Gulfstream Nat. Gas Sys. v. Le Redd

• Decision Date: 28 August 2019
• Docket Number: CA 19-0270-KD-MU
• Parties: GULFSTREAM NATURAL GAS SYSTEM, LLC, Plaintiff, v. TODD LE REDD and BETHANN REDD, Defendants.
• Court: U.S. District Court — Southern District of Alabama

GULFSTREAM NATURAL GAS SYSTEM, LLC, Plaintiff, v. TODD LE REDD and BETHANN REDD, Defendants.

CA 19-0270-KD-MU

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

August 28, 2019

REPORT AND RECOMMENDATION

This matter is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and S.D. Ala. GenLR 72(a)(2)(S), on the notice of removal (Doc. 1), Plaintiff's motion to remand (Doc. 6; see also Doc. 7 (brief in support of remand with attachments)), the response in opposition, with attachments, filed by the Redds (Doc. 13), and Plaintiff's reply (Doc. 15). Upon consideration of these pleadings, the Magistrate Judge recommends that the Court GRANT Plaintiff's motion to remand (Doc. 6).

FINDINGS OF FACT

Gulfstream Natural Gas System, LLC ("Gulfstream) filed an application for an order permitting entry on real property, pursuant to Ala.Code § 18-1A-51, against Defendants Todd Le Redd and Beth Ann Redd in the Circuit Court of Mobile County, Alabama on May 15, 2019. (Doc. 1, Exhibit A, Application for Order Permitting Entry).¹ The applicationsought entry upon real property identified by the Mobile County Revenue Commissioner as parcel numbers 47-01-40-0-004-010.XXX and 47-01-40-0-004-011.XXX, as more fully described in the attached statutory warranty deed,² "to determine if the Property is suitable and within the power of the Plaintiff to take for public use in the construction and/or expansion of [its natural gas] Pipeline." (Id. at ¶¶ 2, 7 & 11.) In support of its request for an order permitting entry on the Redds' property Gulfstream averred the following:

12. Plaintiff avers that depending on the results of the suitability studies, said construction and/or expansion of the Pipeline or its app[urtenances] could take place upon the Property and/or the Property will be used for temporary workspace in the construction and/or expansion of the Pipeline.

13. Plaintiff avers that the suitability studies would include, but are not limited to, surveys, examinations, photographs, soundings, borings and samplings.

14. Plaintiff avers that said suitability studies will possibly be determinative of what route the Pipeline will take and are needed for Plaintiff to obtain the Certificate from the FERC.

15. Plaintiff avers that it has taken reasonable efforts to obtain lawful entry under Ala.Code § 18-1A-50 (1975), as amended, and that such efforts have been denied by the Defendants.³

16. Plaintiff avers that in view of the Defendants' denial of lawful entry, any reasonable efforts made by Plaintiff to obtain lawful entry would be futile absent an Order Permitting Entry from the Court.

17. Plaintiff avers that it submits to the Court's preliminary assessment of the probable amount that will fairly compensate the Defendants for damages, for physical injury to the Property, and for substantial interference with the Property's possession or use, found likely to be caused by the entry and activities authorized by the Order Permitting Entry.

18. Plaintiff avers that it will obtain a bond for double the amount of such preliminary assessment made by the Court with good and sufficient sureties to pay such damages as the Defendants may sustain.

(Doc. 1, Exhibit A, Application for Order Permitting Entry, at ¶¶ 12-18). Finally, in the Application, Gulfstream demanded judgment against the Redds as follows: "(i) for an order permitting Plaintiff entry upon the Property, located in Coden, Mobile County, Alabama, for the purposes of conducting suitability studies to determine if the Property is suitable and within the power of the Plaintiff to take for public use; (ii) for an order describing the purpose of the entry and setting forth the nature and scope of activities the Court determines are reasonable, necessary and authorized to be made upon the Property; (iii) for an order assessing the probable amount that will fairly compensate the Defendants and setting a bond in an amount double the amount of such preliminary assessment; (iv) for an award of attorney fees, if permitted by law; (v) for the reasonable costs and disbursements of this action; and (vi) for such other and further relief as this Court may deem just and proper." (Id. at 5-6).

On or about June 7, 2019, Todd Le Redd and Beth Ann Redd filed a responsive affidavit in the Circuit Court Mobile County, Alabama (Doc. 1, Exhibit A, AFFIDAVIT)⁴ and,that same day, a notice of removal in this Court (Doc. 1). In the notice of removal, the Redds invoke 28 U.S.C. §§ 1331, 1332(a)(1), 1441 and 1446 (Doc. 1, at 1), and specifically address jurisdiction under §§ 1331 and 1332(a)(1), as follows:

DIVERSITY (SIC) JURISDICTION UNDER 28 U.S.C. § 1331

7. Defendants would like to have this moved because of the Constitutionality of this civil action where the Plaintiff is using Section 2(a) of the Natural Gas Act, 15 U.S.C. Sec. 717(a)(6).

DIVERSITY JURISDICITON UNDER 28 U.S.C. § 1332(a)

8. This court has jurisdiction over this matter under Diversity 28 U.S.C. § 1332(a) because of complete diversity of citizenship between Plaintiff and Defendants and the amount in controversy exceeds $75,000.

9. Plaintiff is a corporation and legal entity organized and existing under the laws of the State of Delaware and principal place of business located at 9 Greenway Plaza, Houston, Texas 77046.

10. Defendants are from the state of Alabama, domiciled at property in question.

(Id. at ¶¶ 7-10). This is the sum total of the Redds' jurisdictional analysis and none of the documents attached to the notice of removal supplies any reasonable, non-conclusory indicia of value of the subject property, save for the Statutory Warranty Deed, which establishes that the Defendants purchased both parcels of land on January 24, 2013 for $12,500.00 (Doc. 1, Exhibit A, STATUTORY WARRANTY DEED), an amount the Redds "doubled-down" on, under penalty of perjury, in their IFP motion (alsofiled on June 7, 2019) when they estimated the value of both parcels of land to be $12,500.00 (Doc. 2, at 2).⁵

Gulfstream filed its motion to remand on July 3, 2019. (Doc. 7). As an initial matter, Plaintiff contends that this Court lacks subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 because it (Plaintiff) has not filed an eminent domain action pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h) but, instead, it simply filed an application for order permitting entry in accordance with Alabama law, specifically Ala. Code § 18-1A-51. (See id. at 5-7.) In addition, Gulfstream contends that this Court lacks subject-matter jurisdiction under 28 U.S.C. § 1332(a) both because the issue of removal of this matter is not ripe for consideration by the Court (id. at 7-11) and because the Redds have not demonstrated by a preponderance of the evidence that the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs (id. at 11-14).

The Defendants' response in opposition reads almost in its entirety as follows:

Plaintiffs are stating in the Motion to Remand that Defendants['] parcels of land do not exceed the $75,000 as stated in 28 U.S. Code § 1332(a). The Plaintiff states that the county tax appraisal value and the vacant land appraisal both are less than this amount. Plaintiff[] ha[s] never sent (i) a Notice of Intent to Appraise[,] (ii) physically appraised the property[,] 12 U.S. Code § 3356(b), (iii) given proper value with Defendants having (a) more than 400 linear feet of ocean view that will never be obstructed because of the public park (and it[]s amenities for permanent public water access) being directly in front of Defendants['] property, (b) more than 1000 trees valued at $200 or more each, (c) a live oak that is deemed priceless, (d) a fresh water spring[,] (e) palm trees that have been on the property since the 1950s, (iv) the parcels of property they used for appraisal were over two years old and not of ocean view[,] (v) no value has been given or even discussed about relocation costs, as have been with other landowners, (vi) replacement cost with the amenitiesthat are present within the parcels of property. Other items not included within Plaintiff[']s Motion to Remand are items such as business income loss from the campgrounds, the damages to the business from the loss of ability to continue the campground reservations and emotional stability of having a lifetime home for retirement. The Plaintiff is seeking to acquire the land for less than a fair price[.] Defendants are wishing to have the courts note that Plaintiff[] ha[s] taken lands by condemnation and have not paid for it in some cases, or taken it before coming to an agreement and Defendants are wanting to protect their personal and business investment within this transaction.

Plaintiffs are not in compliance with 15 U.S. Code § 717f(h), never contacting with a contract to purchase or obtain property from Defendants. Defendants have remained open to contact with Plaintiff[], even when Plaintiff[] w[as] continually threatening eminent domain, rather than discussing a contract as Defendants requested. Contrary to the Plaintiff's assertion, the use and value of the property in question does amount to more than $3,000.

Defendants also plead with 28 U.S.C. § 1331 and 42 U.S.C. § 1983, giving the court jurisdiction over all civil actions with Constitutional laws, where one question in this action is the fifth amendment.

Plaintiffs have not made a fair and reasonable effort to obtain the parcels of property before starting the court action to obtain the parcels of property, unlike 49 CFR § 24.102 states. Defendants are looking for just compensation and payment prior to Plaintiff[] taking possession as in 49 CFR § 24.102(j) since there is evidence that Plaintiff[] ha[s] not paid in some condemnation actions prior.

The Defendants are not denying the inevitability of the pipeline gaining the eminent domain and condemnation, just as the defendants in Columbia Gas Transmission, LLC v. 14.96 Acres, CIVIL

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