Columbia Gas Transmission, LLC v. Ott

• Decision Date: 28 October 2013
• Docket Number: Action No. 2:12cv172.
• Citation: 984 F.Supp.2d 508
• Parties: COLUMBIA GAS TRANSMISSION, LLC, Plaintiff, v. Aaron OTT, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

984 F.Supp.2d 508

COLUMBIA GAS TRANSMISSION, LLC, Plaintiff,

v.Aaron OTT, Defendant.

Action No. 2:12cv172.

United States District Court,

E.D. Virginia,

Norfolk Division.

Oct. 28, 2013.

Justin Michael Sizemore, Travis Aaron Sabalewski, Reed Smith LLP, Richmond, VA, Michael Sterling Dingman, Reed Smith LLP, Falls Church, VA, for Plaintiff.

Jeffrey A. Hunn, Kristen Rodrigue Jurjevich, Mark Randolf Baumgartner, Pender & Coward P.C., Virginia Beach, VA, for Defendant.

FINAL ORDER

REBECCA BEACH SMITH, Chief Judge.

This matter comes before the court on the Defendant's Motion for Summary Judgment, filed June 6, 2013, and on the Plaintiff's Motion for Summary Judgment, filed June 20, 2013. The Motions were referred to United States Magistrate Judge Lawrence R. Leonard by Order on July 3, 2013, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned proposed findings of fact, if applicable, and recommendations for the disposition of the Motions.

The United States Magistrate Judge's Report and Recommendation was filed on September 27, 2013. The Magistrate Judge recommended granting the Plaintiff's Motion for Summary Judgment and denying the Defendant's Motion for Summary Judgment. By copy of the Report and Recommendation, the parties were advised of their right to file written objections thereto. On October 11, 2013, the court received the Defendant's Objections to the Magistrate Judge's Report and Recommendation, and on October 25, 2013, the court received the Plaintiff's Response to the Objections.

The court, having examined the Objections and Response to the Objections to the Report and Recommendation and having made de novo findings with respect thereto, does hereby adopt and approve in full the findings and recommendations set forth in the Report and Recommendation of the United States Magistrate Judge filed September 27, 2013. Accordingly, the court GRANTS the Plaintiff's Motion for Summary Judgment and DENIES the Defendant's Motion for Summary Judgment.

The Clerk shall enter judgment for the Plaintiff and the case is DISMISSED from the docket. The Clerk shall forward a copy of this Final Order to counsel for the parties.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

LAWRENCE R. LEONARD, United States Magistrate Judge.

Before the Court are the parties', Columbia Gas Transmission, LLC (“Columbia”), and Aaron Ott (“Ott”), Motions for Summary Judgment. ECF Nos. 26, 28. After being fully briefed, the Motions were referred for disposition to the undersigned U.S. Magistrate Judge (“undersigned”) pursuant to a July 3, 2013, Referral Order from the Chief U.S. District Judge and in accordance with 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), and Local Civil Rule 72. Upon reviewing the briefs, the undersigned disposes of the Motions on the papers without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that Columbia's Motion for Summary Judgment, ECF No. 28, be GRANTED and Ott's Motion for Summary Judgment, ECF No. 26, be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Columbia is a limited liability company, the sole member of which is Columbia Energy Group (“CEG”). ECF No. 27 at 3, ¶ 4. Ott, an individual, purchased, currently owns, and presently resides on real property located at 1437 Glendale Avenue, Chesapeake, Virginia 23323 (“property”). Id. at 3, ¶¶ 1–2. He purchased this property by a September 18, 2009 warranty deed, which was recorded on October 1, 2009, in the land records of Chesapeake, Virginia. ECF No. 29 at 3, ¶ 3. Pursuant to this deed, the property was purchased “subject to the easements, conditions, and restrictions of record insofar as they may lawfully affect” it, including two right-of-way (“ROW”) agreements. Id. at 3–4, ¶¶ 4–5.

The first right-of-way agreement, dated November 17, 1950 (“1950 ROW”), granted a fifteen-foot wide easement on the property to the Commonwealth Natural Gas Corporation (“Commonwealth Natural”) from Wm. W. Old, Jr., in his capacity as receiver for the Willow Glen Corporation. ECF No. 27 at 4, ¶ 10. It also provided

[t]hat the owners of said land, their heirs and assigns, shall have the right to use the land within said Easement and Right–of–Way for their own purposes, provided such use shall not interfere with the proper and efficient installation, maintenance and operation of said pipe lines and appurtenances, and provided further that no buildings or structures of any nature be erected within said Right–of–Way.

Id. at 5, ¶ 13. The second right-of-way agreement, dated February 25, 1963 (“1963 ROW”), granted a fifty-five-foot wide easement on the property, which is directly adjacent to the 1950 ROW, to Commonwealth Natural from P.A. Agelasto, Jr., the executor of the estate of W.T. Stonecypher. Id. at 4–5, ¶¶ 11–12. It also provided “that the gas line to be laid ... shall be constructed and maintained below cultivation, so that Grantors may fully use and enjoy the premises, subject to the rights of the rights of the Grantee to maintain and operate said line or lines.” Id. at 5, ¶ 14. Collectively, the 1950 and 1963 ROWs create a seventy-foot wide easement on the property. ECF No. 29 at 5, ¶ 9. Columbia and Ott are successors-in-interest to the grantees and grantors, respectively, of the 1950s and 1963 ROWs. ECF No. 27 at 5, ¶¶ 15–16.

Since purchasing the property, Ott has maintained a fence, which is situated on the 1950 ROW, and an above-ground swimming pool and shed, which are situated on the 1963 ROW (collectively, “improvements”).¹ ECF No. 29 at 5, ¶ 10. Running across the property and below grade of the 1950 and 1963 ROWs are two high-pressure natural gas transmission pipelines—the twelve-inch VM 107 and the sixteen-inch VM 108—that are maintained and operated by Columbia. Id.

On March 30, 2012, Columbia filed suit against Ott in this Court, claiming the above-ground swimming pool, shed, and fence are encroachments. It contends these improvements impair its ability to maintain and operate its pipelines in a safe and effective manner, thereby posing a risk to person, property, and the uninterrupted delivery of natural gas to the Tidewater area of Virginia. Despite Columbia's demand, Ott has refused to remove the improvements. This suit followed, and, therein, Columbia requests that the Court find that the improvements breach the 1950 and 1963 ROWs, order their removal, and enjoin Ott from further encroaching on the ROWs. Ott filed an Answer on October 25, 2012, and an Amended Counterclaim on November 8, 2012, claiming inverse condemnation. Although Columbia moved to dismiss the Amended Counterclaim for failure to state a claim, the Court denied the motion on January 2, 2013, 2013 WL 28286. Columbia subsequently answered the Amended Counterclaim on January 16, 2013. On June 6, 2013, Ott moved for summary judgment as to the Complaint, and on June 20, 2013, Columbia moved for summary judgment as to its Complaint and Ott's Amended Counterclaim. After being fully briefed, the Motions, which are now ripe, were referred to the undersigned for disposition pursuant to a July 3, 2013, Referral Order from the Chief U.S. District Judge.

II. JURISDICTION AND VENUE

The parties maintain, and the undersigned concurs,² that the Court may properly exercise subject-matter jurisdiction on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). First, there is complete diversity of citizenship between the parties: Ott, an individual, is a citizen of Virginia, ECF No. 27 at 3, ¶ 1, and Columbia, a limited liability company with its sole member being CEG, is a citizen of Delaware (where CEG is incorporated) and Ohio (where CEF has its principal place of business), ³ ECF No. 29 at 3, ¶ 1; see O'Connor v. Columbia Gas Transmission Corp., No. 3:09CV00022, 2009 WL 1491035, at *1 (W.D.Va. May 26, 2009) (“CEG is a Delaware corporation with its principal place of business in Ohio and has no offices in Virginia. Because a limited liability company is a citizen of every state in which any one of the owners of the company is a citizen, ... Columbia should be considered a citizen of Delaware and Ohio—not Virginia.”) (citations and footnote omitted). Second, the amount-in-controversy exceeds $75,000.00. See ECF No. 29 at 10 (“Columbia is seeking to avoid ‘catastrophic’ harm that would easily and obviously exceed $75,000.”); id., attach. 1 at 3, ¶ 10 (“Columbia's average daily revenue from the operation of the Pipeline exceeds $31,000.”); Tex. E. Transmission Corp. v. Giannaris, 818 F.Supp. 755, 759 (M.D.Pa.1993) (concluding the plaintiff demonstrated by a preponderance of the evidence that the value of the natural gas pipeline right-of-way, the public interest in preventing the physical and environmental catastrophe that could result from an improperly maintained pipeline, and the costs which the plaintiff would incur if the pipelines were closed, exceed the jurisdictional amount). The Court also may properly exercise general personal jurisdiction over Ott, a citizen of Virginia. See Day v. Mount Vernon Fire Ins. Co., No. 1:12cv669 (LMB/IDD), 2013 WL 3144827, at *8 (E.D.Va. Jan. 23, 2013) (“Personal jurisdiction is proper over the ... parties, as they are all citizens of Virginia.”) (citation omitted). Finally, venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b)(1) and (2) because Ott presently resides and the property that is the subject of this suit is located in the Eastern District of Virginia, Norfolk Division.

III. STANDARDS OF REVIEW

A. Declaratory Judgment

Columbia requests declaratory relief, pursuant to 28 U.S.C. § 2201, by asking this Court to construe the terms of the 1950 and 1963 ROWs and find that the improvements Ott has maintained on his property breach these ROWs. That statute states: “...