Fayviard v. UGI Storage Company

Filing 27

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 6/6/14. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FAYVIARD, LLC,
Plaintiff
v.
UGI STORAGE COMPANY,
Defendant.

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Case No. 4:13-cv-02400

(Judge Brann)

MEMORANDUM
June 6, 2014
For the following reasons, plaintiff Fayviard, LLC’s motion for remand to
the Court of Common Pleas of Tioga County, Pennsylvania is granted.
I.

Background
Originally filed on August 16, 2013 by plaintiff Fayviard LLC (hereinafter,

“Fayviard”) in the Court of Common Pleas of Tioga County, Pennsylvania, this
case was removed to federal court by defendant UGI Storage Company
(hereinafter, “UGI”) on September 17, 2013. (ECF No. 1). As grounds for removal,
UGI asserted this Court’s federal question jurisdiction under 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States”).

1

On September 26, 2013, Fayviard moved to remand the case to the Court of
Common Pleas (ECF No. 7) and requested oral argument on the motion (ECF No.
8). See also 28 U.S.C. § 1447(c) (providing for remand of removed case).
Fayviard briefed the motion to remand on September 26, 2013 (ECF No. 7-2); UGI
filed an opposing brief on October 10, 2013 (ECF No. 15); and Fayviard filed a
reply brief on October 14, 2013 (ECF No. 19).
Also on October 14, 2013, Fayviard’s counsel wrote to the Court a letter
requesting reimbursement, pursuant to 28 U.S.C. § 1447(c), of “actual expenses,
including attorney’s fees,” in the event Fayviard’s motion to remand is granted.
(ECF No. 20).
On December 9, 2013, Fayviard’s counsel wrote to the Court a letter
candidly, if ludicrously, explaining that he had “not extensively research[ed] the
law” at the time he filed his briefs in support of remand. But, counsel continued,
having “further researched the law” in the intervening period, he had discovered a
compelling reason for remanding the case to the Court of Common Pleas. (ECF
No. 22). Counsel proceeded to “suggest” the reason to the Court.
On December 16, 2013, UGI moved to strike Fayviard’s December 9, 2013
letter on the ground that the letter constituted a brief filed out of time in support of
the pending motion to remand. (ECF No. 23).
2

On January 14, 2014, Fayviard petitioned the United States Court of Appeals
for the Third Circuit for a writ of mandamus ordering the undersigned to remand
this case to the Court of Common Pleas. The Third Circuit denied this motion
without prejudice on May 20, 2014.1
II.

Summary of the Complaint
Citing 26 Pa. C.S.A. § 502(c) and 58 Pa. C.S.A. § 3241(e), Fayviard’s

Complaint petitions the Court of Common Pleas for the appointment of viewers to
assess damages Fayviard alleges are owed as a result of UGI’s de
facto condemnation of Fayviard’s interests in oil and gas lying beneath the surface
of property owned by Scott Fay in Tioga County, Pennsylvania. (See Compl., ECF
No. 1-1 ¶¶ 1-6).
According to Fayviard, some time on or after October 26, 2009, UGI, a “gas
storage utility” vested with “the power of eminent domain pursuant to both the
laws of the Commonwealth of Pennsylvania2 and the federal Natural Gas Act,”3

1

In addition to the foregoing, the following motions were docketed: On
September 25, 2013, UGI moved to dismiss on the ground that Fayviard’s
complaint fails to state a claim upon which relief can be granted.” (ECF No. 6). On
October 3, 2013, Fayviard moved to strike UGI’s motion to dismiss. (ECF No. 12).
On October 11, 2013, Fayviard withdrew its motion to strike. (ECF No. 17).
2

Presumably Fayviard is referring to 58 Pa. C.S.A. § 3241(a), which, in
relevant part, provides:
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applied to the Federal Energy Regulatory Commission (hereinafter, “FERC”) for a
certificate of public convenience and necessity (hereinafter, “CPCN”) authorizing
UGI’s operation of a gas storage facility – the “Meeker Storage Facility” – in
Tioga County, Pennsylvania. (Compl. ¶¶ 2, 3, 10). UGI’s proposed dimensions for
the Meeker Storage Facility include a 3,000 foot “buffer zone” surrounding the
Facility. (Id. ¶¶ 11-12). Once FERC authorizes the buffer zone, Fayviard asserts,
gas drilling (specifically, drilling by the hydraulic fracturing method) will be
prohibited within that zone.4 (Id. ¶ 13).
Fayviard “believes, and therefore avers,” that Mr. Fay’s property and
Fayviard’s oil and gas interests are located “within either or both” of the Meeker
[A] corporation empowered to transport, sell or store natural gas or
manufactured gas in this Commonwealth may appropriate an interest in
real property located in a storage reservoir or reservoir protective area
for injection, storage and removal from storage of natural gas or
manufactured gas in a stratum which is or previously has been
commercially productive of natural gas.
3

The Natural Gas Act is codified at 15 U.S.C. §§ 717 et seq.

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The Complaint is sloppy in communicating whether drilling is currently
prohibited (see id. ¶ 20 (“[FERC] prohibits the use of hydraulic fracturing in the
Marcellus Shale in either the storage zone of the Meeker Storage Facility or the
Buffer Zone.”)) or will be prohibited in the future (see id. ¶ 13 (“When [FERC]
certifies the Buffer Zone to be 3000 feet, Hydraulic Fracturing in the Marcellus
Shale will be prohibited in the Buffer Zone.”)). Elsewhere, Fayviard makes clear
that future prohibition of drilling is anticipated. (Pl. Reply Br., Oct. 14, 2013, ECF
No. 19 at 2).
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Storage Facility and buffer zone. (Id. ¶ 17). Fayviard’s oil and gas interests are
“very valuable,” but UGI’s actions have destroyed their value because entities that
would otherwise lease the right to exploit them “know” that hydraulic fracturing
will be prohibited in the Meeker Storage Facility and buffer zone. (Id. ¶¶ 13, 18,
21). Consequently, such entities “will not lease oil and gas rights nor will they drill
. . . in the . . . Meeker Storage Facility or the buffer zone.” (Id. ¶ 24).
Although a condition precedent to receiving the CPCN required UGI to
notify landowners potentially affected by the Meeker Storage project, UGI
“notified neither Mr. Fay nor Fayviard” of its CPCN application, and UGI has
made no overtures towards purchasing Fayviard’s interests. (Id. ¶¶14-16). Nor has
UGI filed a declaration of taking under Pennsylvania law. (Id. ¶ 25). Consequently,
Fayviard alleges that a de facto taking of his oil and gas interests has occurred. He
proceeds under 26 Pa. C.S.A. § 502(c), which provides that “[a]n owner of a
property interest who asserts that the owner’s property interest has been
condemned without the filing of a declaration of taking may file a petition for the
appointment of viewers,” and 58 Pa. C.S.A. § 3241(e), which likewise allows
property owners to petition for the appointment of “viewers to assess damages to
be paid to the property owner for the rights appropriated.”
III.

UGI’s Opposition to Remand
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In response to Fayviard’s motion to remand, UGI argues that removal to this
Court is proper because Fayviard’s claim raises federal questions sufficiently
substantial to warrant exercise of this Court’s federal question jurisdiction.
Specifically, Fayviard’s “claim depends upon an interpretation of the [federal]
Natural Gas Act, the powers of [FERC, a federal regulatory agency], and the effect
of an application pending before [FERC].” (Def. Opp’n Br., Oct. 10, 2013, ECF
No. 15 at 2). Such interpretive issues arise because Fayviard “claims that UGI has
a duty to compensate it based on the buffer zone requested within the application
before [FERC], which application is based on powers granted by Section 717f of
the Natural Gas Act and the regulations thereunder.” (Def. Opp’n Br. at 2).
“Simply put,” UGI explains, Fayviard’s “claim for compensation requires this
Court to determine whether a buffer zone certificated by [FERC] amounts to a
taking of plaintiff’s property.” (Id. at 3).
“In addition,” UGI asserts, Fayviard “claims that UGI violated [FERC]
regulations by allegedly not notifying [Fayviard] of the [CPCN] application, and
by allegedly not negotiating in good faith with [Fayviard] prior to filing the
application.” (Id. ¶ 2-3). UGI also cites various provisions of the Natural Gas Act,

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including § 717u,5 which grants federal courts exclusive jurisdiction over claims
alleging Natural Gas Act violations; § 717r, which, among other things, allocates
jurisdiction over various types of appeals from orders issued by FERC and other
state and federal agencies; and § 717f(h),6 which gives federal and state courts

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In relevant part, 15 U.S.C. § 717u provides:

The District Courts of the United States and the United States courts of
any Territory or other place subject to the jurisdiction of the United
States shall have exclusive jurisdiction of violations of this chapter or the
rules, regulations, and orders thereunder, and of all suits in equity and
actions at law brought to enforce any liability or duty created by, or to
enjoin any violation of, this chapter or any rule, regulation, or order
thereunder.
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15 U.S.C. § 717f(h) provides:

When any holder of a certificate of public convenience and necessity
cannot acquire by contract, or is unable to agree with the owner of
property to the compensation to be paid for, the necessary right-of-way
to construct, operate, and maintain a pipe line or pipe lines for the
transportation of natural gas, and the necessary land or other property,
in addition to right-of-way, for the location of compressor stations,
pressure apparatus, or other stations or equipment necessary to the
proper operation of such pipe line or pipe lines, it may acquire the same
by the exercise of the right of eminent domain in the district court of the
United States for the district in which such property may be located, or
in the State courts. The practice and procedure in any action or
proceeding for that purpose in the district court of the United States shall
conform as nearly as may be with the practice and procedure in similar
action or proceeding in the courts of the State where the property is
situated: Provided, That the United States district courts shall only have
jurisdiction of cases when the amount claimed by the owner of the
property to be condemned exceeds $3,000.
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concurrent jurisdiction over eminent domain actions by CPCN-holders. All of
these provisions, according to UGI, further support federal jurisdiction over
Fayviard’s claim.
IV.

Discussion
“The defendant’s right to remove is to be determined according to the

plaintiffs’ pleading at the time of the petition for removal, and it is the defendant’s
burden to show the existence of federal jurisdiction.” Abels v. State Farm Fire &
Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). Removal statutes “should be strictly
construed and all doubts should be resolved in favor of remand.” Id. See also 16
Moore’s Federal Practice, § 107.41(e)(i)(A) (Matthew Bender 3d ed.) (“[A]
defendant who has removed a case ordinarily has the burden of proving the
grounds necessary to support removal when the plaintiff attempts to remand the
case.”).
Generally, “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction” may be removed to federal
court. 28 U.S.C. § 1441(a). UGI asserts that removal is proper here because “[t]he
district courts . . . have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Whether, as
UGI asserts, this case “arises under” federal law is determined by looking at the
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face of Fayviard’s Complaint, independent of any defenses raised by UGI. United
States Express Lines, Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002).
Even if Fayviard’s Complaint does not rely on a federal cause of action,
federal question jurisdiction is not necessarily lacking. “Congress has given the
lower federal courts jurisdiction to hear, originally or by removal from a state
court, . . . those cases in which a well-pleaded complaint establishes either that
federal law creates the cause of action or that the plaintiff’s right to relief
necessarily depends on resolution of a substantial question of federal law.”
Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust for S.
California, 463 U.S. 1, 27-28 (1983) (emphasis added).
Thus, this Court has jurisdiction if Fayviard’s Complaint “necessarily
raise[s] a stated federal issue, actually disputed and substantial, which a federal
forum may entertain without disturbing any congressionally approved balance of
federal and state judicial responsibilities.” Grable & Sons Metal Prod., Inc. v.
Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005). See also Gunn v. Minton, 133 S.
Ct. 1059, 1065 (2013) (“[F]ederal jurisdiction over a state law claim will lie if a
federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4)
capable of resolution in federal court without disrupting the federal-state balance
approved by Congress.”). Complaints meeting this standard, however, constitute “a
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‘special and small category’ of cases.” Id. (quoting Empire Healthchoice
Assurance v. McVeigh, 547 U.S. 677, 699 (2006)).
Fayviard’s Complaint does not fit the bill. To prove a de
facto condemnation, Fayviard will be required to show (1) “exceptional
circumstances which have substantially deprived [it] of the beneficial use and
enjoyment of [its] property,” (2) that the “substantial deprivation [has been]
occasioned by the actions of [a defendant] clothed with the power of eminent
domain,” (3) that the substantial deprivation resulted from defendant’s exercise of
that power, and (4) that “the damages sustained [are] an immediate, necessary and
unavoidable consequence of such exercise.” Darlington v. Cnty. of Chester, 147
Pa. Commw. Ct. 177, 607 A.2d 315, 183 (1992). The inquiry is highly factspecific; “each case turns on its unique factual matrix.” Id. at 184.
Federal law is implicated in some of the elements of Fayviard’s de
facto condemnation claim, but not in a fashion that gives rise to federal
jurisdiction. Thus, the Complaint asserts that UGI takes its power of eminent
domain in part from the Natural Gas Act, a federal law, but this assertion is not in
dispute. Cf. United Gas Pipe Line Co. v. Brown, 207 F. Supp. 139, 142 (E.D. La.
1962) (mere fact that gas company conducts itself under a certificate from Federal
Power Commission, FERC’s predecessor, “creates no federal question”).
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The Complaint also asserts that UGI’s (federal) CPCN application evidences
UGI’s intention to exercise of its power of eminent domain, but contrary to UGI’s
contention, Fayviard does not assert that UGI’s CPCN application “amounts to a
taking,” at least not by force of federal law. (Def. Opp’n Br. at 2). It appears,
rather, that Fayviard views UGI’s CPCN-seeking conduct and the perception of
that conduct by potential lessees of Fayviard’s oil and gas interests simply as part
of the “factual matrix” tending to show that a de facto taking has occurred.7
Tellingly, while offering vague allusions to the “interpretation[s] of the Natural
Gas Act” that Fayviard’s claim will purportedly bring about (Def. Opp’n Br. at 2),
UGI fails to cite a single federal statutory or regulatory provision that will have
any material impact on the outcome of Fayviard’s claim. In sum, no federal
question appears on the face of the Complaint.
Attempting to manufacture jurisdiction, UGI posits that Fayviard has alleged

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That said, UGI should be excused for misconstruing Fayviard’s inartfully
drawn Complaint in this respect. See n.4 supra. In the Court’s reading, Fayviard’s
theory of liability appears to be analogous to that of the (unsuccessful) plaintiff in
Darlington v. Cnty. of Chester, 147 Pa. Commw. Ct. 177, 607 A.2d 315 (1992). In
Darlington, the plaintiff claimed, inter alia, that the county’s well-publicized but
unconsummated plan to condemn his rental properties in order to build a proposed
“Public Services Building” created such uncertainty for potential lessees that it
rendered plaintiff’s properties unmarketable. Likewise here, Fayviard claims that
UGI’s known but unconsummated intention to condemn properties within the
buffer zone has rendered his oil and gas interests unmarketable.
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a violation of the Natural Gas Act. This is a red herring. Fayviard does not seek
relief for a violation of the Natural Gas Act, and establishing a violation (if that is
even the proper word for UGI’s alleged conduct) of CPCN application
requirements is no necessary part of proving that a de facto condemnation has
occurred. UGI cannot weave this non-issue into a substantial federal issue.
Finally, UGI’s scattershot citations to jurisdictional provisions of the Natural
Gas Act do not hit the mark. Section 717u does not come into play because
Fayviard does not allege a violation of the Natural Gas Act. Likewise as to § 717r
because Fayviard does not appeal a decision of FERC or any agency.
UGI’s citation to § 717f(h) is somewhat puzzling because, if anything, that
provision indicates this case should be in state court. Section 717f(h) provides for
federal jurisdiction over eminent domain actions involving CPCN-holders who
have been unable to agree with a property owner on the price of a right-of-way or
other property necessary to complete a certificated project. See Nw. Pipeline G.P.
v Francisco, 2008 WL 4547216, at *3 (W.D. Wash. Oct. 3, 2008) (“[B]ecause
Defendants have not allowed [plaintiff gas company] to acquire their land and
because the land may be deemed necessary by the certificate, [plaintiff] is entitled
to initiate condemnation proceedings in district court.”). Here, the predicates to
federal jurisdiction are lacking. According to the Complaint, UGI has never sought
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to purchase Fayviard’s oil and gas interests, and indeed UGI apparently has not
come to possess a CPCN that would allow it to exercise its power of eminent
domain to acquire those interests in federal court. See UGI Storage Co., 133
F.E.R.C. 61073, 61397 (2010) (“[T]his order will certificate only those portions of
the 2,980 acres of the proposed buffer zone for the Meeker facility for which UGI
Storage has already acquired the necessary property rights or will be able to
acquire such rights from [its predecessor].”). Had UGI taken those steps, the
Court’s analysis may well be different since § 717f(h) implies that the CPCNholder is entitled to select his preferred forum. But the actual circumstances are
otherwise and, accordingly, so is the result. Cf. Humphries v. Williams Natural
Gas Co., 48 F. Supp. 2d 1276, 1279-83 (D. Kan. 1999)
This case should be remanded to the Court of Common Pleas because UGI
has not met its burden of establishing federal jurisdiction. That said, neither party
in this case has done much to persuade the Court. The parties’s briefs are, to put it
lightly, not exemplary, and certainly do not meet the complexity of the issues
involved. This is unfortunate because, generally, thoughtful and amply-supported
legal opinions are built, if at all, upon thoughtful and amply-supported briefs from
the parties, especially when fairly discrete areas of the law – e.g., the Natural Gas
Act, de facto condemnation in Pennsylvania – are involved.
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Fayviard’s counsel admittedly “did not extensively research the law” before
composing his briefs, apparently having concluded that removal was, prima facie,
an “obvious dilatory action” by UGI. (ECF No. 22). This approach was misguided
since “the federal government’s pervasive presence in the field of natural gas is
beyond peradventure,” Humphries, 48 F. Supp. 2d at 1278 (D. Kan. 1999), and the
analysis that separates state law claims merely touching on federal law from those
that implicate federal law substantially enough to trigger federal jurisdiction is
“anything but clear.” Grable & Sons, 545 U.S. at 321 (Thomas, J., concurring).
The admitted failure of Fayviard’s counsel to grapple with these issues gave his
early submissions in support of remand little force.
Worse, when Fayviard’s counsel roused himself to “further research the
law,” his arguments to the Court clearly implicated binding precedent contrary to
his position, see Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344
(1999), which went unmentioned. Especially since Fayviard made the argument
outside of a briefing schedule – meaning no corrective reply from UGI would
necessarily be forthcoming – it was incumbent upon Fayviard’s counsel to mention
and distinguish (if possible) this binding precedent from the outset.
Regardless, this case should return to the Court of Common Pleas. Since it
does not appear that UGI removed this case in bad faith or without colorable basis
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for removal, the parties should bear their own costs and actual expenses, including
attorney fees.
V.

Conclusion
For the foregoing reasons, plaintiff Fayviard, LLC’s motion for remand to

the Court of Common Pleas of Tioga County is granted.

BY THE COURT:

s/Matthew W. Brann
Matthew W. Brann
United States District Judge

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