Caldwell v. Knox Energy Cooperative Association, Inc.

Filing 31

ORDER granting #13 Defendant's Motion to Dismiss Plaintiff's claim filed under 42 U.S.C. 1983. The Court further DISMISSES WITHOUT PREJUDICE to refiling in state court Plaintiffs claim of trespass. Signed by Judge Edmund A. Sargus on 5/10/2022. (cmw)

Case: 2:21-cv-05079-EAS-KAJ Doc #: 31 Filed: 05/10/22 Page: 1 of 7 PAGEID #: 280

UNITED STATES DISTRIC COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DR. JOSEPH G. CALDWELL,
Plaintiff,

CASE NO. 2:21-CV-5079
JUDGE EDMUND A. SARGUS, JR.
MAGISTRATE JUDGE KIM JOLSON

v.
KNOX ENERGY COOPERATIVE
ASSOCIATION, INC.,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Federal
Claim (ECF No. 13), Plaintiff’s Memorandum in Opposition (ECF No. 20), and Defendant’s
Reply (ECF No. 24). For the reasons that follow, the Court GRANTS Defendant’s Motion and
DISMISSES WITHOUT PREJUDICE to refiling in state court Plaintiff’s state law trespass
claim.
I.
Plaintiff Dr. Joseph G. Caldwell owns and resides on approximately 77 acres of land
located in Pickaway County, Ohio. He filed this action against Knox Energy Cooperative
Association, Inc., a corporation organized under the laws of the State of Ohio that provides
natural gas throughout Ohio and acts through contractors to provide natural gas services
throughout Ohio.
In the Complaint, Plaintiff makes the following allegations:
“The State of Ohio has granted Knox Energy the power of eminent domain in order to
install natural gas pipelines pursuant to [Ohio Revised Code §] 1723.01 [Appropriation of

Case: 2:21-cv-05079-EAS-KAJ Doc #: 31 Filed: 05/10/22 Page: 2 of 7 PAGEID #: 281

Property by Certain Corporations].” (Compl. ¶¶ 16, 45.) Plaintiff avers that “Knox Energy has
taken Dr. Caldwell’s property (“the Property”) without just compensation and has violated Dr.
Caldwell’s constitutional rights. Id. ¶ 6. Specifically, in “January of 2021, Knox Energy
approached Dr. Caldwell, seeking to purchase an easement over the Property to construct a
natural gas transmission pipeline. A land agent acting for Knox Energy sent Dr. Caldwell a
document that, if executed, would allow Knox Energy to purchase a ‘Pipeline Right of Way’
over the Property.” Id. ¶ 20. Dr. Caldwell asked for information about the proposed easement,
to which he received no response.
On “March 8, 2021, Knox Energy and/or its agents went onto the Property, including by
the family home and on the driveway, and began constructing a pipeline on the Property without
Dr. Caldwell’s permission.” Id. ¶ 24. “Dr. Caldwell immediately notified Knox Energy’s land
agent that he had not authorized any work to be performed on his Property or for anyone to
access his Property. Dr. Caldwell instructed Knox Energy and those acting on its behalf to halt
all activities on the Property.” Id. ¶ 25.
Plaintiff alleges that Knox Energy’s land agent claimed that Knox Energy was installing
the pipeline in what he called a “public right of way” on Dr. Caldwell’s property and that Knox
Energy had a permit to do so. Dr. Caldwell avers that he has never seen a document granting a
“public right of way” or highway easement over his Property and asked Knox Energy for
documentation showing the extent of that claimed easement.” Id. ¶ 28.
Knox Energy obtained a permit from the Ohio Department of Transportation (“ODOT”)
that it claims provided it permission to install the pipeline on Dr. Caldwell’s property over a
right-of-way or highway easement. The permit specifically indicates that it “is not a substitute
for satisfying the rights or obligations of any other party who may have an interest in the

2

Case: 2:21-cv-05079-EAS-KAJ Doc #: 31 Filed: 05/10/22 Page: 3 of 7 PAGEID #: 282

underlying fee interest.” Id. ¶ 32. ODOT also confirmed in writing that “ODOT does not have
any documentation regarding the right -of-way or any highway easement at the property location
of 12479 SR 104.” Id. ¶ 38.
Plaintiff alleges that Defendant refused to compensate him for the taking of his property.
Plaintiff filed this action, alleging violations of his constitutional rights under 42 U.S.C. § 1983
and a state law claim for trespass. Defendant moves for dismissal for failure to state a claim
upon which relief can be granted, for failure to join a necessary party, and for discretionary
declination of supplemental jurisdiction.
II.
Defendant contends that Plaintiff has failed to state a federal claim upon which relief can
be granted and it is entitled to dismissal under Federal Rule of Civil Procedure 12(b)(6) of the
federal claim. Alternatively, Defendant argues that it is entitled to dismissal under Rule 12(b)(7)
for failure to join a necessary party. Because this Court agrees with the first proposition, it does
not address the second.
A.

Standard
In evaluating a complaint to determine whether it states a claim upon which relief can be

granted, the Court must construe it in favor of the plaintiff, accept the factual allegations
contained in the pleading as true, and determine whether the factual allegations present any
plausible claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). See also
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (clarifying the plausibility standard articulated in
Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct

3

Case: 2:21-cv-05079-EAS-KAJ Doc #: 31 Filed: 05/10/22 Page: 4 of 7 PAGEID #: 283

alleged.” Iqbal, 556 U.S. at 678. The factual allegations of a pleading “must be enough to raise
a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.
B.

Analysis
Plaintiff alleges unconstitutional taking under Section 42 U.S.C. § 1983, which provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
Section 1983 is the procedural vehicle through which a plaintiff may “vindicate the

deprivation of a right secured by the Constitution or laws of the United States caused by a person
acting under color of state law.” Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005) (citing.
West v. Atkins, 487 U.S. 42, 48 (1988)). To survive a motion to dismiss a claim under 42 U.S.C.
§ 1983, the plaintiff must allege two elements: (1) the defendant acted under color of state law;
and (2) the defendant’s conduct deprived the plaintiff of rights secured under federal law. Bloch
v. Ribar, 156 F.3d 673, 677 (6th Cir.1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)).
Defendant argues, inter alia, that it is not subject to suit under § 1983 because it was not
acting under color of state law. For a private entity’s actions to constitute “state action,” the
alleged infringement of federal rights must be “fairly attributable to the State.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)); Lansing v. City of Memphis, 202 F.3d 821, 828
(6th Cir. 2000). Under the “public function” test, the actions of a private entity or individual are
fairly attributable to the state if the private party “exercises powers which are traditionally
exclusively reserved to the state, such as holding elections or eminent domain.” Wolotsky v.
Huhn, 960 F.2d 1331 (6th Cir. 1992).
Both parties agree that the state of Ohio grants certain operators of natural-gas pipelines
the right to exercise the state’s eminent-domain power. Ohio Rev. Code § 1723.01, et seq. The
4

Case: 2:21-cv-05079-EAS-KAJ Doc #: 31 Filed: 05/10/22 Page: 5 of 7 PAGEID #: 284

appropriation referred to in § 1723.01 “shall be made in accordance with sections 163.01 to
163.22 of the Revised Code.” Ohio Rev. Code § 1723.02. Before an agency may appropriate
property, it must provide the affected property owner with a “Notice of Intent to Acquire.” Ohio
Rev. Code §§ 163.04, 163.041.
The Notice must:
• inform the property owner that the agency needs the property to
accomplish a specific project;
• include a written, good-faith offer to purchase “based on [the
agency's] determination of the fair market value”;
• advise the property owner that she need not accept the offer, but
that, if the parties cannot agree on terms, the agency “may have to
exercise [its] eminent domain authority to appropriate [the]
property”; and
• tell the property owner that she has the right to challenge in a court
proceeding “whether the project is necessary,” “whether the project
is a public use,” and “whether the agency's offer reflects the fair
market value of the property.”
Ohio Rev. Code § 163.041.
Cox v. State of Ohio, 3:16CV1826, 2016 WL 4507779, at *2 (N.D. Ohio Aug. 29, 2016).
Finally, in the instant action, the Property is located in Ashville, Ohio, which is a
municipal corporation. Ohio Revised Code § 1723.03, states that § 1723.01 does “not confer
power to appropriate any portion of, or confer any right in, any street, alley, highway, or other
public way or land situated within any municipal corporation without such municipal
corporation’s consent.”
Plaintiff alleges that Defendant exercised the power of eminent domain when it laid the
pipeline on his property without his permission. Defendant argues that, just because it may have

5

Case: 2:21-cv-05079-EAS-KAJ Doc #: 31 Filed: 05/10/22 Page: 6 of 7 PAGEID #: 285

the power of eminent domain under these Ohio statutes, it did not exercise that power and
Plaintiff has alleged no facts to show that it did. This Court agrees.
Defendant points to a Sixth Circuit decision that is on point and dispositive. In Cennamo
v. Buckeye Rural Electric Coop., the plaintiff asserted federal and state claims to recover
damages for the continued presence of Buckeye’s electrical equipment on his property without
his permission arguing that the action violated 42 U.S.C. § 1983. 620 F.2d 301 (6th Cir. 1980)
(unpublished), 1980 U.S. App. LEXIS 18517 (April 18, 1980). “The coop, he alleged,
effectively had exercised its statutorily granted eminent domain power without providing him
just compensation, thus depriving him or property without due process of law.” Id. at *2. The
Sixth Circuit stated:
The mere availability of eminent domain power -- unexercised by Buckeye -- does
not constitute state action, as argued by Cennamo. The acquisition by Buckeye of
the right to place and maintain equipment on Cennamo’s farm did not constitute
the exercise of the power of eminent domain or state action.
Id. at *3.
Cennamo presented the same situation that is before this Court. That is, even if
Defendant possesses the right to exercise eminent domain, it did not exercise that right. Plaintiff
alleges nothing from which a reasonable inference can be drawn that Defendant obtained the
municipality’s consent as required under Ohio Revised Code § § 1723.03. Nor did Plaintiff
make any allegations to suggest that Defendant followed any of the procedures set forth in Ohio
Revised Code §§ 163.04 and 163.041 as required by § 1723.02. Thus, Plaintiff has failed to
allege sufficient facts to show that there is any state action and Plaintiff’s § 1983 claim must fail.
As Defendant highlights, however, this does not leave Plaintiff without recourse for the
allegations that Defendant trespassed on his land and caused him damages. As to that claim,

6

Case: 2:21-cv-05079-EAS-KAJ Doc #: 31 Filed: 05/10/22 Page: 7 of 7 PAGEID #: 286

Cennamo directs that the state law claim should be remanded. This case was not removed, so
this Court cannot remand, but instead must dismiss without prejudice to refiling in state court.
IV.
Based on the foregoing, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s
claim filed under 42 U.S.C. § 1983 (ECF No. 13) and DISMISSES WITHOUT PREJUDICE
to refiling in state court Plaintiff’s claim of trespass. The Clerk is DIRECTED to close this
case.
IT IS SO ORDERED.

5/10/2022
DATE

s/Edmund A. Sargus, Jr.
EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE

7