United States District Court, E.D. Kentucky, Southern Division, Pikeville
OPINION AND ORDER
E. WIER, UNITED STATES DISTRICT JUDGE
received this case by transfer on July 22, 2019, the
undersigned has carefully reviewed case status and all
filings. The pending motions are: (1) a motion to dismiss
Defendants' counterclaim (DE #15); (2) a motion to
dismiss (or for summary judgment on) Defendants'
Third-Party Complaint (DE #37); and (3) Plaintiff's
motion to amend and join (DE #42).
case concerns two right-of-way agreements (governing a
natural gas pipeline-PM-17) between predecessors of the
Lockards and of Columbia Gas. PM-17, per the agreements, runs
across the Lockards' land. Columbia accuses the Lockards
of excavating in a way that damaged or imperiled PM-17, in
violation of the agreements; the owners deny any such wrongs.
The Lockards made a cursory counterclaim and also joined Pike
County (to blame County road work for any alleged harm to
PM-17). Of late, another interested claimant relative to the
realty (Elk Horn Coal) has surfaced, complicating
Columbia's repair plans.
the Court GRANTS the motion to amend (DE
#42). Elk Horn's potential interest in or rights
concerning the land allegedly subject to the easement
obviously impacts resolution of the case, legally and
practically, and the parties and Court must fairly and
efficiently account for it. The case has no extant schedule,
Columbia's concerns about complete, economical relief are
valid, and, per Rule 15(a), the Court is to freely grant
leave to amend when, as here, justice requires. Joinder under
Rule 20(a)(2) is appropriate in this scenario, particularly
given the pre-claim, pre-repair correspondence between
Columbia and Elk Horn. See DE ##42-4 and 42-5. The
Court can take proper measures in discovery to protect the
Lockards against undue litigation burden. Thus, Columbia may
amend as sought.
the Court GRANTS the motion to dismiss the
Lockards' counterclaim (DE #15). In its current form, the
Court finds the pleading (DE #13 at 18) insufficient under
Rule 12 and the applicable standards. Here, the entire
counterclaim is one paragraph that cites a conclusory right
to a (theoretical?) damage recovery. The pleading does not
actually assert any loss under the pleaded theory. Indeed,
the answer itself denied that repair to PM-17 has occurred on
the land, see ¶ 34, which is directly counter
to the repair damage counterclaim. Without an allegation of
facts plausibly indicating a relief right, the Court must
dismiss. However, given the amendment here allowed, the
Lockards may answer the Amended Complaint and re-plead if the
facts, to include intervening events, plausibly warrant
the Court GRANTS Pike County's motion
(DE #37). The County enjoys immunity, as its motion claims.
The Court applies Kentucky governmental immunity law. See
Smith v. Cnty. of Lenawee, 600 F.3d 686, 690 (6th Cir.
2010); accord Ivey v. McCreary Cty. Fiscal Court,
939 F.Supp.2d 762, 765 (E.D. Ky. 2013). Kentucky counties and
county governments are “cloaked with sovereign
immunity.” Schwindel v. Meade County, 113
S.W.3d 159, 163 (Ky. 2003) (citation omitted). Pike County
thus “enjoy[s] the benefits and protection of
governmental immunity except where it has been explicitly
waived by the [Kentucky] legislature.” Shepherd v.
Floyd Cty., Kentucky, 128 F.Supp.3d 976, 978 (E.D. Ky.
2015) (quoting Furtula v. Univ. of Ky., 438 S.W.3d
303, 305 & n. 1 (Ky. 2014)); see also Doe v.
Patton, 381 F.Supp.2d 595, 602 (E.D. Ky. 2005)
(“County governments in Kentucky are cloaked in
sovereign immunity, unless such immunity is expressly
waived.”); accord Smith v. Peyman, 93
F.Supp.3d 738, 752 (E.D. Ky. 2015). No. party suggests waiver
here. Indeed, the Lockards do not contest immunity. Pike
County is not subject to suit, and the Court dismisses the
County as a party.
summary, the Court ORDERS as follows:
1. The Court GRANTS DE #15, DE #37, and DE
2. The Clerk SHALL file the tendered Amended
Complaint (DE #42-1) and issue process to the joined
Defendant, with service to be effected by Columbia; and
3. When Elk Horn appears, and based on the dynamics and
posture of the case, the Court REFERS this
matter to Judge Ingram for a prompt status conference (to be
held when and on the terms he directs) to discuss the case,
explore efficiencies, and address the potential for a
resolution by agreement.
 Rule 12(b)(6) survival “requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action[.]”Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).
Rule 8 sets a relatively low bar for pleading adequacy but
“does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.” Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1950 (2009). Although the
Court views well-pleaded facts in the light most favorable to
the nonmovant, accepting reasonable resulting inferences as
true, see Nwanguma v. Trump, 903 F.3d 604, 607 (6th
Cir. 2018) (citation omitted), the Court is not required to
accept “a legal conclusion couched as a factual
allegation[.]” Twombly, 127 S.Ct. at 1965.
Unadorned, naked assertions warrant no presumption of truth
and are not well-pleaded facts. Iqbal, 129 S.Ct. at
1949. Hinging on Rule 8's minimal standards,
Twombly and Iqbal require a plaintiff to
“plead facts sufficient to show that her claim has
substantive plausibility.” Johnson v. City of
Shelby, 135 S.Ct. 346, 347 (2014). The facts alleged
must “raise a right to relief above the speculative
level[, ]” id., and “state a claim that
is plausible on its face, i.e., the court must be
able to draw a ‘reasonable inference that the defendant
is liable for the misconduct alleged.'”
Nwanguma, 903 F.3d at 607 (quoting Iqbal,
129 S.Ct. at 1949 (citation omitted)). “Plausibility is
a context-specific inquiry, ” Ctr. for Bio-Ethical
Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir.
2011), “requiring the reviewing court to draw on its
experience and common sense[, ]” Iqbal, 129
S.Ct. at 1950. In deciding a dismissal motion attacking
pleading adequacy, courts must assess “the facial
sufficiency of the complaint” largely “without
resort to matters outside the pleadings[.]” Gavitt
v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (citations
 This is without prejudice to any later
determination that the initial joinder of Pike County may
impact an apportionment ...