376 F.3d 344 (5th Cir. 2004), 03-60214, McLaughlin v. Mississippi Power Co.

Docket Nº:03-60214.
Citation:376 F.3d 344
Party Name:Max V. McLAUGHLIN; et al., Plaintiffs, v. MISSISSIPPI POWER COMPANY; et al., Defendants. Interstate Fibernet Inc., Plaintiff-Appellant, v. Thirty-Seven (37) Parcels; et al., Defendants, Thirty-Seven (37) Parcels of Real Property, Located in Forrest, Hancock, Harrison, Jackson, Jones, Lamar and Lauderdale Counties, Mississippi; Bancorpsouth Bank; Ma
Case Date:June 28, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 344

376 F.3d 344 (5th Cir. 2004)

Max V. McLAUGHLIN; et al., Plaintiffs,

v.

MISSISSIPPI POWER COMPANY; et al., Defendants.

Interstate Fibernet Inc., Plaintiff-Appellant,

v.

Thirty-Seven (37) Parcels; et al., Defendants,

Thirty-Seven (37) Parcels of Real Property, Located in Forrest, Hancock, Harrison, Jackson, Jones, Lamar and Lauderdale Counties, Mississippi; Bancorpsouth Bank; Mary Jane Delmas Baugh; Terrell Ann Ford; Margaret Ford Murphy; Chantilly Corp.; Clemover Corp.; Columbia Ventures Inc.; Community Bank; Federal Land Bank Association of South Mississippi FLCA; John Ford, also known as Rena A. Ford, Trustee of the Rena A. Ford Inter Vivos Trust Agreement; Mary Elizabeth Ford, also known as Rena A. Ford, Trustee of the Rena A. Ford Inter Vivos Trust Agreement; Rena Ann Ford, also known as Rena A. Ford, Trustee of the Rena A. Ford Inter Vivos Trust Agreement; Marie Ford Horne, also known as Rena A. Ford, Trustee of the Rena A. Ford Inter Vivos Trust Agreement; H H White Limited Partnership; David Hobgood; Richard Hobgood; Robert Hobgood, also known as Robert Hobgood; Steven A. McRae, also known as Stephen McRae; Dennis L. Pierce; Ray Crowell Real Estate Inc.; Bryan Saliba; Nick Welch; Weyerhaeuser Co.; unknown others; Plum Creek South Central Timberlands, LLC, Defendants-Appellees,

Purcell Company Inc., Defendant-Counter-Claimant-Appellees,

v.

Mississippi Power Company, Counter-Defendant-Appellant.

No. 03-60214.

United States Court of Appeals, Fifth Circuit

June 28, 2004

Page 345

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Michael Brunson Wallace (argued), Phelps Dunbar, Jackson, MS, Henry John Gutierrez, Richard B. Tubertini, Phelps Dunbar, Gulfport, MS, for Interstate Fibernet Inc.

Ben H. Stone (argued), Jonathan P. Dyal, Paul Richard Lambert, Balch & Bingham, Gulfport, MS, for Mississippi Power Co.

A. Malcolm N. Murphy, Lucedale, MS, for Terrell Ford and Murphy.

Michael Clayton Barefield, Gulfport, MS, for Chantilly Corp.

Henry Payson Pate, III, John M. Ford, Pascagoula, MS, for Clemover Corp., Columbia Ventures Inc., John, Mary Elizabeth and Rena Ford and Horne.

Ray Thomas Price, Hattiesburg, MS, for Pierce and Saliba.

Carl Victor Welsh, III (argued), Pittman, Germany, Roberts & Welsh, Jackson, MS, Eugene C. Thach, Jr., Heidelberg, MS, for Purcell Co., Inc. and Welch.

Gail A. Crowell, Compton, Crowell & Hewitt, Biloxi, MS, for Ray Crowell Real Estate Inc.

Paul B. Henderson (argued), Robert Evans Sanders, Young, Williams, Henderson & Fuselier, Jackson, MS, for Weyerhauser Co.

Lawrence C. Gunn, Jr., L. Clark Hicks, Jr. (argued), Gunn & Hicks, Hattiesburg, MS, for Plum Creek South Central Timberlands LLC.

Appeal from the United States District Court for the Southern District of Mississippi.

Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:

Mississippi Power Company (MPC) and Interstate Fibernet, Inc. (IFN) appeal an order dissolving an injunction, dismissing IFN's complaint, and refusing to certify a class. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

MPC, an electricity provider, owns easements across tracts of real property owned by Nick Welch, Purcell Company, Inc., Weyerhaeuser Company, Plum Creek South Central Timberlands, LLC, and the other defendants in this suit. Among other things, these easements authorize MPC to operate telecommunications lines across the defendants' properties "in connection" with their main business of supplying electricity.

MPC entered into a contract with IFN, wherein IFN agreed to contribute to the cost of constructing and maintaining a fiber optic line through MPC's easements in exchange for the right to use the line for its commercial telecommunications business. In McDonald v. Mississippi Power Co., the Mississippi Supreme Court held that MPC had the right, under the terms of its easements, to install and to use fiber optic cables. 732 So.2d 893, 897 (Miss.1999). Additionally, the court held that MPC's sublease of the line to IFN did not

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constitute an additional servitude on the properties. Id. But the court also held that the terms of the easements prevented MPC from subleasing space on its fiber optic cables "for purposes other than those which are in connection with providing electricity." Id. The court then remanded the case. Id. at 898.

While McDonald was pending in the state trial court on remand, IFN filed this suit in federal district court, seeking a declaration that it owed no compensation to any of the defendants for its use of MPC's fiber optic line, either because MPC had the right to allow IFN to use its fiber optic line or because IFN's use of the line imposed no additional burden or servitude on the properties. In the alternative, IFN asked the district court to condemn an interest across the thirty-seven parcels of land for its use. IFN premised jurisdiction on diversity of citizenship.

Two of the defendants to the suit, Welch and Purcell, filed a class-action counterclaim against IFN and a class-action third-party complaint against MPC and Southern Company, which owns MPC. Welch and Purcell's counterclaim and third-party complaint alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (2000), slander of title, trespass, civil conspiracy, unjust enrichment, fraudulent concealment, and conversion. MPC, in turn, filed a counterclaim against Welch and Purcell, seeking a declaration that it had the right to allow third parties to use its telecommunication lines, a declaration that Welch and Purcell (and any future class members) had suffered no damages, and an injunction against Welch and Purcell (and any future class members) to prevent them from interfering with MPC's use of its telecommunications lines.

After MPC was made a party to Interstate Fibernet, the district court consolidated the suit with McLaughlin v. Mississippi Power Co., a similar suit filed by Mississippi landowners against MPC. The district court's order consolidated the two suits "for all purposes."

In the meantime, IFN filed a motion with the district court to enjoin two defendants, Bryan Siliba and Dennis Pierce, from pursuing an action they had filed in Mississippi state court against IFN and MPC. The district court granted IFN's motion, pending resolution of the court's subject-matter jurisdiction.

In accordance with their class-action counterclaim and third-party complaint, Welch and Purcell filed a motion to certify a class of similarly situated landowners. Shortly thereafter, IFN moved to file an amended complaint that requested certification of a defendant and counter-plaintiff class represented by Welch and Purcell.1 Eventually, though, Welch and Purcell filed a motion to withdraw their motion for class certification and began to oppose IFN's attempts to certify a class. Welch and Purcell asserted that the typicality and adequacy requirements for class certification under Federal Rule of Civil Procedure 23 could not be met.

On February 19, 2003, the district court issued a memorandum opinion and order. After finding that it lacked subject-matter jurisdiction over IFN's claims, the district court dismissed IFN's complaint, denied IFN and MPC's motion for class certification, and vacated the injunction against state-court proceedings. The district court also purported to dismiss "the case styled Interstate Fibernet v. Thirty-Seven (37) Parcels of Real Property." IFN appealed "from the order...

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