Sabal Trail Transmission, LLC v. 19.775 Acres of Land in Osceola County Florida et al

Filing 40

ORDER granting 2 Motion for summary judgment; granting 3 Motion for Preliminary Injunction. Plaintiff shall post a proper security bond with the Clerk of this Court in the amount of $448,800.00. Signed by Judge Roy B. Dalton, Jr. on 6/3/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SABAL TRAIL TRANSMISSION, LLC,
Plaintiff,
Case No. 6:16-cv-474-Orl-41-KRS
v.
Tract Nos: HCL-FL-OS-020.000,
HCL-FL-OS-020.010

+/- 19.775 ACRES OF LAND IN
OSCEOLA COUNTY, FLORIDA;
B-K RANCH, L.C.; GERALD R.
McGRATTY, JR.; BEN BENHAM;
and UNKNOWN OWNERS, IF ANY,
Defendants.
____________________________________
ORDER

This cause is before the Court on the following matters:
(1)

Motion for Partial Summary Judgment Determining the Right to Condemn
Easements and Incorporated Memorandum of Law (Doc. 2), filed
March 18, 2016;

(2)

Plaintiff’s Motion for Preliminary Injunction for Immediate Possession and
Incorporated Memorandum of Law (Doc. 3), filed March 18, 2016; and

(3)

Stipulation for Immediate Possession (Doc. 32), filed May 5, 2016.
BACKGROUND

On February 2, 2016, the Federal Energy Regulatory Commission (“FERC”)
issued an order which, among other things, granted to Plaintiff Sabal Trail Transmission,
LLC (“Plaintiff”) a Certificate of Public Convenience and Necessity (“FERC Certificate”),
authorizing Plaintiff to construct and operate facilities for transporting natural gas in
interstate commerce—the Sabal Trail Project (“Project”). Pursuant to the Natural Gas

Act, 15 U.S.C. §§ 717–717z (“Gas Act”), and based on the FERC Certificate, Plaintiff
filed several land condemnation actions throughout the U.S. District Courts for the Middle
District of Florida (“M.D. Courts”) to acquire the easements necessary to complete the
Project. (Doc. 1.)
With its Complaint in this action against property located in Osceola County,
Florida, B-K Ranch, L.C. (“BKR”), Gerald R. McGratty, Jr., as receiver (“Receiver”), and
Ben Benham (“Benham”), Plaintiff also filed:
1.

description of the largest parcel of land at issue in this action
(Doc. 1-1 (“Parcel”));

2.

proposed “Grant of Easement” with easement drawings (Doc. 1-2
(“Subject Easements”));

3.

copy of the FERC Certificate (Doc. 1-4);

4.

copy of the Notice of Condemnation in accordance with the
requirements of Federal Rules of Civil Procedure 71.1(c)(4) and
71.1(d)(2) (Doc. 1-5 (“Condemnation Notice”));

5.

Motion for Partial Summary Judgment Determining the Right to
Condemn Easements and Incorporated Memorandum of Law
(Doc. 2 (“Rule 56 Motion”)); and

6.

Motion for Preliminary Injunction for Immediate Possession and
Incorporated Memorandum of Law (Doc. 3 (“Rule 65 Motion”)).

In support of the Rule 56 and Rule 65 Motions, Plaintiff also filed sworn
Declarations from the Project’s Right-of-Way Project Manager (Doc. 4), the Construction
Project Manager (Doc. 6), and the Project Director (Doc. 5). Finally, on May 20, 2016,
Plaintiff filed the Declaration of its counsel (Doc. 36), which set out appraised values for
the Parcels at issue in this action and in other actions pending in the M.D. Courts.
In accordance with Rule 71.1(d)(3)(B), Plaintiff served Benham by publication in
the Osceola News-Gazette. (See Docs. 33, 33-1.) “Service by publication is complete on

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the date of the last publication.” Fed. R. Civ. P. 71.1(d)(3)(B)(ii). Here, the last publication
date was May 5, 2016 (Doc. 22-1). 1 The Court directed Defendants to Answer the
Complaint and respond to the Rule 56 and Rule 65 Motions “[o]n or before May 17, 2016.”
(Doc. 18, p. 3.) In addition, the Court set a hearing in this action for 2:00 p.m. on May 23,
2016 (“Hearing”). (See id.) Benham did not attend the Hearing or otherwise appear in
this action. (See Doc. 37.) In contrast, BKR and Receiver jointly-filed a Stipulation for
Immediate Possession (Doc. 32), which confirms Plaintiff’s rights to condemn and
immediate possession (“Stipulation”).
Upon review, the Court agrees with the other judges in the M.D. Courts that
Plaintiff’s Rule 56 and Rule 65 Motions are due to be granted. See Sabal Trail
Transmission, LLC v. +/- 0.9 Acres of Land in Citrus Cnty., Fla., Case No. 5:16-cv-196Oc-30-PRL, 2016 WL 2997669, at *1 (M.D. Fla. May, 25, 2016); Sabal Trail
Transmission, LLC, v. +/- 9.669 Acres of Land in Polk Cnty., Fla., Case No. 8:16-cv-640T-33-EAP, 2016 WL 2745082, at *1 (M.D. Fla. May 11, 2016).
CONCLUSION
Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED:
1.

Plaintiff’s Motion for Partial Summary Judgment (Doc. 2) is GRANTED in
that the Court finds that Plaintiff has the right to condemn the Subject
Easements.

1

Defendants who have “an objection or defense to the taking must serve an
answer within 21 days after being served.” Fed. R. Civ. P. 71(e)(2) (emphasis added).
Objections and defenses that are not set forth in an answer are waived. See Fed. R.
Civ. P. 71.1(e)(3).

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2.

Plaintiff’s Motion for Preliminary Injunction and Immediate Possession
(Doc. 3) is GRANTED.

3.

Upon Plaintiff posting a proper security bond with the Clerk of this Court in
the amount of $448,800.00, the following shall occur:
a.

Plaintiff shall have immediate access to, and possession of,
the

Subject

Easements

described

in

the

Notice

of

Condemnation (Doc. 1-5) and incorporated herein; and
b.

Plaintiff may immediately begin pre-installation activities so
that

construction-related

activities

can

commence

by

June 21, 2016, for the purposes of constructing the Project.
4.

All pre-installation and construction-related activities shall be consistent
with the FERC Certificate and all other applicable regulatory permits.

DONE AND ORDERED in Chambers in Orlando, Florida, on June 3, 2016.

Copies:
Counsel of Record

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Unrepresented Parties
U.S. District Judge Carlos E. Mendoza
U.S. Magistrate Judge Karla R. Spaulding

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