Columbia Gas v. Mangione Enterprises

• Decision Date: 02 May 1996
• Docket Number: No. CIV. AMD-94-2955.,CIV. AMD-94-2955.
• Parties: COLUMBIA GAS TRANSMISSION CORPORATION, Plaintiff, v. MANGIONE ENTERPRISES OF TURF VALLEY, L.P., Defendant.
• Court: U.S. District Court — District of Maryland

Page 199

964 F.Supp. 199

COLUMBIA GAS TRANSMISSION CORPORATION, Plaintiff, v. MANGIONE ENTERPRISES OF TURF VALLEY, L.P., Defendant.

No. CIV. AMD-94-2955.

United States District Court, D. Maryland.

May 2, 1996.

Roger D. Redden, Kurt J. Fischer, Piper & Marbury, Baltimore, MD, for plaintiff.

Joseph C. LaVerghettaa, Lutherville, MD, for defendant.

ORDER

DAVIS, District Judge.

On October 31, 1995, I issued an Order in this case granting the plaintiff's, Columbia Gas Transmission Corporation ("Columbia"), motion for summary judgment. I also issued a declaratory judgment to the effect that Columbia had certain rights-of-way adjacent to their natural gas pipelines and that defendant, Mangione Enterprises of Turf Valley, L.P. ("Turf Valley"), had located certain permanent structures in those rights-of-way. Accordingly, I issued an injunction ordering Turf Valley to remove all structures encroaching on Columbia's rights-of-way within thirty days from October 31, 1995.

On January 16, 1996, Columbia filed a motion for contempt of this Court's October 31, 1995, Order, alleging that Turf Valley had failed to remove the encroachments specified in the Order. By March 8, 1996, counsel for Turf Valley had failed to file any response to Columbia's motion, and I issued an Order directing him to do so. Upon receiving Turf Valley's response, I referred this matter to Magistrate Judge Gauvey to conduct a hearing and to make proposed findings of facts and recommendations as to the disposition of the plaintiff's motion for contempt. Judge Gauvey held a hearing on April 26, 1996. I am in receipt of her Report and Recommendation and the time for filing objections has now passed. Fed.R.Civ.P. 72.

I have reviewed Judge Gauvey's Report and Recommendation, and I hereby adopt and confirm her findings and conclusions. I find, therefore, that Turf Valley is in contempt of this Court's October 31, 1995, Order. Accordingly, it is this 31st day of May 1996, by the United States District Court for the District of Maryland,

(1) ORDERED that Columbia Gas Transmission Corporation's Motion for Contempt BE, and hereby IS, GRANTED in accordance with the attached Order submitted by the plaintiff; and it is further

(2) ORDERED that Karen A. Amos, Esq., 8355 Court Avenue, Ellicott City, Maryland 21043, be appointed as Trustee to realize removal of the structures encroaching on Columbia's natural gas pipelines' rights-of-ways as specified in this Court's October, 31, 1995, Order; and it is further

(3) ORDERED that defendant, Mangione Enterprises of Turf Valley, L.P., bear the costs of the Trustee and the costs of removal; and it is further

(4) ORDERED that defendant, Mangione Enterprises of Turf Valley, L.P., pay Columbia Gas Transmission Corporation's reasonable attorney's fees in the amount of $5135.00 and costs in the amount of $236.84.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the attached Order, by United States mail, upon the attorneys of record for the parties appearing in this case.

ORDER

Upon consideration of the Motion for Contempt and Other Relief filed by Plaintiff, it is this 31st day of May, 1996.

ORDERED that:

1. The Motion is hereby GRANTED;

2. Turf Valley is adjudged in contempt of this Court's Order dated October 31, 1995;

3. A Trustee,, shall be appointed for the sole purpose of taking the actions necessary on behalf of Turf Valley to comply with the Order of this Court dated October 31, 1995 that have been filed in this case;

4. On further application by the Trustee and Order of this Court, Turf Valley shall pay the reasonable costs incurred by the Trustee for performing the duties pursuant to this Order, including the cost of a bond and a reasonable fee for the Trustee; and

5. The Clerk of Court shall mail a copy of this Order to all attorneys of record.

REPORT AND RECOMMENDATION

By Order dated March 19, 1996, the Honorable Andre M. Davis referred to the undersigned Magistrate Judge Plaintiff's Motion for Contempt, for hearing, proposed findings of fact and recommendations as to disposition. (Paper No. 20). By letter dated April 5, 1996 addressed to counsel for Plaintiff and Defendant, the Court gave notice to the parties of the time and place of the hearing and the essential facts constituting the alleged contempt, and advised the parties that proof of the contempt and any defense thereto must be presented through live testimony, not by way of affidavit. (Paper No. 21).

The hearing was held on April 26, 1996. At the hearing, Columbia offered eight exhibits into evidence as well as the testimony of Mr. Roger Redden as an expert on the attorney's fees requested and Mr. Donald Blizzard, Operations Supervisor for Columbia, on the continued presence of permanent structures on Columbia's rights of way in violation of the October 31, 1995 Order of this Court. After advising defense counsel, Mr. LaVerghetta, of Rule 3.7 of the Maryland Code of Professional Conduct, and after Plaintiff's counsel expressed no objection under that Rule to Mr. LaVerghetta testifying as a witness while remaining as counsel to the defendant, Mr. LaVerghetta testified under oath and responded to questions from counsel and the Court on Turf Valley's efforts to comply with this Court's Order of October 31, 1995. Although Mr. LaVerghetta questioned the "permanent" nature of the structures, he did not contest the continued presence of the structures within Columbia's rights of way. Mr. LaVerghetta offered no documentary evidence. Based on the evidence presented at the hearing and arguments of counsel, the undersigned makes the following findings of fact and recommendations.

FINDINGS OF FACT

1. On October 26, 1994, the Plaintiff, Columbia Gas Transmission Corporation ("Columbia"), filed a complaint for declaratory judgment and injunctive relief against the Defendant, Mangione Enterprises of Turf Valley, L.P. ("Turf Valley"). (Paper No. 1). On February 23, 1995, Columbia filed a Second Amended Complaint, seeking a declaration that Turf Valley, in violation of federal law, had located certain permanent structures within the rights of way of two gas pipelines of Columbia, specifically, a wooden deck, a ground level and an elevated driving range deck, a module office and two trees. (Paper No. 9).

2. On October 4, 1995, the Plaintiff filed a Motion for Summary Judgment. (Paper No. 13). The Defendant filed no response.

3. On October 31, 1995, the District Court granted Plaintiff's Motion for Summary Judgment, finding that federal safety requirements necessitate that Columbia maintain rights of way adjacent to their pipelines and that Turf Valley had located permanent structures in the rights of way of these pipelines, specifically, two trees, a module office, a ground level and elevated driving range deck. (Paper No. 14, ¶¶ 8 and 9.) Having so found, the District Court ordered Turf Valley to "within thirty days of the day of this Order, remove all structures that are (a) within thirty feet of Columbia's pipeline designated line MA, and (b) within twenty-five feet of Columbia's pipeline designated line MB, including the structures specifically described in paragraph 9 above," and further directed the Clerk of the Court to mail a copy of this Declaratory Judgment and Order to counsel of record.

4. Counsel for Defendant has stated that he did not receive a copy of the Declaratory Judgment and Order from the Court.¹

5. By facsimile dated December 13, 1995, Plaintiff's counsel transmitted to Defendant's counsel the October 31, 1995 Order of the District Court. (Plaintiff's Exhibit No. 1).

6. By letter dated December 28, 1995, Plaintiff's counsel contacted Defendant's counsel, stating his client's desire to have the encroachments removed from the right of way, pursuant to Judge Davis' Order "immediately" and warning him that unless he heard from him before the close of business on January 2, 1996, he would file a motion for contempt to enforce the Order. (Plaintiff's Exhibit No. 6). That letter also stated that Plaintiff's counsel had attempted three times prior to the December 28, 1995 letter to speak directly with Defendant's counsel, but had been unsuccessful and that Defendant's counsel had not returned his telephone calls. Id.

7. On January 16, 1996, Plaintiff filed a Motion for Contempt, seeking to enforce the October 31, 1995 Order of the Court and asking that the Court hold Turf Valley in contempt, appoint a trustee for Turf Valley at Turf Valley's expense to take all actions on behalf of Turf Valley necessary to comply with the Court's Order and order Turf Valley to pay Columbia's reasonable attorney's fees and costs incurred in its enforcement of the Order. (Paper No. 16).

8. Turf Valley did not file any response to this Motion in the time allowed by the Rules.

9. On March 8, 1996, the Court (The Honorable Andre M. Davis) issued an Order directing Turf Valley to file a response to the pending Motion for Contempt and other relief or an explanation as to why a response cannot be filed, on or before March 16, 1996. (Paper No. 17).

10. On March 18, 1996, in its response, Turf Valley stated, inter alia, that it anticipated that the principals of the parties would be meeting shortly to discuss the subject litigation as well as other matters. (Paper No. 18).

11. On March 21, 1996, Columbia filed its Reply to Answer to Motion for Contempt and Other Relief in which it was stated:

Turf Valley requested the meeting with Columbia officials to discuss Turf Valley's planned development in areas adjacent to Columbia's natural gas pipeline and to discuss the removal of the encroaching structures, pursuant to this Court's October 31, 1995 Order. Columbia agreed to this meeting with the clear understanding that it was not willing to stay or postpone the Motion for Contempt or Other Relief before this Court. Turf Valley was explicitly told that the removal of the structures was in no way contingent on the results...