SABAL TRAIL TRANSMISSION LLC v. REAL ESTATE et al

Filing 21

ORDER for status report from Plaintiff Sabal Trail Transmission, LLC. Status report is due by May 26, 2016. Ordered by US DISTRICT JUDGE CLAY D LAND on 05/20/2016. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
SABAL TRAIL TRANSMISSION, LLC,
Plaintiff,

*
* CASE NOS.
4:16-cv-00108
* 4:16-cv-00119
4:16-cv-00125
*

vs.
REAL ESTATE, et al.,
Defendants.

*

O R D E R
Plaintiff Sabal Trail Transmission, LLC seeks to condemn
easements across parcels of land in Georgia so that it can build
an interstate natural gas pipeline.

As discussed in more detail

below, it is not clear from the present record whether certain
Defendants in three of the condemnation actions have been served
with

notice

of

the

condemnation

proceeding

Federal Rule of Civil Procedure 71.1(d)(3).

as

required

by

Sabal Trail is

ordered to file a status report regarding the status of service
on these Defendants.

The status report is due by May 26, 2016.
DISCUSSION

Under Federal Rule of Civil Procedure 71.1(d)(3)(A), Sabal
Trail was required to make personal service of the notice of the
condemnation

action

on

defendants

States “whose address is known.”

who

reside

in

the

United

If the address of a defendant

is not known, service may be accomplished by publication.

Fed.

R.

Civ.

P.

publication
certificate
cannot

be

71.1(d)(3)(B).
only

when

stating

“A

defendant

the

plaintiff’s

the

attorney

served,

because

that

personally

may

be

served

by

files

a

attorney

believes
after

the

defendant

diligent

inquiry

within the state where the complaint is filed, the defendant’s
place of residence is still unknown or, if known, that it is
beyond the territorial limits of personal service.”
Civ.

P.

71.1(d)(3)(B)(i)

(emphasis

added).

Fed. R.

After

the

certificate of diligent inquiry is filed, service can be made by
publication “once a week for at least 3 successive weeks--in a
newspaper

published

located.”

Id.

in

the

county

where

the

property

is

Service by publication is complete on the date

of the last publication.

Fed. R. Civ. P. 71.1(d)(3)(B)(ii).

For most Defendants in these actions, Sabal Trail filed a
declaration of proof of service showing the date on which the
Defendant was personally served with a notice of condemnation
proceeding

as

required

by

Rule

71.1(d)(3)(A).

For

some

Defendants, Defendants filed a Notice of Diligent Search and of
Need to Serve by Publication, ran the required notice in the
appropriate

newspaper,

and

filed

a

certificate

of

service

stating that notice by publication was complete as required by
Rule 71.1(d)(3)(B).

This Order is concerned with the rest of

the Defendants—those who were not listed in a Notice of Diligent

2

Search and for whom the Court could not locate a declaration of
proof of service in the present record.
I.

4:16-cv-108 (Estate of Elijah Moore, et al.)
There are twenty-eight Defendants in this action.

Sabal

Trail filed declarations of proof of service for fourteen of
these Defendants.1

Sabal Trail filed a “Certificate of Diligent

Search and of Need to Serve by Publication” for eleven of the
Defendants and any unknown owners: Estate of Elijah Moore; Joe
Dean Wheeler; Ronald Wheeler; Myrtle McIntyre; Alvin C. Dent;
Lucious

Dent;

Martha

Moore

Hill;

Thelma

Moore; Hubert Moore; and Dorothy Moore.
Search, ECF No. 7 in 4:16-cv-108.

Dent

Morrison;

Cora

Certificate of Diligent

Sabal Trail also filed a

“Certificate of Service by Publication” stating the notice of
condemnation was published in The Camilla Enterprise on March
30, 2016, April 6, 2016, and April 13, 2016.

Certificate of

Service by Publication Ex. B, Publisher’s Affidavit, ECF No. 172 in 4:16-cv-108.

1

Alfonzo Wheeler (ECF Nos. 14-13 & 14-14 in 4:16-cv-108); Alonzo Hill,
Jr. (ECF Nos. 14-3 & 14-4 in 4:16-cv-108); Bettye Jean Wheeler (ECF
Nos. 14-11 & 14-12 in 4:16-cv-108); Beverly Davila (ECF Nos. 15-1 &
15-2 in 4:16-cv-108); Catherine B. Moore (ECF Nos. 14-5 & 14-6 in
4:16-cv-108); Ciscero Wheeler (ECF Nos. 15-3 & 15-4 in 4:16-cv-108);
Herman Leon Moore, Jr. (ECF Nos. 14-7 & 14-8 in 4:16-cv-108); Jerri
Lin Moore (ECF Nos. 14-9 & 14-10 in 4:16-cv-108); John Dean Wheeler
(ECF Nos. 15-5 & 15-6 in 4:16-cv-108); Lillian M. Williams (ECF Nos.
14-1 & 14-2 in 4:16-cv-108); Manuel Nenez (ECF Nos. 14-15 & 14-16 in
4:16-cv-108); Mitchell Electric Membership Corporation (ECF Nos. 14-17
& 14-18 in 4:16-cv-108); Nationwide Mutual Fire Insurance Co. (ECF
Nos. 12-3 & 14-19 in 4:16-cv-108); United States Of America (ECF Nos.
12-1 & 12-2 in 4:16-cv-108).

3

The

Court

could

not

locate

in

the

present

record

a

declaration of proof of service for three Defendants: Elijah N.
Wheeler, Johnnie Coleman Wheeler, and Terry Jerome Moore.

In a

footnote of its Certificate of Service by Publication, Sabal
Trail stated that it learned the addresses of Elijah N. Wheeler
and Johnnie Coleman Wheeler following the last publication of
the condemnation notice on April 13, 2016 and that Sabal Trail
mailed each of them a copy of the notice of condemnation and
other documents.
ECF No. 17.

Certificate of Service by Publication 1 n.1,

But neither Elijah N. Wheeler nor Johnnie Coleman

Wheeler is listed in the Certificate of Diligent Search (ECF No.
7 in 4:16-cv-108) or in the published notice of condemnation
action (ECF No. 17-1 in 4:16-cv-108), so it is not clear that
these

two

71.1(d)(3).

Defendants

have

been

properly

served

under

Rule

It is also not clear that Terry Jerome Moore has

been properly served.
II.

4:16-cv-119 (Estate of Richard & Bobbie Alston, et al.)
There are twenty-nine Defendants in this action.

Sabal

Trail filed declarations of proof of service for eighteen of
these Defendants.2

Sabal Trail filed a “Certificate of Diligent

2

Corrick Alston (ECF Nos. 12-15 & 14-3 in 4:16-cv-119); Day'Unna
Alston (ECF Nos. 12-13 & 12-14 in 4:16-cv-119); Dorothy Alston Coleman
(ECF Nos. 12-24 & 12-25 in 4:16-cv-119); Dorothy Louise Alston (ECF
Nos. 12-7 & 12-8 in 4:16-cv-119); Gabriel Johnson (ECF Nos. 12-30 &
12-31 in 4:16-cv-119); Jarrett Alston (ECF Nos. 14-1 & 14-2 in 4:16cv-119); King Alston (ECF Nos. 12-5 & 12-6 in 4:16-cv-119); Labreka
Morris (ECF Nos. 12-18 & 12-19 in 4:16-cv-119); La'Sherra Alston

4

Search and of Need to Serve by Publication” for eight of the
Defendants and any unknown owners: Estate of Richard Alston and
Bobbie Alston; Minnie Mitchell; Shirley Armstrong; John Alston;
Mary Alston; Valerie Alston; Marvin Alston; and Bernece Alston.
Certificate of Diligent Search, ECF No. 7 in 4:16-cv-119.
Trail

also

filed

a

“Certificate

of

Service

by

Sabal

Publication”

stating the notice of condemnation was published in The Dawson
News on March 24, 2016, March 31, 2016, and April 7, 2016.
Certificate

of

Service

by

Publication

Ex.

B,

Publisher’s

Affidavit, ECF No. 16-2 in 4:16-cv-119.
The

Court

declaration

of

could
proof

not
of

locate

service

in
for

the
three

present

record

Defendants:

a

April

Cannon a/k/a April Mobley, Tenesha Huckaby, and Barbara Alston
Sherman.
of

None of these Defendants is listed in the Certificate

Diligent

Search

(ECF

No.

7

in

4:16-cv-119)

or

in

the

published notice of condemnation action (ECF No. 16-1 in 4:16cv-119).

In summary, it is not clear that April Cannon a/k/a

April Mobley, Tenesha Huckaby, and Barbara Alston Sherman have
been properly served under Rule 71.1(d)(3).

Rogers (ECF Nos. 12-11 & 12-12 in 4:16-cv-119); Mae Ola Alston BargeRa'Oof (ECF Nos. 12-26 & 12-27 in 4:16-cv-119); Marvin Alston (ECF
Nos. 12-22 & 12-23 in 4:16-cv-119); Melvin Gene Alston (ECF Nos. 12-28
& 12-29 in 4:16-cv-119); Richard Lee Alston, Jr. (ECF Nos. 12-1 & 12-2
in 4:16-cv-119); Shabricca Jackson (ECF Nos. 12-20 & 12-21 in 4:16-cv119); Teresa Alston Harris (ECF Nos. 12-32 & 12-33 in 4:16-cv-119);
Vangela Hall (ECF Nos. 12-16 & 12-17 in 4:16-cv-119); Wanda Dodson
Alston (ECF Nos. 12-9 & 12-10 in 4:16-cv-119); Willie James Alston
(ECF Nos. 12-3 & 12-4 in 4:16-cv-119).

5

III. 4:16-cv-125 (Estate of Willie & Josephine Walker, et al.)
There

are

thirty-one

Defendants

in

this

action.

Sabal

Trail filed declarations of proof of service for seventeen of
these Defendants.3

Sabal Trail filed a “Certificate of Diligent

Search and of Need to Serve by Publication” for four of the
Defendants and any unknown owners: Estate of Willie C. Walker,
Jr.

and

Josephine

Steven Jones.
4:16-cv-125.

Walker;

Leon

Walker;

Tomekia

Zachary;

and

Certificate of Diligent Search, ECF No. 7 in
Sabal Trail also filed a “Certificate of Service

by Publication” stating the notice of condemnation was published
in

The Stewart Webster Journal Patriot Citizen

2016, March 31, 2016, and April 7, 2016.

on March 24,

Certificate of Service

by Publication Ex. B, Publisher’s Affidavit, ECF No. 22-2 in
4:16-cv-125.
The

Court

could

not

locate

in

the

present

record

a

declaration of proof of service for ten Defendants: Angel Silas,

3

Anthony Flannigan (ECF Nos. 14-19 & 14-20 in 4:16-cv-125); Arthur
Battle, Jr. (ECF Nos. 14-21 & 14-22 in 4:16-cv-125); Darnell Flannigan
(ECF Nos. 14-17 & 14-18 in 4:16-cv-125); Deborah Bolton (ECF Nos. 14-3
& 14-4 in 4:16-cv-125); Gregory Flannigan (ECF Nos. 14-13 & 14-14 in
4:16-cv-125); Jermaine Davis (ECF Nos. 14-29 & 14-30 in 4:16-cv-125);
Joseph Yancey (ECF Nos. 14-15 & 14-16 in 4:16-cv-125); Lee Owen
Walker, Jr. a/k/a Leon Owen Walker, Jr. (ECF Nos. 14-1 & 14-2 in 4:16cv-125); Malik Silas (ECF Nos. 48-1 in 4:16-cv-97 & 14-7 & 14-8 in
4:16-cv-125); Paul Walker (ECF No. 49-1 in 4:16-cv-97 & 14-27 & 14-28
in 4:16-cv-125); Regina Walker (ECF Nos. 14-5 & 14-6 in 4:16-cv-125);
Teressa W. Johnson (ECF Nos. 14-11 & 14-12 in 4:16-cv-125); Tommie
Walker, II (ECF Nos. 14-9 & 14-10 in 4:16-cv-125); Tommie Walker, III
(ECF Nos. 17-1 & 17-2 in 4:16-cv-125); Tony Walker (ECF Nos. 50-1 in
4:16-cv-97 & 14-23 & 14-24 in 4:16-cv-125; Travis Walker (ECF No. 51-1
in 4:16-cv-97 & 14-25 & 14-26 in 4:16-cv-125); W.C., a Minor (ECF No.
52-1 in 4:16-cv-97).

6

Bryan

Battle,

Candace

Flannigan,

Iris

Davis,

Kelvin

Battle,

Michael Silas, Sebrina Davis, Senoia Davis, Sherrice Flannigan,
and Tanesha Battle.

None of these Defendants is listed in the

Certificate of Diligent Search (ECF No. 7 in 4:16-cv-125) or in
the published notice of condemnation action (ECF No. 22-1 in
4:16-cv-125).

In

summary,

it

is

not

clear

that

these

ten

Defendants have been properly served under Rule 71.1(d)(3).
CONCLUSION
By May 26, 2016, Sabal Trail shall file a status report
regarding the status of service on the following Defendants:
Elijah N. Wheeler (4:16-cv-00108)
Johnnie Coleman Wheeler (4:16-cv-00108)
Terry Jerome Moore (4:16-cv-00108)
April Cannon a/k/a April Mobley (4:16-cv-00119)
Barbara Alston Sherman (4:16-cv-00119)
Tenesha Huckaby (4:16-cv-00119)
Angel Silas (4:16-cv-00125)
Bryan Battle (4:16-cv-00125)
Candace Flannigan (4:16-cv-00125)
Iris Davis (4:16-cv-00125)
Kelvin Battle (4:16-cv-00125)
Michael Silas (4:16-cv-00125)
Sebrina Davis (4:16-cv-00125)
Senoia Davis (4:16-cv-00125)
Sherrice Flannigan (4:16-cv-00125)
Tanesha Battle (4:16-cv-00125)

IT IS SO ORDERED, this 20th day of May, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

7