PANHANDLE EASTERN PIPE LINE, COMPANY, L.P. v. PLUMMER et al

Filing 117

ORDER - On March 27, 2018, the Court granted in part Plaintiff Panhandle Eastern Pipe Line Company, L.P.'s ("Panhandle") Motion for Summary Judgment and denied Defendants Joseph and Deborah Plummer's Motion for Summary Judgment . [Filing No. 100 .] The Court held that the undisputed evidence demonstrated that the Plummers had interfered with Panhandle's rights-of-way and that Panhandle is entitled to a permanent injunction. [Filing No. 100 at 21-24.] The Court or dered Panhandle to "submit a proposed permanent injunction which complies with Rule 65(d)(1)." [Filing No. 100 at 24.] In order to ensure that the Court's permanent injunction meets the Seventh Circuit's standards for specifi city and detail, the Court ORDERS the parties, at Panhandle's convenience, to conduct a joint inspection of the rights-of-way at issue to identify the appropriate subjects for injunctive relief. Specifically, the Court ORDERS the Plummers to permit Panhandle's representatives and counsel to access their property in order to conduct the inspection. The Court ORDERS the parties to conduct the required inspection on or before July 31, 2018. Panhandle shall have 14 days following the inspection to file an amended proposed injunction that reflects the findings of the inspection and complies with Rule 65(d)(1). Panhandle's currently-pending Proposed Permanent Injunction 108 , which is designated as a motion on the Court's docket, and Motion for Attorney's Fees 109 are DENIED WITHOUT PREJUDICE to renewal as set forth above. (SEE ENTRY). Signed by Judge Jane Magnus-Stinson on 6/20/2018. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PANHANDLE EASTERN PIPE LINE,
COMPANY, L.P.,
Plaintiff,
v.
JOSEPH F. PLUMMER, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 1:16-cv-02288-JMS-DLP

ORDER
On March 27, 2018, the Court granted in part Plaintiff Panhandle Eastern Pipe Line
Company, L.P.’s (“Panhandle”) Motion for Summary Judgment and denied Defendants Joseph
and Deborah Plummer’s Motion for Summary Judgment. [Filing No. 100.] The Court held that
the undisputed evidence demonstrated that the Plummers had interfered with Panhandle’s rightsof-way and that Panhandle is entitled to a permanent injunction. [Filing No. 100 at 21-24.] The
Court ordered Panhandle to “submit a proposed permanent injunction which complies with Rule
65(d)(1).” [Filing No. 100 at 24.]
Panhandle has submitted a proposed permanent injunction, [Filing No. 108], and the
Plummers have responded, [Filing No. 114]. Panhandle’s submission asks the Court to require
the Plummers to comply with numerous terms of the Settlement Agreement and Easement
Amendment, to “permanently move all structures” from the 100 Line right-of-way, and to permit
Panhandle to clear “all growth and obstructions” except for certain “Hedges” and “Mature Trees,”
among other things. [Filing No. 108 at 1-3.] The Plummers propose several alterations to
Panhandle’s proposal and further request that certain injunctive relief be entered in their favor,
also suggesting that a truck body be permitted to remain to mark a septic system which crosses a

right-of-way. [Filing No. 114.] In reply, Panhandle argues that the Plummers are not entitled to
any injunctive relief, that the Plummers’ proposed changes are inappropriate or unsupported by
evidence, and that the truck body is an impermissible encroachment. [Filing No. 115.]
As an initial matter, the Plummers are not entitled to any injunctive relief in their favor,
nor are they entitled to any carve-out for the truck body parked to mark the septic system. A party
seeking a permanent injunction must demonstrate “success on the merits,” among other things.
Ferrell v. Dunescape Beach Club Condos. Phase I, Inc., 751 N.E.2d 702, 712 (Ind. Ct. App. 2001).
The Plummers achieved no success on the merits of their claims and have provided no basis for
the relief they seek.
The Court next turns to Panhandle’s proposed permanent injunction.

As the Court

explained in its Order on summary judgment, the contents of a permanent injunction are governed
by Rule 65(d):
Every order granting an injunction and every restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail—and not by referring to the complaint or other
document—the act or acts restrained or required.
Fed. R. Civ. P. 65(d)(1). The Seventh Circuit has “insisted on strict compliance with these
requirements.” United States v. Apex Oil Co., Inc., 579 F.3d 734, 739 (7th Cir. 2009) (collecting
cases). “The aims of Rule 65(d) are to minimize the occasion for follow-on proceedings to the
issuance of an injunction and to protect defendants from being held in contempt for failure to
follow a directive that was a trap because of its ambiguity.” Id.
Panhandle’s proposed permanent injunction remains impermissibly imprecise and
continues to refer to outside documents to describe “the act or acts restrained or required.” Fed.
R. Civ. P. 65(d)(1)(C). The parties’ briefing sheds significant light on why this may be—it is

2

difficult if not impossible for Panhandle to specifically describe what needs to be done or restrained
in the abstract, without physically observing the current condition of the rights-of-way.
In order to ensure that the Court’s permanent injunction meets the Seventh Circuit’s
standards for specificity and detail, the Court ORDERS the parties, at Panhandle’s convenience,
to conduct a joint inspection of the rights-of-way at issue to identify the appropriate subjects for
injunctive relief.

Specifically, the Court ORDERS the Plummers to permit Panhandle’s

representatives and counsel to access their property in order to conduct the inspection. The
Plummers and their counsel may accompany Panhandle’s representatives and counsel during the
inspection. Following the inspection, the parties should endeavor to reach an agreement on as
much of the injunction content as possible. The parties may submit any appropriate evidence, such
as photographs or video, to support their positions on any remaining areas of disagreement. The
Court ORDERS the parties to conduct the required inspection on or before July 31, 2018.
Panhandle shall have 14 days following the inspection to file an amended proposed injunction that
reflects the findings of the inspection and complies with Rule 65(d)(1). Briefing will proceed
under the schedule set forth in Local Rule 7-2(c)(2).
As the Court earlier held, Panhandle is entitled to reasonable attorney’s fees pursuant to
section 7 of the Settlement Agreement. Panhandle may therefore file a supplement to its Motion
for Attorney’s Fees contemporaneous with its briefing on the amended proposed injunction to
recover fees and expenses from the joint inspection. Panhandle’s currently-pending Proposed
Permanent Injunction [108], which is designated as a motion on the Court’s docket, and Motion
for Attorney’s Fees [109] are DENIED WITHOUT PREJUDICE to renewal as set forth above.

Date: 6/20/2018

3

Distribution via ECF only to all counsel of record

4