Atl. Coast Pipeline, LLC v. 5.63 Acres
| Decision Date | 28 February 2018 |
| Docket Number | CASE NO. 6:17-cv-92,CASE NO. 6:18-cv-14,CASE NO. 3:18-cv-6,CASE NO. 6:17-cv-85,CASE NO. 6:18-cv-21,CASE NO. 5:18-cv-35,CASE NO. 5:18-cv-9,CASE NO. 5:18-cv-31,CASE NO. 5:18-cv-19,CASE NO. 5:18-cv-13,CASE NO. 5:18-cv-32,CASE NO. 6:18-cv-7,CASE NO. 5:17-cv-116,CASE NO. 6:18-cv-18,CASE NO. 6:18-cv-20,CASE NO. 5:18-cv-20,CASE NO. 6:17-cv-89,CASE NO. 5:18-cv-12,CASE NO. 5:18-cv-26,CASE NO. 6:18-cv-12,CASE NO. 6:17-cv-84,CASE NO. 6:17-cv-93,CASE NO. 6:18-cv-16,CASE NO. 5:18-cv-34,CASE NO. 6:18-cv-13,CASE NO. 6:18-cv-19,CASE NO. 6:18-cv-22 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 5.63 ACRES, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 19.76 ACRES, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 2.58 ACRES, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 1.40 ACRES, MORE OR LESS, IN CUMBERLAND COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 1.29 ACRES, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 2.66 ACRES, MORE OR LESS, IN CUMBERLAND COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 4.95 ACRES, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 5.15 ACRES, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 1.16 ACRES, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 4.86 ACRES, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 1.74 ACRES, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 5.07 ACRES, MORE OR LESS, IN CUMBERLAND COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 0.07 ACRE, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 0.94 ACRE, MORE OR LESS, IN BUCKINGHAM COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 4.61 ACRES, MORE OR LESS, IN CUMBERLAND COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 0.07 ACRE, MORE OR LESS, IN NELSON COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 5.47 ACRES, MORE OR LESS, IN AUGUSTA COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 11.16 ACRES, MORE OR LESS, IN AUGUSTA COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 0.23 ACRE, MORE OR LESS, IN HIGHLAND COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 0.17 ACRE, MORE OR LESS, IN AUGUSTA COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 4.63 ACRES, MORE OR LESS, IN AUGUSTA COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 0.21 ACRE, MORE OR LESS, IN HIGHLAND COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 2.86 ACRES, MORE OR LESS, IN AUGUSTA COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 5.49 ACRES, MORE OR LESS, IN AUGUSTA COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 27.85 ACRES, MORE OR LESS, IN BATH COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 0.47 ACRE, MORE OR LESS, IN AUGUSTA COUNTY, VIRGINIA, ET AL., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. 1.72 ACRES, MORE OR LESS, IN AUGUSTA COUNTY, VIRGINIA, ET AL., Defendants. |
These condemnation cases involve the Atlantic Coast Pipeline, a gas pipeline planned to run through West Virginia, Virginia, and North Carolina. The plaintiff is Atlantic Coast Pipeline, LLC ("ACP") and the defendants are landowners of various parcels (and the parcels themselves) within counties in south-central and western Virginia. The cases are before the Court on ACP's motions for partial summary judgment and for a preliminary injunction granting it immediate possession of the properties. ACP claims it needs immediate possession by March 1, 2018 to complete tree felling before that activity is foreclosed in mid-March 2018 by the Migratory Bird Act. Otherwise, claims ACP, pipeline construction would be delayed.1
ACP filed these cases between December 2017 and February 2018. In late January 2018, ACP began requesting expedited hearings on its motions, although several Landowners had not yet been served or appeared. The Court granted an expedited hearing, reserving issues of notice and related procedural matters for the hearing. The evidentiary hearing and oral argument were held on February 26-27, 2018. Prior to the hearing, some Landowners entered appearances through counsel and engaged in expedite discovery after obtaining leave of court. Other Landowners did not make an appearance at the hearing, either through counsel or pro se.
In this Omnibus Memorandum Opinion, I address together arguments raised by various Landowners, making note of case- or parcel-specific arguments or facts when necessary. After considering the parties' evidence and arguments, the Court finds that ACP's motions for summary judgment and immediate possession in several cases should be deferred for lack of sufficient notice and opportunity to heard by certain Landowners. The motions, however, should be granted either in whole or in part as to other parcels and Landowners.
At outset of the hearing, these cases were called by the Clerk. No Landowner without counsel identified himself or herself as present. During the hearing, the Court on multiple occasions invited any unrepresented Landowner present to examine the witnesses or make statements. No unrepresented Landowner spoke up or otherwise identified himself or herself. Throughout, ACP submitted documentation and elicited testimony that goes to its motions in each of these cases. But before turning to the merits, the Court must address the extent to which the Fifth Amendment's Due Process Clause and various procedural rules circumscribe the ability to rule on ACP's motions, at least currently for some of the cases.
"It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process." Taylor v. Sturgell, 553 U.S. 880, 884 (2008) (citing Hansberry v. Lee, 311 U.S. 32, 40 (1940)); Ensor v. Rollins, 952 F.2d 395 (4th Cir. 1991) (unpublished) (). Thus, the Court cannot enter summary judgment or an injunction against a party who has not yet been served. See also infra ( Fourth Circuit law in condemnation context requiring determination of substantive right to condemn before granting injunction for immediatepossession); Fed. R. Civ. P. 65(a)(1) ().
But due process requires more than bare notice. Nelson v. Adams USA, Inc., 539 U.S. 460, 467 (2000). "A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful." City of W. Covina v. Perkins, 525 U.S. 234, 240 (1999). The point of such notice is "to apprise the affected individual of, and permit adequate preparation for, an impending hearing." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14-15 (1978) (emphasis added); see Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (). The notice "must afford a reasonable time for those interested to make their appearance." Mullane, 339 U.S. at 314.
Building upon these principles, the Fourth Circuit has recently summarized the preconditions for summary judgment.
[B]efore granting summary judgment, a court must afford the losing party notice and an opportunity to be heard. See [Allstate Ins. Co. v. Fritz, 452 F.3d 316, 323 (4th Cir. 2006)]. The court must give notice to ensure that the party is aware that it must "come forward with all of [its] evidence." Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Once such party has sufficient notice, the party also needs an "adequate opportunity" to present its case and "demonstrate a genuine issue of material fact." U.S. Dev. Corp. v. Peoples Fed. Sav. & Loan Ass'n, 873 F.2d 731, 735 (4th Cir. 1989). These requirements serve to provide the party with a "full and fair opportunity to present its case." aaiPharma Inc. v. Thompson, 296 F.3d 227, 235 (4th Cir. 2002).
Adams Hous., LLC v. City of Salisbury, Md., 672 F. App'x 220, 222 (4th Cir. 2016).
These authorities, then, present the question of how much advanced notice is needed to afford the Landowners "adequate preparation" time and ensure the opportunity to be heard is "meaningful." Perkins, 525 U.S. at 240; Craft, 436 U.S. at 14-15. The question is relevant herebecause either all or some Landowners in certain cases were served with the complaints and motions against them only a few days before the hearing. There is no ironclad rule governing every situation: Due process "'is not a technical conception with a fixed content unrelated to time, places and circumstances,' it is 'flexible and calls for such procedural protections as the particular situation demands.'" United States v. Timms, ...
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