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Case 3:10-cv-01385-N Document 9 Filed 08/11/10 Page 1 of 11 PageID 73

IN THE UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

JIM SCOMA and LINDA SCOMA, §


§
Plaintiffs, §
§
v. § Civil Action No. 3:10-CV-1385-N
§ ECF
CHESAPEAKE ENERGY §
CORPORATION, CHESAPEAKE §
OPERATING, INC., a Wholly- §
owned Subsidiary of §
CHESAPEAKE ENERGY §
CORPORATION, and §
CHESAPEAKE EXPLORATION,
LLC, a Wholly-owned Subsidiary of
CHESAPEAKE ENERGY,

Defendants.

PLAINTIFFS’ SECOND AMENDED COMPLAINT

TO THE HONORABLE JUDGE OF THE UNITED STATES DISTRICT COURT:

Plaintiffs Jim and Linda Scoma file this Second Amended Complaint

complaining of Defendants Chesapeake Energy Corporation, Chesapeake

Operating, Inc., a wholly-owned subsidiary of Chesapeake Energy Corporation, and

Chesapeake Exploration, LLC, a wholly-owned subsidiary of Chesapeake Energy

Corporation, and would state the following:

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I.
JURISDICTION AND VENUE

1. The Court has jurisdiction over the lawsuit under U.S.C. § 1332(a)(1)

because the Plaintiffs, Jim Scoma and Linda Scoma, and the Defendants

Chesapeake Energy Corporation, Chesapeake Operating, Inc. a wholly-owned

subsidiary of Chesapeake Energy Corporation, and Chesapeake Exploration, LLC, a

wholly-owned subsidiary of Chesapeake Energy Corporation, are citizens of

different states and the amount in controversy exceeds $75,000, excluding interest

and costs.

II.
PARTIES

1. Plaintiff Jim Scoma is the husband of Linda Scoma and is an

individual who resides in Johnson County, Texas.

2. Plaintiff Linda Scoma is the wife of Jim Scoma and is an individual

who resides in Johnson County, Texas.

3. Defendant Chesapeake Energy Corporation is a foreign corporation in

the State of Oklahoma at 6100 N. Western Ave., Oklahoma City, Oklahoma 73118.

Defendant conducts business in the State of Texas and has its branch office at 301

Commerce St. Suite 600, Fort Worth, Texas 76102. This Defendant has made a

special appearance, and subject thereto, has answered.

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4. Defendant Chesapeake Operating, Inc. is a wholly owned subsidiary of

Chesapeake Energy Corporation. Defendant conducts business in the State of

Texas and has its branch office at 301 Commerce Street, Suite 600, Fort Worth,

Texas 76102. Process service may be had upon Defendant by agreement by serving

citation to its counsel of record, Roger C. Diseker, Kelly Hart & Hallman, L.L.P.,

201 Main Street, Suite 2500, Fort Worth, Texas 76102.

5. Defendant Chesapeake Exploration, LLC is a wholly owned subsidiary

of Chesapeake Energy Corporation. Defendant conducts business in the State of

Texas and has its branch office at 301 Commerce Street, Suite 600, Fort Worth,

Texas 76102. Process service may be had upon Defendant by agreement by serving

citation to its counsel of record, Roger C. Diseker, Kelly Hart & Hallman, L.L.P.,

201 Main Street, Suite 2500, Fort Worth, Texas 76102.

III.
FACTS

1. Plaintiffs, Jim Scoma and Linda Scoma, are the owners of real property

located at 4012 Chisholm Trail, Johnson County, Crowley, Texas 76036. Their

land is situated on the geographic strata known as the Newark East Field or Barnett

Shale.

2. Defendants performed and continues to perform drilling-related

activities near Plaintiffs property. Among their activities, Defendants have applied

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an extraction method known as hydraulic fracturing, or “fracking,” to increase

productivity of their wells by shooting chemical fluids underground to fracture rock

formations. Defendants have also stored their drilling waste at sites and disposal

wells near the Scomas’ property and have disposed of their fracturing waste in

injection wells near the Scomas’ property.

3. As a result of Defendants’ activities, Plaintiffs’ water well, the only

source of drinking water for Plaintiffs at their property, became contaminated.

Plaintiffs could not continuously use their water for drinking and washing because

the well water intermittently turned an-orange/yellow color, tasted bad, and gave off

a foul odor. Testing results performed on the well water in 2008 and again in 2009

show an increased concentration of harmful petroleum byproducts, such as benzene

(a well-known cancer-causing agent), toluene, ethylbenzene, xylene, barium, and

iron.

4. Plaintiffs have previously given Chesapeake Energy Corporation, the

parent company of Chesapeake Operating, Inc. and Chesapeake Exploration, LLC,

notice of the well water contamination by Defendants’ drilling-related activities.

IV.
STATUTE OF LIMITATIONS TOLLED

1. The recurring wrongful conduct of Defendants, which has been

repeated over a period of time which caused intermittent contamination of

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Plaintiffs’ well water, constitutes a continuing tort. Pursuant to the Continuing Tort

Doctrine, a claim for a continuing tort does not accrue until the tortious conduct

ceases, and to the best of Plaintiffs’ knowledge, the drilling and contamination

continues. This operates to toll the running of the two year limitations period under

§ 16.003 of the Texas Civil Practice & Remedies Code.

V.
NUISANCE CAUSE OF ACTION AGAINST EACH DEFENDANT

1. When Defendant conducted its drilling-related activities, as described

above, Defendant interfered with and invaded the Plaintiffs’ private interest in their

land by contaminating their only source of drinking water.

2. Defendant’s drilling-related activities of hydraulic fracturing and

storage of drilling waste in disposal wells, injection wells, or other sites near the

Scomas’ property constitute conduct that is negligent, or intentional and

unreasonable, or abnormal and out of place in its surroundings.

3. The acts and omissions of Defendant resulted in contamination of the

well water on Plaintiffs’ property, which substantially interfered with and prevented

Plaintiffs from the use and enjoyment of their well water for drinking and washing.

The contaminated well water offended the Plaintiffs’ senses and made their

enjoyment of their property uncomfortable and inconvenient.

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4. The contamination of the well water is a proximate cause of Plaintiffs’

damages.

VI.
TRESPASS CAUSE OF ACTION AGAINST EACH DEFENDANT

1. Defendant trespassed upon Plaintiffs’ land by exceeding the rights

granted for drilling on land adjacent to Plaintiffs’ land because Defendant’s drilling-

related activities resulted in contamination of Plaintiffs’ sub-surface well water

beneath their property.

2. Defendant physically, intentionally, and voluntarily caused and

permitted petroleum byproducts to cross Plaintiffs’ property boundaries and enter

into Plaintiffs’ land and contaminate Plaintiffs’ well water.

3. Defendant’s trespass resulted in physical damage to Plaintiffs’ property

and caused injury to Plaintiffs’ right of possession. As a result of each of

Defendant’s unauthorized entry, Plaintiffs could neither drink from, nor use the well

water for washing or daily living activities.

4. Defendant’s trespass is a proximate cause of Plaintiffs’ damages.

VII.
NEGLIGENCE CAUSE OF ACTION AGAINST EACH DEFENDANT

1. In conducting its drilling activities, Defendant owed a duty of care to

Plaintiffs to not negligently or unnecessarily damage Plaintiffs’ surface estate,

including the subsurface of Plaintiffs’ estate, i.e., the Plaintiffs’ well water.

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2. After notice, Defendant failed to use the ordinary care of a reasonable

person. It knowingly continued drilling-related activities that caused contamination

of petroleum byproducts in Plaintiffs’ well water.

3. Defendant failed to use a reasonable alternative means of recovering

the minerals pursuant to the accommodation doctrine. Defendant reasonably could

have used an alternative means of mineral recovery. On the other hand, Plaintiffs

reside on their property and have no reasonable alternative use of their well water,

other than to rely on it for drinking and washing.

4. The acts and omissions of Defendant constitute negligence and were a

proximate cause of the occurrence, damages, and injuries sustained by Plaintiffs.

VIII.
DAMAGES OF PLAINTIFF JIM SCOMA

1. As a result of the incident described herein, Jim Scoma has incurred

past expenses related to testing the contaminated well water and buying water from

an alternative source, which in all reasonable probability such expenses will

continue in the future.

2. Plaintiff has suffered loss of use of his land, which in all reasonable

probability such loss will continue in the future.

3. Plaintiff has suffered loss of market value of his land, which in all

reasonable probability such loss will continue in the future.

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4. Plaintiff has suffered loss of the intrinsic value of the well water,

which in all reasonable probability such loss will continue in the future.

5. Plaintiff has suffered emotional harm and mental anguish from

deprivation of enjoyment, loss of peace of mind, annoyance, inconvenience, and

anxiety about the contaminated well water, which in all reasonable probability such

mental anguish will continue in the future.

6. Plaintiff also seeks to recover nominal damages for each and every

trespass by each Defendant, in addition to the actual damages described above.

7. Plaintiff seeks to recover exemplary damages against all Defendants in

accordance with Texas Civil Practice and Remedies Code, § 41.001, et. seq.

IX.
DAMAGES OF PLAINTIFF LINDA SCOMA

1. As a result of the incident described herein, Linda Scoma’s hair turned

an orange color from washing her hair with the contaminated well water. Mrs.

Scoma has incurred past expenses related to testing the contaminated well water and

buying water from an alternative source, which in all reasonable probability such

expenses will continue in the future.

2. Plaintiff has suffered loss of use of her land, which in all reasonable

probability such loss will continue in the future.

3. Plaintiff has suffered loss of market value of her land, which in all

reasonable probability such loss will continue in the future.


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4. Plaintiff has suffered loss of the intrinsic value of the well water,

which in all reasonable probability such loss would continue in the future.

5. Plaintiff has suffered emotional harm and mental anguish from

deprivation of enjoyment, loss of peace of mind, annoyance, inconvenience, and

anxiety about the contaminated well water, which in all reasonable probability such

mental anguish will continue in the future.

6. Plaintiff also seeks to recover nominal damages for each and every

trespass by each Defendant, in addition to the actual damages described above.

7. Plaintiff seeks to recover exemplary damages against all Defendants in

accordance with Texas Civil Practice and Remedies Code, § 41.001, et. seq.

X.
EQUITABLE RELIEF

1. Plaintiffs seek a permanent injunction against Defendants, precluding

future drilling and fracking activities near Plaintiffs’ land.

XI.
CLAIM FOR PRE-JUDGMENT AND POST-JUDGMENT INTEREST

1. Plaintiffs seek interest in accordance with Texas Finance Code §

304.001, et seq., and any other applicable law.

XII.
REQUEST FOR JURY TRIAL

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Plaintiffs hereby request that a jury of their peers be empaneled to hear and

decide the fact issues presented in this case. Plaintiffs tender the required fees

herein.

WHEREFORE, Plaintiffs Jim and Linda Scoma pray that Defendants

Chesapeake Energy Corporation and Chesapeake Operating, Inc., a wholly-owned

subsidiary of Chesapeake Energy Corporation, and Chesapeake Exploration, LLC, a

wholly-owned subsidiary of Chesapeake Energy Corporation, be cited to appear and

answer herein; and upon final trial, that Plaintiffs have judgment against Defendants

for actual damages, cost of suit, pre-judgment and post-judgment interest at the

highest legal rates, and for such other relief, both general and special, at law or in

equity, to which Plaintiffs may be justly entitled.

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Respectfully submitted,

TURLEY LAW FIRM

/s/ T Nguyen

T Nguyen
State Bar No. 24051116
6440 North Central Expressway
1000 Turley Law Center
Dallas, Texas 75206
Telephone No. 214/691-4025
Telecopier No. 214/361-5802

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was
served on the following counsel of record via the Court’s ECF filing system
pursuant to Fed. R. Civ. P. 5 and L.R. 5.1(d) on this 11th day of August, 2010.

Bart A. Rue
Roger C. Diseker
Clark H. Rucker
Kelly Hart & Hallman, L.L.P.
201 Main Street, Suite 2500
Fort Worth, Texas 76102

/s/ T Nguyen

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