PPLC's reversal project.” Id. at
6. Because there is no “spare” crude to supply
the PPLC reversal project, the Defendants contend that the
matter is not ripe. Defs.' Mot. for Summ. J. and to
Dismiss at 15-16.
response, the Plaintiffs argue that Ms. Emerson lacks
personal knowledge of the facts asserted in her declaration,
and thus, the facts are inadmissible. Pls.' Resp. to
Defs.' Statement of Material Fact ¶ 10 (ECF No.
128). The Plaintiffs further highlight that the Defendants
“cannot point to any of the actual shipping agreements
between Suncor or Valero and Enbridge [and] can only
speculate as to what those agreements provide . . . .”
Pls.' Mem. in Opp'n to Defs.' Mot. to Dismiss
and for Summ. J. at 8-9 (ECF No. 127). Additionally, the
Plaintiffs point out that even if Suncor and Valero receive
“significant shipments” of oil from Enbridge Line
9, Enbridge can make oil available for PPLC by expanding the
throughput of Line 9 without significant investment.
Id. at 9.
11, 2017, the Court issued an interim order holding in
abeyance the parties' motions for summary judgment and
ordering further proceedings under Federal Rule of Civil
Procedure 12(b)(1) to resolve whether the Court has subject
matter jurisdiction. Interim Order at 11-12 (ECF No.
156). The Court expressed discomfort with the factual
underpinnings of Ms. Emerson's opinions, but it noted
that her testimony “raises substantial questions about
the practical ability of the Plaintiffs to move forward with
a plan to reverse the flow of their pipelines.”
Id. at 10. Rather than rule on a truncated record,
the Court requested “additional assistance from the
parties to clarify the factual jurisdictional disputes and to
provide materials of evidentiary quality to assist the
Court's determination.” Id. at 11.
8, 2017, the Court held a telephone conference in which the
parties agreed to schedule a hearing to present evidence on
the Court's subject matter jurisdiction. Min.
Entry (ECF No. 159). The parties set the hearing date
for August 9, 2017. Notice of Re-Sched. Hr'g
(ECF No. 165). In anticipation of the hearing, and in
accordance with the Court's request, both parties
submitted witness lists and summaries of their witnesses'
expected testimony. Pls.' Witness List (ECF No.
169); Defs.' Witness List (ECF No. 170);
Direct Testimony of Thomas A. Hardison (ECF No. 171)
(Hardison Decl.); Defs.' Summ. of Direct
Exam. Test. (ECF No. 173).
Plaintiffs listed Thomas A. Hardison, the president of PPLC,
as their only witness and submitted an affidavit of Mr.
Hardison summarizing his expected testimony. Pls.'
Witness List at 1; Hardison Decl. ¶¶
1-70. In his affidavit, Mr. Hardison responded to Ms.
Emerson's assertion that the amount of crude oil
available for PPLC's reversal project from Enbridge Line
9B “is currently and should remain close to
zero”. Hardison Decl. at ¶¶ 47-55.
Mr. Hardison referenced “available data” that
demonstrate that “[Enbridge] Line 9B can be a
sufficient source of volume for PPLC to support flow reversal
under current conditions.” Id. at ¶ 54.
Mr. Hardison explains that MPLL's Montreal East
facilities and Enbridge Line 9B are “physically
interconnected” and that all crude oil that arrives in
Montreal East through Line 9B passes into and through
MPLL's facilities. Id. From there, MPLL can then
store the oil in its tanks or direct the oil onward to the
Suncor or Valero refineries. Id. Mr. Hardison stated
that, as a result of this arrangement, Enbridge provides
electronic data reflecting the volume delivered from Line 9B
to the main computer that monitors and runs PPLC's
pipeline infrastructure. Id.
to Mr. Hardison, Line 9B has a stated “nameplate”
capacity of 300, 000 barrels per day. Id. at ¶
55. He claimed that the data indicate that since December
2015, Line 9B has delivered a monthly average of 215, 000
barrels per day to Suncor and Valero through MPLL's
facilities in Montreal East, thus leaving 85, 000 barrels per
day available under Line 9B's nameplate capacity.
Id. Furthermore, Mr. Hardison stated that
“there have been days where Line 9B's volume has
reached as high as 320, 000 barrels per day”-20, 000
barrels over its nameplate capacity. Accordingly, Mr.
Hardison contended that “Line 9B can make available
over 100, 000 barrels per day in volume in addition to what
Suncor and Valero currently transport on the line.”
Id. Mr. Hardison therefore concluded that there is
sufficient volume available on Line 9B to support a
successful flow reversal project. Id.
10, 2017, counsel for the Defendants sent an email to counsel
for the Plaintiffs, complaining that the Plaintiffs failed to
produce the data underlying Mr. Hardison's testimony.
Defs.' Mot. in Limine, Attach. 6, July 10,
2017 Email at 2 (ECF No. 172). Accordingly, counsel for
the Defendants demanded that the Plaintiffs produce all data
that Mr. Hardison used in formulating his testimony.
Id. at 2-3. Counsel for the Plaintiffs responded the
following day. Defs' Mot. in Limine, Attach. 7,
July 11, 2017 Email (ECF No. 172) (July 11, 2017
Email). They denied that the Defendants were entitled to
the data. Id. at 2-3. Nevertheless, counsel for the
Plaintiffs provided the Defendants with a spreadsheet showing
the monthly average of barrels of crude oil per day flowing
from the Enbridge Line 9 through MPLL's facilities in
Montreal East. Id. at 5. According to counsel for
the Plaintiffs, the spreadsheet “represents all of the
data available to PPLC that supports Mr. Hardison's
testimony about how much additional capacity on Enbridge Line
9 could be available to ship south on PPLC's
pipeline.” Id. at 4.
14, 2017, the Defendants moved in limine to exclude from
evidence any data or testimony concerning the volume of crude
oil delivered to MPLL from Line 9B. Defs.' Mot. in
Limine (ECF No. 172) (Defs.' Mot.). The
Plaintiffs responded on August 2, 2017. Pls.'
Opp'n to Defs. Mot. in Limine (ECF No. 175)
(Pls.' Opp'n). The Defendants replied on
August 4, 2017. Reply Mem. in Supp. of Defs.' Mot. in
Limine (ECF No. 176) (Defs.' Reply).
The Defendants' Motion in Limine
Defendants move in limine under Federal Rule of Civil
Procedure 37(c) and Federal Rules of Evidence 701 and 1006 to
exclude from evidence any data or testimony concerning the
volume of crude oil passing through MPLL's facilities in
Montreal East from the Enbridge 9B pipeline. Defs.'
Mot. at 1.
Federal Rule of ...