East Baton Rouge Sewerage Commission v. Kansas City Southern Railway Company

Filing 43

RULING Adopting the recommendation of the U.S. Magistrate Judge...IT IS ORDERED that the motions by plaintiff to remand (Docs. 20, 22) are hereby GRANTED, and this action will be remanded to the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana.. Signed by Judge James J. Brady on 07/03/2012. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EAST BATON ROUGE SEWERAGE
COMMISSION
CIVIL ACTION
VERSUS
NO.10-867-JJB
THE KANSAS CITY SOUTHERN
RAILWAY COMPANY
RULING ON MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
The Court has carefully considered the notice of removal, the state court
petition, the record, the law applicable to this action, and the Report and
Recommendation of United States Magistrate Judge Docia L. Dalby, dated May
11, 2012. (Doc. 35). Defendant filed an objection to the report (Doc. 37); upon
order of this Court (see Docs. 38, 40), plaintiff has filed supplemental
documentary evidence (Docs. 39, 41); defendant then filed a response
memorandum (Doc. 42), all of which have been duly considered by the Court.
The salient issue is whether the Magistrate Judge correctly found that
there was evidence in the record that establishes other parties, in addition to the
defendant, have interests in the property at issue, which plaintiff seeks to
expropriate to obtain one or more servitudes upon in furtherance of a sewerage
construction project.

The identity of these parties may destroy diversity, the

jurisdictional basis upon which this Court’s subject matter jurisdiction is founded.
Three documents providing evidentiary support were submitted by plaintiff.
(See Doc. 39). Two of the documents provided a description of the chain of title

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followed by sufficient evidentiary support regarding the Pike and Parish Parcels.
(See Doc. 39-1 and 39-3). It is the chain of title regarding the “McPherson or
Balis Parcel” that is most relevant to the decision of whether or not to remand this
case. The plaintiff did attempt to submit satisfactory documentary evidence in
support of the claim that James Henry Balis, a purported Louisiana citizen, has
an ownership interest in the “McPherson or Balis Parcel.”

(See Doc. 39-2).

Upon order, a supplemental page was filed by plaintiff as further documentary
evidence and to correct a previous error in filing.

(See Doc. 41-1).

This

supplement explains how an error in an earlier judgment in possession, once
corrected, reflects that William L. Balis and Harriet Balis McBride were the forced
heirs of the McPherson parcel. Id. Upon their death the sole heirs remaining
were William David Balis and James Henry Balis. All documentary evidence
considered provides adequate support for the assertion that James Henry Balis,
a purported Louisiana citizen, has a property interest in the “McPherson or Balis
Parcel.”
The defendant raises three general contentions in its memorandum in
response to this Court’s order.

(See Doc. 42).

The first is to question the

credibility of the plaintiff who has made two errors during these proceedings: one
in finding late in the proceedings that there were more parties than KCS alone
with an ownership interest in the disputed property, and the other in that the
“second page of the McPherson deed” was not attached. Id. at 3. To the first
purported error, the plaintiffs have made it clear that the discovery of the
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additional defendants came when preparing for mediation, and that the plaintiffs
moved to add the new defendants within seven days in order to avoid any delay.
(See Doc. 22).

To the second purported error, this Court did not order the

plaintiff to supplement any deed. The Court ordered the supplemental filing of
the second page of the chain of title description, which was erroneously omitted.
This clerical error was immediately resolved by plaintiff’s supplemental filing.
The final two contentions, which argue that no activity by any purported
owners has taken place on the land in the last thirty years and that “none of the
purported new owners have asserted any claim,” both lead to the same
response. Determining whether or not to remand here is not based on the merits
of the ownership interest purported, but is based on the reasons this Court stated
in its initial ruling on the Magistrate Judge’s recommendation. (See Doc. 38).
One of the reasons of this Court’s determination is that Fed. R. Civ. P. 71.1
states “plaintiffs must add as defendants all those persons who have or claim an
interest and whose names have become known….” (emphasis added). Whether
the defendants proposed to be joined have “made a claim” in no way undermines
that the new defendants do in fact have an interest in the property. Plaintiff is not
required to show more.
Having carefully considered this matter, the Court finds that the report and
recommendations of the Magistrate Judge are clearly correct, factually as well as
legally.

Accordingly,

the

Court

hereby

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APPROVES

the

report

and

recommendation of the Magistrate Judge (Doc. 35) and ADOPTS it as the
Court’s opinion herein.
Accordingly, the motions by plaintiff to remand (Docs. 20, 22) are hereby
GRANTED, and this action will be remanded to the 19th Judicial District Court for
the Parish of East Baton Rouge, Louisiana.
Signed in Baton Rouge, Louisiana, on July 3, 2012.





JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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