WEST v. Louisville Gas & Elec. Co.
| Decision Date | 04 April 2019 |
| Docket Number | No. 18-1906,18-1906 |
| Parties | Stephen R. WEST, Plaintiff-Appellant, v. LOUISVILLE GAS AND ELECTRIC COMPANY, Defendant, and Charter Communications, Inc., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John D. Cox, Attorney, LYNCH, COX, GILMAN & GOODMAN, PSC, Louisville, KY, for Plaintiff-Appellant.
Paul Anthony Werner, III, Attorney, SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP, Washington, DC, for Defendants-Appellees.
John W. Bilby, Attorney, Amy L. Miles, Attorney, STOLL KEENON OGDEN PLLC, Louisville, KY, for Defendant.
Before Rovner, Hamilton, and Brennan, Circuit Judges.
In this diversity action, plaintiff Stephen West contends that the addition of a fiber optic communications wire to a utilities transmission tower on his property exceeds the scope of the utilities easement that authorized the tower. West sued both Charter Communications, Inc. ("Charter"), whose subsidiary installed the wire, and Louisville Gas and Electric Company ("Louisville"), which owns the tower and is a party to the easement. The district court dismissed the claims against Charter, concluding that the addition of Charter’s communications wire to the tower is compatible with the scope and purpose of the easement and consequently does not violate the terms of the easement agreement nor does it amount to an unconstitutional taking of West’s property. West v. Louisville Gas & Elec. Co. , 2018 WL 321686 (S.D. Ind. Jan. 8, 2018). Wishing to appeal that ruling, West entered into an agreement with Louisville providing that he would voluntarily dismiss his claims against Louisville, while reserving the right to revive them in the event we reversed the district court’s dismissal of the claims against Charter. West then filed a notice of appeal pursuant to 28 U.S.C. § 1291. Because the conditional dismissal of West’s claims against Louisville renders the judgment non-final, we dismiss the appeal for want of jurisdiction.
West inherited a small plot of land from his parents in Jeffersonville, Indiana that abuts the Ohio River, which demarcates the border between Indiana and Kentucky.1 A massive utility transmission tower some 248 feet tall sits on the property, carrying LG&E power lines that run between the two states. The tower and the power lines are authorized by a 1938 utility easement entered into by the predecessors of West (and his parents) and LG&E, as amended by a supplemental agreement in 1976. Broadly speaking, the easement grants to LG&E the perpetual right to install and maintain towers and wires "for the transmission, distribution and delivery of electrical energy to the Grantee [LG&E] and other persons and concerns and to the public in general for light, heat, power, telephone and/or other purposes in, upon, along and over the real estate of the Grantor [West] ...." R. 33-1 at 2. West’s parents rejected a further amendment to the deed of easement proposed by LG&E in 1990 which would have authorized LG&E to "upgrade and remove communications and telephone systems...." R. 33-4 at 2.
In 2000, LG&E entered into a contract with Insight Kentucky Partners II, LP ("Insight"), a subsidiary of Time Warner Cable, Inc. ("Time Warner"), granting Insight permission to run fiber optic cables across LG&E’s existing infrastructure. Insight proceeded to run a fiber optic cable carrying television and internet content and services across West’s property via the LG&E tower; Insight’s cable replaced an existing static wire on that tower. Time Warner, Insight’s parent corporation, was later acquired by Charter. We shall refer to Charter and its predecessors collectively as the Charter defendants.
In 2016, West filed suit against LG&E in state court, seeking a declaratory judgment that the easement did not authorize Insight’s fiber optic cable. West also asserted claims for breach of contract, trespass, and unjust enrichment. LG&E removed the case to federal court. After the district court denied LG&E’s motion to dismiss West’s claims, reasoning that there were factual questions as to the scope of LG&E’s rights under the easement, West v. Louisville Gas & Elec. Co. , 2016 WL 6395918, at *3 (S.D. Ind. Oct. 28, 2016), West amended his complaint to name Insight, Time Warner, and Charter as additional defendants and also to add new claims to the suit. The amended complaint asserted claims against both LG&E and the Charter defendants for declaratory judgment, trespass, unjust enrichment, as well as claims for (tortious) conversion and criminal trespass. LG&E alone was also named in a new claim for nuisance. LG&E filed a second, partial motion to dismiss aimed at the conversion and criminal trespass claims, but the district court denied that motion, concluding in view of the facts alleged that the complaint stated plausible claims for relief in these respects. West v. Louisville Gas & Elec. Co. , 2018 WL 321685, at *2–*4 (S.D. Ind. Jan. 8, 2018). LG&E subsequently filed a cross-claim for indemnification against the Charter defendants.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Charter defendants moved to dismiss all of West’s claims against them, arguing principally that because the easement over West’s property had already been dedicated for a utility use that is compatible with cable television transmission, the addition of Insight’s fiber optic wire was statutorily authorized by section 621(a)(2) of the Cable Communications Policy Act of 1984, 47 U.S.C. § 541(a)(2) (the "Cable Act").
The district court agreed with the Charter defendants and granted their motion to dismiss. 2018 WL 321686. The court determined that the easement across West’s property had been dedicated for utility use, id. at *5, and that the running of fiber optic cables across that easement for the purpose of providing paid television, internet, and communications services amounted to a permissible compatible use under the Cable Act, id. The court went on to conclude that the Cable Act did not impermissibly burden West’s property rights retroactively, nor did it constitute a constitutionally prohibited taking of his property. Id. at *5–*6. Because it found that Insight’s use of the easement over West’s property to be authorized, the court dismissed all claims against the Charter defendants. Id. at *6 That decision left LG&E as the sole remaining defendant on West’s claims.
West and LG&E subsequently filed a joint stipulation asking the court to dismiss the claims against LG&E and close the case, R. 88, but the district court denied that request, R. 91. Although the stipulation posited that West’s claims against LG&E were "moot" in view of the district court’s decision dismissing the claims against the Charter defendants, R. 88 at 2 ¶3, the district court rejected that assertion. The court reasoned that there was still a live controversy as to whether the easement itself permitted LG&E to install and maintain Insight’s fiber optic cable on LG&E’s infrastructure. R. 91 at 2–3. The court also noted that the stipulation was unclear as to whether the proposed dismissal of the claims against LG&E was to be with or without prejudice; but the court construed the stipulated dismissal to be without prejudice, which would permit West to revive these claims in the event the dismissal of the claims against the Charter defendants was reversed on appeal. R. 91 at 3. That, in turn, led the court to conclude that, notwithstanding the proposed dismissal of the claims against LG&E, a final judgment was not yet at hand. R. 91 at 3. The court indicated that the parties had three options open to them: (1) continue litigating the merits of West’s claims against LG&E to a final judgment; (2) stipulate to the dismissal of these claims with prejudice; or (3) seek a certification of a final judgment as to fewer than all parties pursuant to Federal Rule of Civil Procedure 54(b). R. 91 at 3–4.
Rather than pursuing any of these options, West and LG&E pursued a fourth option in the hope of creating a final judgment that would open the door to this appeal. The two parties entered into a tolling and standstill agreement which provided for the voluntary dismissal of West’s claims against LG&E for the duration of, and conditioned upon the outcome of, his appeal of the dismissal of the claims against the Charter defendants. App. R. 7-3 Ex. B. West and LG&E agreed that the statute of limitations as to any claims between them would be tolled for the duration of the agreement and that, in the event West prevailed in his appeal, LG&E would not object to the re-filing of his claims against LG&E nor assert any timeliness defenses to the claims. If, on the other hand, West did not prevail in the appeal, West agreed he would not re-file his pending claims against LG&E nor any other claims arising out of the same facts. By its terms, the agreement was to remain in effect until such time as the appeal was decided or West terminated the agreement on 14 days’ notice, at which point an action filed by either party would be deemed filed as of the date West’s suit was originally filed in 2016. App. R. 7-3. Pursuant to this agreement, West voluntarily dismissed all of his claims against LG&E by stipulation (signed by attorneys for West and LG&E) pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). R. 98.2 LG&E in turn voluntarily dismissed its cross-claim against the Charter defendants without prejudice pursuant to Rule 41(a)(1) ((a)(i). R. 95.
West then appealed to this court pursuant to section 1291. After a preliminary round of memoranda as to whether there was a final judgment establishing our appellate jurisdiction, we allowed the case to proceed to briefing and argument, while reserving judgment on the jurisdictional question.
As in every case, the first question we must resolve is our jurisdiction to entertain this appeal. Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210...
To continue reading
Request your trial
-
United States ex rel. CIMZNHCA, LLC v. UCB, Inc., No. 19-2273
...Jurisdiction: Appeal from the Denial of a Motion to Intervene We must decide our jurisdiction first. West v. Louisville Gas & Elec. Co. , 920 F.3d 499, 503 (7th Cir. 2019). Ordinarily we have appellate jurisdiction of the district courts’ final judgments under 28 U.S.C. § 1291 and a few cat......
-
Outley v. City of Chi.
...litigation on the merits ends and there is "nothing for the district court to do but execute the judgment," West v. Louisville Gas & Elec. Co. , 920 F.3d 499, 503 (7th Cir. 2019) —in other words, when "the district court has finished with the case," Chase Manhattan Mortg. Corp. v. Moore , 4......
-
City of Chi. v. Barr
...right to further pursue that claim in this action, and therefore the judgment is reviewable under § 1291. See West v. Louisville Gas & Elec. Co. , 920 F.3d 499, 506 (7th Cir. 2019).3 In the course of his argument that § 10102(a)(6) authorizes the imposition of the additional certification c......
-
City of Chi. v. Barr
...right to further pursue that claim in this action, and therefore the judgment is reviewable under § 1291. See West v. Louisville Gas & Elec. Co ., 920 F.3d 499, 506 (7th Cir. 2019).3 In the course of his argument that § 10102(a)(6) authorizes the imposition of the additional certification c......