Panhandle Eastern Pipe Line Company LP v. Gray et al
Filing
74
ORDER & OPINION entered by Judge Joe Billy McDade on 09/11/2013. IT IS THEREFORE ORDERED: Plaintiff's Motions for Summary Judgment as to Defendants Gene Bowers and Virginia Gillette 37 , Defendants Harry Gray and Shirley Hadley 38 , and Defend ant William Nichoalds 39 are DENIED. Plaintiff's Motions for Default Judgment as to Defendant Luke Matarelli 65 and Defendants Clyde I. Petty and Karen L. Petty 66 , are TAKEN UNDER ADVISEMENT. These Motions are SET for hearing on October 2 3, 2013, at 2:00 P.M. in Courtroom D. Plaintiff SHALL file a brief within fourteen days of the date of this Order if it believes it can somehow maintain a claim against Edith Nichoalds. Otherwise, all claims nominally against her will be dismissed.This matter is REFERRED BACK to Magistrate Judge Cudmore for further pretrial proceedings. See Full Written Order.(JS, ilcd)
E-FILED
Wednesday, 11 September, 2013 08:19:40 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
PANHANDLE EASTERN PIPE LINE
COMPANY, L.P.,
Plaintiff,
v.
HARRY GRAY, SHIRLEY HADLEY,
EDITH NICHOALDS, WILLIAM
NICHOALDS, LUKE R. MATARELLI,
GENE R. BOWERS, VIRGINIA S.
GILLETT, KAREN L. PETTY, and
CLYDE I. PETTY,
Defendants.
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Case No. 11-cv-1333
ORDER & OPINION
Before the Court are Plaintiff’s Motions for Summary Judgment as to
Defendants Gene Bowers and Virginia Gillette (Doc. 37), Defendants Harry Gray
and Shirley Hadley (Doc. 38), and Defendants William Nichoalds and Edith
Nichoalds1 (Doc. 39). These Motions have been fully briefed. Also before the Court
are a Motion for Default Judgment as to Defendant Luke Matarelli (Doc. 65), and a
Edith Nichoalds apparently passed away in 2007. Plaintiff does not dispute this
fact, (Doc. 73 at 2), but continues to refer to both Mr. and Mrs. Nichoalds in its
Motion “because both remain named defendants in this lawsuit.” (Doc. 39 at 1 n.1).
However, the Court will not enter judgment against someone who is no longer
living, and if she was deceased before the litigation began, she could not possibly
have been a proper party at any time during this litigation. See Mizukami v. Buras,
419 F.2d 1319, 1320 (5th Cir. 1969). Thus, William Nichoalds is the only defendant
subject to this Motion. If Plaintiff discovers other individuals have an interest in the
property, it must take appropriate steps to bring those individuals before the Court.
Further, the Court will dismiss all claims nominally against Edith Nichoalds unless
Plaintiff files a brief within fourteen days of the date of this Order opposing such
action.
1
Motion for Default Judgment as to Defendants Clyde I. Petty and Karen L. Petty
(Doc. 66). Plaintiff seeks an entry of default judgment and a hearing on appropriate
relief as to these Defendants. In all of the pending Motions, Plaintiff seeks a
judgment for injunctive relief, allowing it to clear its rights-of-way on Defendants’
properties. For the reasons stated below, Plaintiff’s Motions for Summary Judgment
are denied, and the Motions for Default Judgment are taken under advisement
until the hearing to determine the appropriate relief is held.
SUMMARY JUDGMENT MOTIONS2
I. Factual Background3
Plaintiff is a natural gas transportation company that owns and maintains a
widespread natural gas pipeline system throughout the United States. The system
includes a pipeline Plaintiff calls the Canton 100 Line, which runs under or near
Defendants’ properties. Defendants are all residents of K-Mar Hills Subdivision, a
neighborhood in Peoria County, Illinois. In the First Amended Complaint, Plaintiff
seeks to enjoin Defendants from interfering with Plaintiff’s plans to access and clear
portions of land pursuant to the easement to which Defendants’ properties are
subject. (Doc. 22).
Though separate Motions, the legal issues and facts alleged in each Motion for
Summary Judgment overlap substantially. Thus, the Court considers them
together, and will indicate any differences in the analysis.
2
Unless otherwise indicated, these background facts reflect the Court’s
determination of the undisputed facts, and are drawn from the Amended
Complaint, Plaintiff’s Motions for Summary Judgment, Defendants’ Responses, and
Plaintiff’s Replies. All genuine disputes and reasonable inferences are taken in
Defendants’ favor, as noted below. This section relates specifically to the
Defendants against whom Plaintiff seeks summary judgment. Because of the
different procedural posture, the Default Judgment Motions will be addressed
below, separately.
3
2
Defendants Gene Bowers and Virginia Gillette (“Bowers Defendants”) own
real estate located at 7570 Lancaster Road, Peoria, Illinois. Defendants Harry Gray
and Shirley Hadley (“Gray Defendants”) own property located at 7008 West East
Branch Drive, Bartonville, Illinois. Defendant William Nichoalds owns real estate
located at 7308 West East Branch Drive, Bartonville, Illinois.
Each of these properties was apparently once part of the same parcel of land,
owned by Joseph and Bessie Shoup. (See Docs. 37-1 at 8-9, 38-1 at 8-9, 39-1 at 8-9).4
The Shoups granted to Central Pipe Line Company an easement evidenced by a
document entitled “Agreement for Right-of-Way.”5 (Doc. 37-1 at 8). The document
was executed on October 21, 1933, and was properly recorded. It grants to Central
Pipe Line Company, and thereby to Plaintiff as a successor in interest6 to the
original easement holder, “the right to lay, maintain, alter, repair, replace, operate
and remove at any time hereafter a pipe line for the transportation of natural gas
. . . with the right of ingress and egress to and from the same on, over and through”
the described property, which includes what is now Defendants’ properties. (Doc.
Except for what is particular to the individual properties, the information and
arguments contained in the three Motions and supporting materials are virtually
identical, including identical copies of the operative easement. Thus, the Court cites
only the first-filed Motion (Docs. 37 and 37-1) where appropriate as a representative
example of the same or similar material. Typically the content is on the same page
in each Motion.
4
Under Illinois law, “a right of way is an easement.” Kurz v. Blume, 95 N.E.2d 338,
339 (Ill. 1950). The Court will primarily use the synonymous and more familiar
term “easement” throughout this Order.
5
Though no Defendant disputed this fact, the Court notes that the assignment
between Plaintiff and Illinois Natural Gas Company is attached to the Motions,
(E.g., Doc. 37-1 at 10-21), but there is no indication of how Illinois Natural Gas
Company acquired any interest from Central Pipe Line Company. The Court
assumes this is simply oversight, but alerts the parties to the potential issue.
6
3
37-1 at 8). There is no description of a specific easement width or exact location of
where the pipeline was to be placed in the grant. Defendants acquired their
properties subject to this easement.
Beginning on February 28, 2011, Plaintiff notified Defendants of its general
plans to begin clearing “trees, shrubs and other obstructions” pursuant to its
easement across Defendants’ properties. (Doc. 37-1 at 23). Though not specified in
the initial communications, Plaintiff’s plan for clearing its easement was to include
the removal of a garage, a shed, and two trees from the Bowers Defendants’
property, (Doc. 37 at 2), three trees, a fence, and a carport from the Gray
Defendants’ property, (Doc. 38 at 2), and a concrete pad, hot tub, deck, and at least
one tree and other brush from Defendant Nichoalds’s property (Doc. 39 at 2).
The two trees on the Bowers Defendants’ property are each located three feet
from the approximate pipeline location. (Doc. 37-1 at 30, 32). The shed sits
approximately nineteen feet from the pipeline and the garage is approximately
sixteen feet from the center of the pipeline. (Doc. 37-1 at 26, 28). The Bowers
Defendants do not object to the removal of the trees or other vegetation, but contest
the removal of the shed and garage. (Doc. 64 at 1). On the Gray Defendants’
property, the three trees are located twenty-three feet, twelve feet, and twenty feet
seven inches from the approximate location of the pipeline, and the carport is
eighteen feet from the center of the pipeline. (Doc. 38-1 at 31, 33). Nothing in the
record shows how far the fence is from the pipeline. Finally, on Defendant
Nichoalds’s property, a tree sits eight feet from the pipeline, a concrete pad is six
4
feet from the pipeline, the hot tub sitting on it is six feet six inches from the
pipeline, and the deck is seven feet from the center of the pipeline. (Doc. 39-1 at 29).
II. Legal Standards
A. Summary Judgment
Summary judgment shall be granted where “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). In ruling on a motion for summary
judgment, the Court must view the evidence in the light most favorable to the nonmoving party. SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365,
368 (7th Cir. 2009). All inferences drawn from the facts must be construed in favor
of the non-movant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011).
To survive summary judgment, the non-movant must “present enough
information to alert the [court] that there exist[s] a genuine issue of material fact
and to present the legal theories upon which it [relies].” United States v. Rode Corp.,
996 F.2d 174, 178 (7th Cir. 1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). If the evidence on record could not lead a reasonable jury to find for the
non-movant, then no genuine issue of material fact exists and the movant is entitled
to judgment as a matter of law. See McClendon v. Ind. Sugars, Inc., 108 F.3d 789,
796 (7th Cir. 1997). At the summary judgment stage, the court may not resolve
issues of fact; disputed material facts must be left for resolution at trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986).
5
B. Permanent Injunction
Before a federal court will grant a permanent injunction, a plaintiff must
demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to
compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a
permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Further, where an
injunction is requested in a motion for summary judgment, the plaintiff must show
success on the merits. See Collins v. Hamilton, 349 F.3d 371, 374 (7th Cir. 2003).
III. Applicability of Federal Law
To clear up any confusion at the outset, the Court here briefly addresses two
of Plaintiff’s apparent mistakes in the applicability of federal law to this state
property law claim. First, among other deficiencies in the First Amended
Complaint, Plaintiff asserts that this Court has federal question jurisdiction
pursuant to 28 U.S.C. § 1331, but nothing in the pleading supports such a
conclusion. As noted in a related case with substantially similar pleadings, Plaintiff
does not bring a claim under a federal statute, and simply referencing a federal
statute that is related to the subject of litigation does not create a federal question.
That is Jurisdiction 101. Fortunately for Plaintiff, the parties are diverse, and the
Court accepts the assertion that the amount in controversy exceeds $75,000, thus
allowing for diversity jurisdiction in this Court.
Second, Plaintiff makes a confusing and misleading argument about
preemption in its Motions for Summary Judgment. (E.g., Doc. 37 at 9-10). Plaintiff
6
explains that federal law preempts state safety standards for pipelines such as
theirs, which is unremarkable. (Doc. 37 at 4, 9). But they also cite a Michigan state
court case for the proposition that “[f]ederal law, not Defendants, defines and
controls Panhandle’s obligation to inspect and maintain its pipelines,” and seems to
imply that the federal regulations give Plaintiff a free pass to act in whatever way
they deem necessary to comply with such regulations, essentially preempting the
easement. (Doc. 37 at 9 (citing Panhandle E. Pipe Line Co. v. Musselman, 668
N.W.2d 418, 421 (Mich. Ct. App. 2003))). The cited case states that “[a]lthough
federal law does not grant plaintiff any more rights over the property than does the
grant of the right-of-way itself, federal law defines plaintiff's duties with regard to
the maintenance of its pipelines and, thus, addresses what is required of plaintiff
with regard to the right-of-way.” Musselman, 688 N.W.2d at 421. This seems an
accurate analysis of the impact of federal law in this area, but of course does not
mean property law is preempted. Rather, the federal regulations to which Plaintiff
is subject inform the interpretation of the granted easement, which provides for
access to maintain and inspect the pipelines. Naturally, federal regulations would
provide strong evidence of more precisely what the easement rights, including
access to inspect and maintain, would entail, but Plaintiff points to no federal law
that preempts state property law.
IV. Discussion
Under Illinois law, an easement is a “right or a privilege in the real estate of
another.” Beloit Foundry Co. v. Ryan, 192 N.E.2d 384, 390 (Ill. 1963). The owner of
an easement is entitled to “necessary use,” which is “such use as is reasonably
7
necessary for the full enjoyment of the premises.” Erday’s Clothiers, Inc. v.
Spentzos, 592 N.E.2d 615, 621 (Ill. App. Ct. 1992). The owner of the property subject
to the easement, referred to as the servient estate, is still entitled to use the
property as he sees fit, but may not interfere with the easement owner’s proper
enjoyment of the easement. Id.
The language of the instrument creating the easement should be construed
“in accordance with the intention of the parties.” Koplin v. Hinsdale Hosp., 564
N.E.2d 1347, 1354 (Ill. App. Ct. 1990). The owner of an easement cannot “make
material alterations in the character of the easement, even though it would be more
to his convenience to do so, if the alteration places a greater burden upon the
servient estate.” Flower v. Valentine, 482 N.E.2d 682, 687 (Ill. App. Ct. 1985). When
the width and location of the easement is not defined, “the width is such as is
reasonably convenient and necessary for the purposes for which the way was
created.” Vallas v. Johnson, 390 N.E.2d 939, 941 (Ill. App. Ct. 1979) (internal
quotation marks omitted). What is reasonably necessary is typically evidenced by
“the extent of actual use.” Id. at 942; see also Peters v. Milk Grove Special Drainage
Dist. No. 1 of Iroquois Cnty., 610 N.E.2d 1385, 1388 (Ill. App. Ct. 1993).
In the present Motions, Plaintiff alleges it is “entitled to unobstructed access
and entry onto Defendants’ Property” in order to clear obstructions within fifty feet
of the pipeline and maintain its easement. (Doc. 37 at 10). Plaintiff argues that it
meets the standard for judgment as a matter of law, and is entitled to a permanent
injunction allowing it to remove the respective alleged obstructions from each of
Defendants’ properties. Based upon the record before it, the Court cannot determine
8
that there are no genuine disputes of material fact and Plaintiff has not shown
success on the merits; thus, summary judgment is inappropriate. There is no
dispute that Plaintiff has an easement and has the right to maintain its pipeline,
but Plaintiff has failed to prove there is no dispute of fact as to the width of the
easements and whether the alleged obstructions interfere with Plaintiff’s intended
use of its easement. Thus, the Court cannot issue an injunction based on the record
before it, at least not to the extent Plaintiff requests.
A. Sources of Facts
The filings before the Court raise two preliminary questions of what evidence
the parties can use at this stage of litigation to support or oppose summary
judgment. First, Defendants all seized upon Plaintiff’s citation to its Verified
Application for Preliminary and Permanent Injunction (“Verified Complaint”) in its
statements of facts, and claim this was improper. Though correct that the Verified
Complaint is not the operative pleading before this Court, having been replaced by
the Amended Complaint that was filed subsequently, it is still a signed statement of
facts, which may be used by a party during summary judgment and is treated
essentially as an affidavit to the extent it is based on personal knowledge. See Ford
v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996); Boxdorfer v. Thrivent Fin. for
Lutherans, No. 1:09-cv-0109, 2009 WL 2448459, at *2 n.2 (S.D. Ind. Aug. 10, 2009).
Thus, Plaintiff properly cited its Verified Complaint as a source of alleged facts in
the record.
Second, Plaintiff argues that the facts recited, particularly in the Gray
Defendants’ Response and Defendant Nichoalds’s Response, cannot be considered
9
by the Court because they are self-serving affidavits without any foundation. (See
Doc. 67 at 1-2; Doc. 68 at 1-2). The case Plaintiff cites is an unpublished district
court decision, which in turn cites Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293 (7th
Cir. 1993). However, Slowiak was overruled on this point by a recent Seventh
Circuit decision, Hill v. Tangherlini, No. 12-3447, --- F.3d ----, 2013 WL 3942935, at
*2 n.1 (7th Cir. Aug. 1, 2013). Overruling numerous cases, including Slowiak, the
court stated:
Deposition testimony, affidavits, responses to interrogatories, and
other written statements by their nature are self-serving. Payne v.
Pauley, 337 F.3d 767, 771 (7th Cir. 2003). As we have repeatedly
emphasized over the past decade, the term “selfserving” must not be
used to denigrate perfectly admissible evidence through which a party
tries to present its side of the story at summary judgment.
Id. at *2. Accordingly, Plaintiff’s claim that the affidavits should be rejected because
they are self-serving is unpersuasive. They are naturally self-serving because it is
Defendants telling their side of the story; that does not make them invalid.
Plaintiff also claims the evidence is inadmissible because there is no
foundation. However, the foundation is that the affiants, Defendant Gray and
Defendant Nichoalds, were testifying as to what they personally witnessed or
experienced. Perhaps Plaintiff would attempt to show the testimony is not credible
at trial, but that is not a matter to be resolved on summary judgment. Thus, the
evidence Defendants point to in their Responses is properly before the Court and
can be used to demonstrate genuine disputes of material fact.
B. Width of Easements
One of the primary sticking points in the way of summary judgment is the
disputed facts and minimal evidence relating to the width of the easement. Plaintiff
10
claims it is entitled to an easement fifty feet wide. As noted above, when the
dimensions of an easement are not defined, the width “is such as is reasonably
convenient and necessary” for the original purpose of the easement. Vallas, 390
N.E.2d at 941. In the present case, the easements have no defined width, so their
width must be determined by other means, such as evidence of Plaintiff’s prior
actual use. See Peters, 610 N.E.2d at 1389. Because there are factual disputes
relating to the width of the easements,7 Plaintiff’s Motions for Summary Judgment
are denied.
Defendants do not dispute that Plaintiff has an easement and that pursuant
to the easement there is a pipeline on or near their property. Though some
Defendants note Plaintiff has not proven the precise location of the pipelines, none
point to any contradictory evidence or allege a substantial dispute. Rather, the
primary dispute is over how much space Plaintiff needs to carry out the purpose of
the easement, particularly to maintain, repair, or replace the pipeline. Plaintiff
contends that a fifty-foot-wide easement is necessary “considering the size of the
equipment required to repair and replace the pipeline.” (Doc. 37 at 6). Plaintiff
provides no specific information regarding the size of this equipment or the amount
of space required for work on the pipeline, and the supporting affidavit only states
that
such
work
requires
“[l]arge
pieces
of
mechanical
equipment”
and
Plaintiff appropriately takes issue with the failure of the Gray Defendants and
Defendant Nichoalds to specifically cite the evidence that shows the basis for
disputing Plaintiff’s material facts. The Court emphasizes to all parties that they
are expected to be familiar with and comply with the local rules. However, because
the Court was able to find the basis for the genuine disputes in the affidavits
submitted, the Court takes them into consideration. Further, even aside from these
disputes, Plaintiff acknowledges in its Supplemental Replies (Docs. 72, 73) that
there are additional disputed material facts.
7
11
“[c]onsiderable space.” (Doc. 37-1 at 5). Thus, Plaintiff has failed to establish that
the easement must be defined as fifty feet wide.
Additionally, Plaintiff has pointed to no evidence indicating the extent of its
prior actual use. Defendants, on the other hand, have put forth facts tending to
indicate Plaintiff’s prior use of the easements has been much less significant than
what it now seeks to do. As explained in more detail below, Defendants assert
Plaintiff’s previous inspection or clearing operations covered a strip of land smaller
than fifty feet. Some of the Defendants even assert that Plaintiff approved some of
the structures at issue, which are within twenty-five feet of the pipeline. As even
the photographs Plaintiff submitted show, many of the trees it seeks to remove look
mature, indicating they have been growing in their location for a long time, which is
inconsistent with past use of a fifty-foot strip. Because Plaintiff has not shown prior
actual use that could be evidence of the width of the easement, and Defendants
have raised facts that could show the easement is smaller than fifty feet, genuine
issues of material fact remain.
Plaintiff also argues it has an “open easement” over the entire original land
tract, and thus the entirety of Defendants’ properties. (E.g., Doc. 69 at 2).
Consequently, it argues that in only requesting access to a fifty-foot corridor, it is in
fact voluntarily limiting itself to a narrower set of rights than those to which it is
entitled. (E.g., Doc. 69 at 2). Plaintiff cites no case law in support of this “open
easement” concept. In fact, a search of Westlaw and LexisNexis for Illinois court
opinions containing the phrase “open easement” revealed none.
12
Perhaps Plaintiff is attempting to argue the width of the easement is actually
the entire tract of land the Shoups originally owned when they granted the
easement to Central Pipe Line, implying the easement has no spatial limitations at
all. But Plaintiff cannot argue it has rights beyond what is reasonably necessary for
the purpose of the easement. The easement is the right of use, not a portion of land
itself, and certainly not a purchase of land in fee simple. The language in the
easement agreement grants “the right to lay, maintain, alter, repair, replace,
operate and remove . . . a pipe line” as well as the “right of ingress and egress” over
the described property. Plaintiff may have had wide latitude in choosing where to
lay the pipeline, or could arguably have a right to replace the pipeline in a different
location on the property, and perhaps the right of ingress and egress may include
some rights over unspecified additional portions of the land. Beyond that, however,
now that the pipeline is laid, Plaintiff’s right of use is spatially limited because the
purpose of the easement revolves around the location of the pipeline. Thus, the
“open easement” argument is without merit.
A reasonable fact-finder could conclude Plaintiff’s easement rights are not as
broad as it claims they are. Plaintiff has not provided sufficient evidence of the
specific amount of space needed to inspect or complete work on the pipeline.
Plaintiff also has not shown how the easement width it seeks corresponds to prior
actual use. Accordingly, genuine issues of material fact exist as to the easement’s
width, and Plaintiff’s Motions are denied.
13
C. Right to Remove Alleged Encroachments
Even if the easement were fifty feet wide or covered the entire tract of land as
Plaintiff claims, it still would not give Plaintiff a right to do whatever it wishes on
the land. Plaintiff does not own any amount of the property in fee simple; it only has
a right of use consistent with the agreement. An easement does not mean Plaintiff
can require Defendants to leave a fifty-foot strip of land bare and useless. As noted
above, under Illinois law, the easement owner is entitled to reasonably necessary
use of the property, and the servient estate may use its property in any way that
does not interfere with the easement owner’s use. Erday’s Clothiers, 592 N.E.2d at
621. Plaintiff has not shown that clearing all of the trees and structures within
twenty-five feet of the pipeline is reasonably necessary for its enjoyment of the
property.
Plaintiff argues that it primarily inspects pipelines aerially, and that trees,
brush, and other structures within twenty-five feet of the pipeline can be
problematic to that inspection. (E.g., Doc. 37 at 6). Plaintiff also bases its need for
an injunction to allow it to remove such trees and structures on the fact that these
obstructions can prevent efficient repairs, and trees could damage the pipeline
itself. (Doc. 37 at 6).
Defendants have shown that this is not enough evidence for Plaintiff to
sustain its claim for a permanent injunction. They have demonstrated the materials
Plaintiff relies on do not establish the absence of disputed facts and do not achieve
success on the merits, and they have raised additional disputes of fact. The Bowers
Defendants emphasize Plaintiff has failed to support the need for a fifty-foot
14
easement, arguing that even if the alleged obstructions on their property remained,
Plaintiff would have forty unobstructed feet of space to use in the event of a repair,
and that Plaintiff has not shown the garage and shed hamper any potential
inspection, maintenance, or repairs. (Doc. 64 at 3-7). They note the structures have
been present on the property for over fifty years. (Doc. 64 at 8).
Defendant Gray states in an affidavit that an employee of Eastern Panhandle
Pipeline Company told him in 1978 that the concrete slab where the carport is
located could remain there. (Doc. 56 at 2-3). He also testifies that in 2001, Plaintiff
removed some trees from the area near the pipeline, but did not remove other trees
that it now seeks to remove, and approved the carport it now seeks to remove. (Doc.
56 at 3-4). Similarly, Defendant Nichoalds asserts that Plaintiff approved the
location of some of the structures it now wants to remove. (Doc. 61 at 2-3). Many of
these facts are material and disputed by Plaintiff. (Doc. 72 at 2-5; Doc. 73 at 4-5).
Defendants note inconsistencies in Plaintiff’s past actions and current
requests, particularly that Plaintiff allegedly approved the location of some of the
structures at issue and in the past removed some trees but left others that it now
seeks to remove. (Doc. 70 at 6). Defendants also point out the inconsistency inherent
in seeking to remove a concrete slab a few feet away from the pipeline when a
portion of the pipeline is directly under a paved road. (Doc. 56 at 5; Doc. 61 at 3). All
of this is sufficient to show that Plaintiff has not adequately proven its claim at this
stage of the litigation and that there are genuine disputes of material fact that
preclude summary judgment.
15
Though the Court cannot grant judgment in Plaintiff’s favor, it does note that
Plaintiff is entitled to necessary use of its easement, which may include the aerial
inspection of the pipeline if Plaintiff can show it is reasonably necessary for full
enjoyment of the easement. If Plaintiff can adequately show that it is entitled to
remove the obstructions at issue to presently inspect or maintain its pipeline, and
that Defendants are denying them enjoyment of that right, Plaintiff will likely be
entitled to an injunction. Thus, while Plaintiff may well be entitled to an injunction
to enforce its property rights, because the extent of those rights and the injury to
Plaintiff have not been proven and fact-finding will be necessary to resolve the
disputes of fact, summary judgment is not appropriate at this time.
DEFAULT JUDGMENT MOTIONS
Plaintiff also seeks default judgments against Defendants Luke Matarelli,
Clyde I. Petty, and Karen L. Petty. These Defendants have been properly served
and have not appeared in this action, nor have they filed any response to the
pending Motions against them. Default was entered against these Defendants on
August 27, 2013. Defendants’ liability is thus established, and is no longer in
controversy. e360 Insight v. Spamhaus Project, 500 F.3d 594, 604 (7th Cir. 2007).
The well-pled facts of the Complaint relating to liability are taken as true. Dundee
Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.
1983). However, the Court must still determine what remedy is appropriate. e360
Insight, 500 F.3d at 604-06.
As Plaintiff acknowledges, it does not seek any liquidated or ascertainable
damages, and in fact seeks only injunctive relief. Thus, a hearing is required to
16
inquire into the necessity of injunctive relief and determine the scope of an
appropriate injunction. See id. Plaintiff seeks default judgment now with a hearing
to define the remedy, but because the judgment includes the remedy, the Court will
instead take the Motions for Default Judgment under advisement and set the
matter for a hearing to determine what remedy is appropriate before entering a
default judgment.
Further, before the Court can enter default judgment against an individual
defendant who has failed to appear, the plaintiff must file an affidavit stating
“whether or not the defendant is in military service” and provide supporting facts.
50 U.S.C. app. § 521(b)(1)(A). Plaintiff states the individuals are not in military
service in the affidavits in support of the Motions, but does not provide any
supporting facts. (Doc. 65-2 at 1, Doc. 66-2 at 1). Thus, the Court is unable to enter
judgment for Plaintiff against Defendants at this time, and Plaintiff must submit
facts that show Defendants are not in military service at or in advance of the
hearing.
CONCLUSION
IT IS THEREFORE ORDERED:
1. Plaintiff’s Motions for Summary Judgment as to Defendants Gene Bowers
and Virginia Gillette (Doc. 37), Defendants Harry Gray and Shirley Hadley
(Doc. 38), and Defendant William Nichoalds (Doc. 39) are DENIED.
2. Plaintiff’s Motions for Default Judgment as to Defendant Luke Matarelli
(Doc. 65) and Defendants Clyde I. Petty and Karen L. Petty (Doc. 66), are
17
TAKEN UNDER ADVISEMENT. These Motions are SET for hearing on
October 23, 2013, at 2:00 P.M. in Courtroom D.
3. Plaintiff SHALL file a brief within fourteen days of the date of this Order if it
believes it can somehow maintain a claim against Edith Nichoalds.
Otherwise, all claims nominally against her will be dismissed.
4. This matter is REFERRED BACK to Magistrate Judge Cudmore for further
pretrial proceedings.
Entered this 11th day of September, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
18
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