Moore et al v. Equitrans, L.P.
Filing
55
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENTAND AMENDED MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND SCHEDULING STATUS AND SCHEDULING CONFERENCE: ORDER denying as moot 31 Motion fo r Summary Judgment; denying 33 Motion for Summary Judgment; denying 34 Motion for Summary Judgment. Ordered that the parties appear by counsel for a Scheduling Conference and Status Conference on 10/15/2014 12:00 PM in Judge Stamp Chambers before Senior Judge Frederick P. Stamp Jr. Signed by Senior Judge Frederick P. Stamp, Jr on 9/23/14. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JEFFREY J. MOORE and
SANDRA J. MOORE,
Plaintiffs,
v.
Civil Action No. 1:12CV123
(STAMP)
EQUITRANS, L.P.,
a Pennsylvania limited
partnership,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND AMENDED MOTION FOR SUMMARY JUDGMENT,
DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
SCHEDULING STATUS AND SCHEDULING CONFERENCE
I.
Procedural History
The plaintiffs, Jeffrey J. Moore and Sandra J. Moore (“the
Moores”), initially brought this action in the Circuit Court of
Marion County, West Virginia, against the defendant, Equitrans,
L.P. (“Equitrans”). The defendant subsequently removed this action
to this Court based on diversity jurisdiction. In their complaint,
the plaintiffs allege that predecessors of the defendant and the
plaintiffs entered into a valid right-of-way agreement to place a
16-inch pipeline (what the parties call the “H-557 pipeline”) on
the plaintiffs’ property.
However, the plaintiffs claim that the
defendant breached that contract by constructing approximately 700
feet of pipeline off of the designated route in the right-of-way
contract.
By way of relief, the plaintiffs are claiming damages
for breach of contract and trespass, and also seek an ejectment
order for the removal of the pipeline from their property.
After removal, the defendant sought leave of this Court to
file a counterclaim against the plaintiffs for protective easement.
This Court granted that motion. In its counterclaim, the defendant
contends that it did not mistakenly place the pipeline off of the
designated route. However, the defendant filed the counterclaim in
order to assert that if it did place the pipeline off of the
designated route, it has fulfilled the requirements of adverse
possession and thus is entitled to a prescriptive easement.
Thereafter,
deadlines.
the
parties
filed
a
joint
motion
to
extend
This was granted based on the parties’ indication that
a key witness, Revelee Henry Allen (“Allen”), who is a former
employee of the defendant, needed to change his testimony from his
previous
deposition.
Once
another
deposition
of
Allen
was
completed, the parties each filed motions for summary judgment.
The defendant filed both a motion for summary judgment and an
amended motion for summary judgment stating that the amended motion
was filed out of an abundance of caution as the defendant had
incorrectly labeled the first motion for summary judgment.
This Court then held a motion hearing at which the parties
orally argued their individual motions for summary judgment.
This
Court then entered an order vacating the scheduling order, as
pretrial
proceedings
were
set
to
2
occur
in
the
near
future.
Further, in that same order, this Court directed the parties to
submit further briefing solely on (1) the issues relating to the
jurisdiction of this Court under the Federal Energy Regulatory
Commission (“FERC”) to consider any possible condemnation claim and
(2) the process that the parties believe this Court should pursue
in considering the arguments made in the parties’ motions for
summary judgment, particularly as to how other claims would be
affected
by
any
condemnation
proceeding
involving
FERC.
Supplemental briefing was then submitted by the parties.
II.
A.
Facts
Defendant’s Motion for Summary Judgment
The defendant makes several arguments in its motion for
summary judgment, they are as follows:
1.
The H-557 pipeline was laid and replaced properly
according to the 1960 right-of-way agreement.
The
defendant argues that, despite the plaintiffs’ argument
that the pipeline had to be laid “exactly” along the
route in the right-of-way agreement, the actual agreement
uses the phrase “approximately along the route laid and
marked for same.” Thus, the pipeline only need to be
approximately along the route. Further, the defendant
argues that the right-of-way allowed it to make changes
in the location because of road construction or
relocations, ground slips or other causes beyond the
control of the defendant.
2.
The plaintiffs' claims are time barred because the
applicable statute of limitations for their claims would
have given them a maximum of ten years to file and they
filed over 15 years later. The replacement pipeline was
laid in 1995-96 and the plaintiffs did not file until
2012.
3.
If the Court finds that the pipeline was placed
incorrectly, the defendant is still entitled to a
3
prescriptive easement based on adverse possession
because: (1) Mr. Moore testified he knew where the
pipeline was on his property; (2) the defendant’s use of
the land was continuous and uninterrupted for at least
ten years prior to this action; (3) there is an
identifiable starting and ending point, thus the line and
width of measurement of the pipeline can be accurately
determined; and (4) use of the land will be the same as
it was during the time of prescription.
4.
The plaintiffs have not suffered any damages. The
defendant asserts that Mr. Moore has stated (1) that he
is only seeking damages if the pipeline is removed and
relocated and (2) that he is not making a claim for
diminution of value of his property. Thus, the defendant
asserts that the plaintiffs cannot maintain their claims
for trespass and breach of contract because they are only
seeking damages if the ejectment order is granted.
5.
Ejectment is not a proper remedy on the merits. The
defendant contends that the plaintiffs are bringing this
action as retaliation against EQT, a party not involved
in this action, for drilling on their property.
The
defendant asserts that the plaintiffs’ assertion that
they want the defendant to move a fifty year old pipeline
and dig new holes to place it right beside the current
location is not a reasonable remedy.
6.
Ejectment is not a proper remedy because the
defendant has the right to condemn the property at issue
pursuant to the Natural Gas Act. The defendant asserts
that it is only asserting this as an alternative to its
other arguments because it would require leave from this
Court to file a counterclaim for condemnation but that it
would be able to meet all the requirements if it were
granted such leave.
In
their
response,
the
plaintiffs
first
argue
that
the
defendant has created a material issue of fact because of its
alternative factual arguments, i.e. that it placed the pipeline
where it was supposed to be located and that it placed the pipeline
approximately where it was supposed to be located.
then make the following arguments:
4
The plaintiffs
1.
The movement of the pipeline was not “approximately”
along the right-of-way route. The evidence of the survey
shows that the defendant did not merely move the pipeline
two to five feet but rather moved the pipeline 20 to 30
to even 65 feet off of the agreed right-of-way. Further,
the plaintiffs contend that the evidence also shows that
the defendant kept the pipeline operational while
replacing it, and thus they could not have put the
replacement pipeline back in the same trench that was
still in use. Accordingly, the plaintiffs argue, because
the defendant unilaterally moved the pipeline, it
breached the right-of-way and that constitutes a
continuing trespass.
2.
There was no road construction, ground slips or
other causes beyond the control of the defendant that
would have allowed the defendant to change the location
of the pipeline under the right-of-way agreement.
3.
The plaintiffs filed within the statute of
limitations because of the “discovery rule.”
The
plaintiffs argue that they did not know or should not
have reasonably known of the misplacement of the pipeline
until 2012 when Mr. Moore’s attention was directed to the
pipeline because of the misplacement of drilling pads by
EQT.
The plaintiffs assert that (1) Mr. Moore asked
employees of the defendant whether the pipeline complied
with the right-of-way and they told him it did, he was
only tipped off to its location after they marked the
pipeline with flags and (2) the defendant’s own employees
did not know the pipeline’s location.
Finally, the
plaintiffs contend that because the pipeline was buried
the plaintiffs had no reason to know its exact location
but only knew generally where it had been placed in
1995-96.
4.
The misplacement of the pipeline constitutes a
continuing trespass either because (1) the defendant
placed the pipeline off of the agreed route, or (2)
because the defendant continues to flow its gas through
the misplaced pipeline.
5.
The defendant cannot meet the open and hostile
elements for adverse possession because the pipeline was
buried when it was relocated.
Also, the defendant’s
employees testified that they believed that the pipeline
was in the correct place until they reviewed the
construction file. Thus without that file the plaintiffs
5
would also not have known that fact.
Further, the
defendant was not hostile because it had a valid
right-of-way agreement with the plaintiffs.
6.
Ejectment is a proper remedy because under West
Virginia law ejectment is proper when trespass occurs no
matter how inconsiderable the damage is to the real
property.
7.
The defendant cannot make a valid condemnation
argument because it has committed a trespass on the
plaintiffs’ property and thus its request is done with
unclean hands and cannot be allowed.
In its reply, the defendant first reiterates its arguments as
to
the
difference
between
right-of-way agreement.
“exact”
and
“approximate”
in
the
Further, the defendant reiterates its
arguments as to why ejectment is an improper remedy in this case.
The defendant then goes on to argue that it was within the
right-of-way agreement clause because it was relocating the pipe
for “other causes beyond the control” of the defendant because the
pipeline was deteriorating.
Further, it contends that it did not
merely replace the pipeline solely for business reasons but also
because it is subject to the regulation of the FERC and had to
continue to provide the transmission of natural gas used by public
utilities.
As to the statute of limitations, the defendant reiterates its
argument that based on Mr. Moore’s testimony, he knew about the
pipeline replacement in 1997 at the latest. Further, the defendant
argues that its employees told Mr. Moore that the pipeline was in
the
correct
location
according
6
to
the
right-of-way
agreement
because it was and still is.
As to the plaintiffs’ continuing
trespass argument, the defendant contends first that it did not
trespass because the pipeline was correctly placed.
However, the
defendant also argues that the plaintiffs misconstrue the law on
continuing trespass because the trespass that began the running of
the statute of limitations was the actual placement of the pipeline
which was a discrete and complete act and no repeated wrong or
repeated injury occurred.
The defendant then argues that it has shown the hostile and
open elements of adverse possession.
First, as to the hostile
element, the defendant argues that the plaintiffs’ contentions fail
because if the defendant had permission to relocate/replace the
pipeline through the right-of-way, then there is no reason for this
litigation.
Thus, the plaintiffs cannot argue it both ways in
order to defeat differing claims by the defendant.
As to the
openness element, the defendant reiterates its previous arguments
as to why Mr. Moore had knowledge of the pipeline’s placement.
The
defendant
argues
that
because
the
taking
through
condemnation would only be a partial taking, the plaintiffs are
only
entitled
to
diminution
of
value
of
the
property.
The
defendant contends again that the plaintiffs have admitted that
there has been no diminution.
Further, the defendant asserts that
ejectment is improper because the FERC has primary jurisdiction
over
claims
for
trespass
and
ejectment
7
of
a
FERC
certified
pipeline,
thus,
the
defendant
cannot
remove
or
relocate
the
pipeline without permission from the FERC. Therefore, if the Court
is
inclined
to
grant
ejectment,
this
Court
must
refer
the
plaintiffs’ complaint to the FERC.
B.
Plaintiffs’ Motion for Summary Judgment
The
plaintiffs
first
argue
in
their
motion
for
summary
judgment that because the defendant chose the route for the
pipeline,
acquired
a
right-of-way
for
that
route,
and
then
referenced that route in the right-of-way agreement as “laid out
and marked for same,” it could not relocate the right-of-way, or
portions of it, thereafter without the plaintiffs’ consent.
The
plaintiffs contend that the evidence shows conclusively that is
what happened and thus, they are entitled to summary judgment.
Second, the plaintiffs argue that the defendant trespassed by not
gaining consent to place the pipeline outside of the right-of-way,
which is confirmed by the testimony of Allen, the former employee
of the defendant.
Finally, the plaintiffs argue that they are
entitled to ejectment because the defendant relocated the pipeline
in order to keep the pipeline in use while the defendant made
repairs and thus trespassed.
In its response, the defendant makes the same arguments as it
made
in
its
plaintiffs’
motion
response
for
to
summary
the
judgment
defendant’s
judgment.
8
and
motion
reply
for
to
the
summary
In their reply, the plaintiffs reiterate their arguments from
their summary judgment and from their response to the defendant’s
motion for summary judgment. The plaintiffs add that the defendant
cannot obtain condemnation because the defendant’s predecessor
obtained
the
right-of-way
and
this
right-of-way
prevents
the
defendant from asserting any condemnation power under 15 U.S.C.
§ 717f(h).
The plaintiffs also make a new contention that the
defendant waived its right to pursue relief from the FERC because
it never raised the jurisdictional issue in its notice of removal
and
never
raised
the
doctrine
of
primary
administrative
jurisdiction as an affirmative defense in its answer. Further, the
plaintiffs contend that if the defendant is not found to have
waived the issue, it does not qualify under 15 U.S.C. § 717r
because the defendant initiated the relocation, not the plaintiffs,
and because the plaintiffs’ injuries arise from the defendant’s
decision to relocate the pipeline not the Commissioner’s order to
do so. Finally, the plaintiffs assert that the doctrine of primary
administrative jurisdiction merely allows this Court to decline
jurisdiction, it does not divest this Court of jurisdiction.
C.
Supplemental Briefing
The defendant argues in its supplemental briefing that this
Court lacks jurisdiction to order an ejectment or abandonment of
the pipeline in question because the FERC has primary jurisdiction.
The defendant argues that the FERC has jurisdiction over the
9
dedication and abandonment of interstate natural gas pipelines and
thus courts do not have authority over plaintiffs’ claims in such
actions for ejectment, trespass, and removal.
The defendant cites
two cases for this assertion, Begay v. Public Service Company of
New Mexico, 710 F.Supp. 2d 1161, 1196 (2010) and Tampa Interstate
75 Ltd. P'ship v. Fla. Gas Transmission, 294 F.Supp. 2d 1277, 1279
(2003). Thus, the defendant asserts that because the plaintiffs in
this action are only seeking removal or relocation of the pipeline,
plus any damages of relocation or removal, this Court does not have
jurisdiction over those claims.
Next, the defendant addresses three procedural options for
this Court:
(1) refrain from exercising jurisdiction, dismiss
plaintiffs’ complaint or administratively close the case
subject to being reopened following a determination by
the FERC;
(2) determine whether a breach of the right-of-way
agreement or trespass has occurred and then, if so,
transfer to the FERC; or
(3) if the case goes to a jury trial and the plaintiffs
win on their claims, either allow amendment of the
pleadings by either party to proceed to condemnation/
inverse condemnation action pursuant to the Natural Gas
Act, remand to the state court for condemnation
proceedings as the property value is less than $3,000.00,
dismiss the case as to the condemnation action for the
parties to re-file as they deem necessary, or refer the
matter to the FERC to determine whether ejectment is
appropriate.
The
plaintiffs
argue,
in
response,
that
the
FERC
lacks
jurisdiction because plaintiffs’ ejectment action, if successful,
does not require the defendant to abandon the pipeline but only
10
relocate
it
to
the
area
described
description of the right-of-way.
in
the
metes
and
bounds
Further, the plaintiffs contend
that relocation is not equivalent to abandonment and thus, because
the Natural Gas Act uses the term “abandon” rather than “relocate,”
under
a
plain
meaning
analysis
of
the
statutory
terms,
the
plaintiffs’ requested relief may be ordered by this Court.
Further, the plaintiffs assert that even assuming the FERC has
jurisdiction, the FERC shares its jurisdiction with this Court
pursuant to the doctrine of primary jurisdiction.
As such, this
Court may retain this action or stay this action while the FERC
decides the issues under its jurisdiction.
The plaintiffs argue
that this Court should not stay the action and instead should
retain jurisdiction because the defendant waived its right to
pursue relief from the FERC and because the plaintiffs’ ejectment
action
does
expertise.
not
involve
questions
that
would
require
agency
In further support, the plaintiffs reiterate their
argument that the defendant has waived the FERC defense.
The
plaintiffs assert that this is shown by the defendant: (1) removing
the action to this Court without attempting to have the state court
remand to the FERC; (2) not raising the affirmative defense of FERC
jurisdiction
once
the
action
was
removed;
and
(3)
filing
a
counterclaim and moving for summary judgment in this Court, after
removal and the filing of an answer.
11
The plaintiffs also argue that Begay and Tampa Interstate are
distinguishable.
First, the plaintiffs argue that unlike this
action, the plaintiffs in Begay acknowledged that the trespassing
pipeline was located pursuant to a right-of-way that was consented
to by the plaintiffs.
Additionally, the plaintiffs assert, that
unlike this case, the defendant in Tampa Interstate raised the
FERC’s jurisdiction as an affirmative defense.
Finally, the
plaintiffs contend that the Court may retain jurisdiction because
the issues in this action are not those that require the expertise
of the FERC.
Rather, the plaintiffs assert that the issues of
trespass and ejectment are issues that this Court is familiar with
and thus, this Court may retain jurisdiction.
The
defendant
argues
in
its
reply
that
the
plaintiffs’
distinction between “relocation” and “ejectment” is not valid under
the
Natural
Gas
Act
because
either
relief
would
discontinue use of a portion of the H-557 pipeline.
necessarily
Further, the
defendant contends that it has not waived the FERC’s jurisdiction
because the FERC’s regulatory authority is bound by statute and
thus,
the
defendant
cannot
waive
the
FERC’s
jurisdiction.
Additionally, the defendant asserts that it did not waive the
jurisdictional argument because when this action was removed, it
still believed that the plaintiffs were seeking monetary damages.
Thus, the defendant contends, when it became clear that the
12
plaintiffs were only seeking removal or relocation of the pipeline,
the defendant raised the issue of jurisdiction.
The motions for summary judgment are now fully briefed.
For
the reasons set forth below, this Court finds that the defendant’s
first
motion
for
summary
judgment
is
denied
as
moot,
the
defendant’s amended motion for summary judgment is denied, and the
plaintiffs’ motion for summary judgment is denied.
III.
Applicable Law
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.” Temkin v. Frederick
County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied,
502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986)).
However, as the United States Supreme
Court noted in Anderson, “Rule 56(e) itself provides that a party
opposing a properly supported motion for summary judgment may not
rest upon the mere allegations or denials of his pleading, but
. . . must set forth specific facts showing that there is a genuine
issue for trial.”
Id. at 256.
“The inquiry performed is the
threshold inquiry of determining whether there is the need for a
trial-whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they
13
may reasonably be resolved in favor of either party.”
Id. at 250;
see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979) (Summary judgment “should be granted only in those cases
where it is perfectly clear that no issue of fact is involved and
inquiry into the facts is not desirable to clarify the application
of the law.” (citing Stevens v. Howard D. Johnson Co., 181 F.2d
390, 394 (4th Cir. 1950))).
Further, summary judgment is generally appropriate only after
adequate time for discovery.
Evans v. Technologies Applications &
Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996).
must
be
refused
where
the
nonmoving
“[S]ummary judgment
party
has
not
had
the
opportunity to discover information that is essential to his
opposition.”
Anderson, 477 U.S. at 250 n.5.
However, “great
weight [is placed] on the [Federal Rule of Civil Procedure] Rule
[56(d)] affidavit, believing that a party may not simply assert in
its brief that discovery was necessary and thereby overturn summary
judgment when it failed to comply with the requirements of Rule
[56(d)] to set out reasons for the need for discovery in an
affidavit.”
Evans, 80 F.3d at 961.
In reviewing the supported
underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
14
IV.
Discussion
Several arguments have been set forth by the parties in their
motions for summary judgment. This Court will review each argument
in turn.
A.
Language of the Right-of-Way Agreement
The parties disagree as to whether the H-557 pipeline was
replaced according to the terms of the right-of-way agreement. The
defendant asserts that the pipeline was placed “approximately”
along the route described in the right-of-way agreement and thus,
the defendant has not committed a trespass or a breach of contract.
The
plaintiffs,
however,
contend
that
the
placement
was
not
“approximate” and was actually 20 to 65 feet away from the rightof-way agreement’s contemplated route.
Further, the parties disagree as to the term of the right-ofway agreement which states that: “[Equitrans] shall have the right
to make such changes in the location of said right of way as from
time
to
time
may
be
necessary
or
advisable
owing
to
road
constructions or relocations, ground slips or other causes beyond
the control of the Grantee . . . .”
ECF No. 32 Ex. A.
The
plaintiffs assert that the defendant could not change the location
because there were no road constructions or relocations, or ground
slips.
The defendant, on the other hand, contends that the issue
that caused the replacement was beyond its control and thus the
relocation was allowed pursuant to the right-of-way agreement.
15
1.
“Approximately”
This case was removed to this Court pursuant to diversity
jurisdiction.
Accordingly, West Virginia law must be applied to
determine how this Court should interpret the contract and whether
or not it may grant a motion for summary judgment based on what
“approximately” means in the context of this action.
Harbor Court
Assocs. v. Leo A. Daly Co., 179 F.3d 147, 153 (4th Cir. 1999) (“In
this appeal, we are sitting in diversity; therefore, our task “is
to ‘rule upon state law as it exists and not to surmise or suggest
its expansion.’”) (quoting Burris Chemical, Inc. v. USX Corp., 10
F.3d 243, 247 (4th Cir. 1993)). Under West Virginia law, the trial
court determines whether “the terms of an integrated agreement are
unambiguous and, if so, [ ] construe[s] the contract according to
its plain meaning.
In this sense, questions about the meaning of
contractual provisions are questions of law.”
Fraternal Order of
Police, Lodge No. 69 v. City of Fairmont, 468 S.E.2d 712, 715 (W.
Va. 1996).
The West Virginia Supreme Court, however, couched that
finding as follows:
However, when a trial court’s answers rest not on plain
meaning but on differential findings by a trier of fact,
derived from extrinsic evidence as to the parties’ intent
with regard to an uncertain contractual provision, [those
questions are left for the jury].
The same standard
pertains whenever a trial court decides factual matters
that are essential to ascertaining the parties’ rights in
a particular situation (though not dependent on the
meaning of the contractual terms per se ).
In these
types of cases, the issues are ordinarily fact-dominated
rather than law-dominated . . . .
16
Id. (citation omitted).
If the trial court finds that the contract is ambiguous, “the
ultimate resolution of it typically will turn on the parties’
intent. Exploring the intent of the contracting parties often, but
not always, involves marshaling facts extrinsic to the language of
the contract document. When this need arises, these facts together
with reasonable inferences extractable therefrom are superimposed
on the ambiguous words to reveal the parties’ discerned intent.”
Id. at 716, fn. 7.
“Contract language usually is considered
ambiguous where an agreement’s terms are inconsistent on their face
or where the phraseology can support reasonable differences of
opinion as to the meaning of words employed and obligations . . .
‘A contract is ambiguous when it is reasonably susceptible to more
than one meaning in light of the surrounding circumstances and
after applying the established rules of construction.’” Id. at 716
(citation omitted).
“‘The mere fact that parties do not agree to
the construction of a contract does not render it ambiguous.
The
question as to whether a contract is ambiguous is a question of law
to be determined by the court.’”
Id. at 717-18 (citing Syl. pt. 1,
Berkeley Co. Pub. Ser. Dist. v. Vitro Corp., 162 S.E.2d 189 (W. Va.
1968)).
This Court finds that the contract term “approximately” is
ambiguous in the context of this case.
not based on the contract term per se.
17
However, this finding is
This Court makes that
finding because of the factual disagreement of the parties as to
what would fulfill the obligation of the defendant to place the
pipeline
“approximately”
along
the
route
of
the
right-of-way
agreement. Pursuant to Fraternal Order of Police, Lodge No. 69, as
stated above, this Court must find that a term is ambiguous if
“factual matters . . . are essential to ascertaining the parties’
rights in a particular situation (though not dependent on the
meaning of the contractual terms per se).”
468 S.E.2d at 715.
Thus, as here, where the parties disagree as to how far the
replaced pipeline is from the original designation of the right-ofway agreement, there could be differential findings by a trier of
fact as to what constitutes “approximately.”
As such, this Court
may not grant summary judgment for either party.
2.
Beyond Grantee Control
Based on the same West Virginia precedent as above, this Court
also finds that the applicability of the facts to this case will
play an important part in the interpretation of the language in the
right-of-way agreement which allows relocation if “beyond the
control of the Grantee.” Such a determination would be one for the
fact-finder as it requires a weighing of the factual matters
underlying this issue.
B.
Statute of Limitations
The applicable statute of limitation provision for tortious
damage to property is West Virginia Code § 55–2–12(a). Syl. pt. 1,
18
Family Savings and Loan, Inc. v. Ciccarello, 207 S.E.2d 157 (W. Va.
1974); State ex rel. Ashworth v. Road Comm’n, 128 S.E.2d 471 (W.
Va. 1962); Powderidge Unit Owners Ass’n v. Highland, 474 S.E.2d
872, 884 (W. Va. 1996).
The statute prescribes a two-year period
within which to institute an action after accrual of the right to
bring it.
1.
W. Va. Code § 55–2–12(a).
Discovery Rule
The parties argue as to whether or not Mr. Moore knew the
location of the pipeline, and that it was incorrectly placed, in
1997 or in 2012.
The plaintiffs argue that he could not have known
the location of the pipeline because (1) it is underground and thus
he would not have known exactly where the pipeline was placed in
1997; (2) he had no reason to question the placement because the
defendant’s employees told him it was placed correctly; and (3) he
finally had reason to question the placement in 2012 after issues
arose with the placement of drilling wells on his property by EQT
(a non-party).
The defendant argues that Mr. Moore knew, at the
latest, in 1997 where the new pipeline was placed in proximity to
the older pipeline.
The defendant asserts that Mr. Moore came up
to inspect the construction that was taking place and confirmed the
placement of the pipeline from 1995-1997.
The United States Court of Appeals for the Fourth Circuit has
held, in applying West Virginia law, that who should resolve a
statute of limitations defense depends on the facts of the case.
19
Where “ reasonable persons could draw different conclusions from
[the] facts . . . there is a material question of fact with regard
to when the plaintiffs’ right of action accrued so as to commence
the running of the statute of limitations, [thus] the matter [is]
clearly a question for the jury.”
Childers Oil Co., Inc. v. Exxon
Corp., 960 F.2d 1265, 1273 (4th Cir. 1992) (citation omitted). “In
other words, if resolution of a statute of limitations defense
presents a genuine question of material fact, a jury should resolve
it.
If not, a statute of limitations may be applied as a matter of
law.”
Id.
The following five-step analysis was laid out by the West
Virginia Supreme Court for determining whether a cause of action is
time-barred or has been tolled based on the discovery rule:
First, the court should identify the applicable statute
of limitation for each cause of action.
Second, the
court (or, if material questions of fact exist, the jury)
should identify when the requisite elements of the cause
of action occurred. Third, the discovery rule should be
applied to determine when the statute of limitation began
to run by determining when the plaintiff knew, or by the
exercise of reasonable diligence should have known, of
the elements of a possible cause of action, as set forth
in Syllabus Point 4 of Gaither v. City Hosp., Inc. [ ].1
Fourth, if the plaintiff is not entitled to the benefit
1
“In tort actions, unless there is a clear statutory
prohibition to its application, under the discovery rule the
statute of limitations begins to run when the plaintiff knows, or
by the exercise of reasonable diligence, should know (1) that the
plaintiff has been injured, (2) the identity of the entity who owed
the plaintiff a duty to act with due care, and who may have engaged
in conduct that breached that duty, and (3) that the conduct of
that entity has a causal relation to the injury.”
20
of the discovery rule, then determine whether the
defendant fraudulently concealed facts that prevented the
plaintiff from discovering or pursuing the cause of
action. Whenever a plaintiff is able to show that the
defendant fraudulently concealed facts which prevented
the plaintiff from discovering or pursuing the potential
cause of action, the statute of limitation is tolled.
And fifth, the court or the jury should determine if the
statute of limitation period was arrested by some other
tolling doctrine.
Only the first step is purely a
question of law; the resolution of steps two through five
will generally involve questions of material fact that
will need to be resolved by the trier of fact.
Dunn v. Rockwell, 689 S.E.2d 255, 265 (W. Va. 2009) (emphasis
added).
Pursuant to Dunn, this Court finds that the discovery defense
forwarded by the plaintiffs in response to the defendant’s statute
of limitations argument is a question for the jury. At this point,
it is unclear when Mr. Moore was aware that the replaced pipeline
was not within the described metes and bounds of the right-of-way
agreement.
Both sides have provided evidence that Mr. Moore could
have known as early as 1995-1997 or as late as 2012.
this
Court
may
not
grant
summary
judgment,
Accordingly,
because
material
questions of fact still exist and thus, the discovery rule is an
issue left for the trier of fact.
2.
Continuing Trespass
The plaintiffs also argue that the statute of limitations does
not bar their recovery because the misplacement of the pipeline
constitutes a continuing trespass either because (1) the defendant
placed the pipeline off of the agreed route, or (2) because the
21
defendant continues to flow its gas through the misplaced pipeline.
The defendant contends that it did not trespass because the
pipeline was correctly placed.
However, the defendant also argues
that the plaintiffs misconstrue the law on continuing trespass
because the trespass that began the running of the statute of
limitations was the actual placement of the pipeline which was a
discrete and complete act and no repeated wrong or repeated injury
occurred.
The following passage from
Whiteman v. Chesapeake Appalachia,
L.L.C., 729 F.3d 381, 386 (4th Cir. 2013), sets out the applicable
trespass law:
West Virginia, common law trespass is “an entry on
another man’s ground without lawful authority, and doing
some damage, however inconsiderable, to his real
property.” Hark v. Mountain Fork Lumber Co., 127 W. Va.
586, 591–92, 34 S.E.2d 348, 352 (1945). A continuing
trespass occurs, for example, when one person leaves on
the land of another, with a duty to remove it, “a
structure, chattel, or other thing.”
Restatement
(Second) of Torts § 160 (1965). Regarding remedies for
actions in trespass, the general rule in West Virginia is
that “a mere trespass to real estate will not be enjoined
when the injury . . . is susceptible of complete
pecuniary compensation and for which the injured person
has an adequate legal remedy.” Wiles v. Wiles, 134 W.
Va. 81, 91, 58 S.E.2d 601, 606 (1950). Nevertheless, in
West Virginia, “[a] court of equity has jurisdiction to
enjoin a continuing trespass.” Tate v. United Fuel Gas
Co., 137 W. Va. 272, 278–79, 71 S.E.2d 65, 69–70 (1952).
Notwithstanding the above, a claim for trespass under
West Virginia common law can only lie if one’s entry upon
the land of another -- or one’s leaving a “thing” upon
the land of another -- is “without lawful authority.”
Hark, 34 S.E.2d at 352.
22
Several
courts
have
held,
and
West
Virginia
precedent
supports, that there is a distinction between a permanent trespass
and a continuing trespass.
In Mims v. United States, 349 F.Supp.
839 (W.D. Va. 1972), the United States District Court for the
Western District of Virginia held that “where the trespass is
permanent in nature, the entire cause of action occurs when the
original trespass is committed.”
Id. at 844 (citing Rankin v.
DeBare, 205 Cal. 639, 271 P. 1050 (1928); Kafka v. Bozio, 191 Cal.
746, 218 P. 753, 29 A.L.R. 833 (1923); Williams v. Southern Pacific
R. R. Co., 150 Cal. 624, 89 P. 599 (1907); Bacon v. Glenn, 120 Cal.
App. 112, 7 P.2d 718 (1932)).
In comparison, however, the West
Virginia Supreme Court found that “the concept of a continuing tort
requires a showing of repetitious, wrongful conduct.
Moreover,
. . . a wrongful act with consequential continuing damages is not
a continuing tort.”
Ricottilli v. Summersville Memorial Hospital,
425 S.E.2d 629, 632 (W. Va. 1992) (finding that the continuing tort
defense may not be used where the wrongful act is fixed but damages
may continue to accrue after the wrongful act).
The following four cases show West Virginia’s view on the
application of the continuing tort defense in negligence law.
The
final case that will be reviewed by this Court, Betterview, is
further persuasive authority that mirrors more closely the facts of
this case.
23
a.
Miller v. Lambert
“[T]he
continuing
tort
theory
is
inapposite
where
the
plaintiff claims fixed acts by the defendant which do not involve
a continuing wrong
171 (1995).
. . . .”
Miller v. Lambert, 467 S.E.2d 165,
For instance, in Miller, the plaintiffs had made
claims for trespass against their neighbors regarding the placement
of
fill
material
on
the
plaintiffs’
property
in
1983,
the
construction of a fence on the plaintiffs’ property in 1984, and
the placing of additional fill material on the property in 1986 in
an effort by the defendants to restore their riverbank property.
Id. at 170.
However, the plaintiffs did not bring any action
against the defendants (their neighbors) until 1990.
Id.
The
court reasoned that each action by the defendants was distinct and
did not constitute a continuing trespass, and thus the first
trespass occurred in 1983 and the last trespass occurred in 1986.
Id. at 171.
Further, the court found that even if the defendants’
actions amounted to a continuing trespass, the last trespass claim
occurred in 1986 because “[e]ven where a tort involves a continuing
or repeated injury, the cause of action accrues at the date of the
Id. at 171.
last injury.”
b.
Roberts v. West Virginia American Water Co.
Additionally, in Roberts, the Court found that where the
plaintiff
was
claiming
damages
for
the
defendant’s
faulty
installation of a waterline and not for any continuing malfunction
24
of the installation or for further misconduct on the part of the
defendant, the plaintiff could not claim the continuing tort
defense.
Roberts v. West Virginia American Water Co., 655 S.E.2d
119, 124 (2007). The plaintiff had claimed that the erosion of his
road over time, about a four-year period, was the direct result of
the damage done by the defendant in installing his waterline.
at 122.
weeks
However, the plaintiff had testified that within three
of
the
slippage.
Id.
the
Id.
completion
of
the
project,
he
had
noticed
the
The West Virginia Supreme Court found that despite
plaintiff’s
claims,
he
had
filed
after
the
statute
of
limitations expired because “a continuing tort with respect to
negligence actions is continuing tortuous conduct, that is, a
continuing violation of a duty owed the person alleging injury,
rather than continuing damages emanating from a discrete tortuous
act.”
Id. at 124.
Thus, the plaintiff had failed to show
“continuing misconduct which serve[d] to toll the statute of
limitations.
c.
Id.
Handley v. Town of Shinnston
Finally, where the “damage did not occur all at once but
increased as time progressed; each injury being a new wrong . . .
[and] a tort involves a continuing or repeated injury, the cause of
action accrues at, and limitations begin to run from the date of
the last injury, or when the tortious overt acts cease.”
Handley
v. Town of Shinnston, 289 S.E.2d 201, 202 (W. Va. 1982).
25
For
instance, in Handley, the plaintiffs had noticed in 1972 that the
city’s waterline under their property was leaking and notified the
city.
Id.
Thereafter, the line continued to leak and eventually
caused a crack to appear on the surface of the plaintiffs’ yard in
1976.
Id.
The waterline leaked until 1978 when it was eventually
removed, however, even after it was removed the crack in the
plaintiffs’ yard continued to expand and created a large crater.
Id. The plaintiffs thus brought an action in 1979 against the town
and asserted a continuing trespass defense to the two-year statute
of limitations.
Id.
The West Virginia Supreme Court found that a
continuing trespass did occur spanning from at least 1972 to 1978
because there was a continued or repeated injury and the damage
increased as the injury was committed. Id. Accordingly, the court
found that the plaintiffs’ action could not be dismissed based on
the applicable statute of limitations.
d.
Id.
EQT Gathering Equity, LLC v. Fountain Place, LLC
In Fountain Place, the United States District Court for the
Southern District of West Virginia applied West Virginia precedent
regarding the continuing tort defense to the plaintiff’s claim that
the defendant’s act of placing fill dirt over a pipeline in 2001
constituted a continuing trespass on the plaintiff’s easement to
the defendant’s property.
EQT Gathering Equity, LLC v. Fountain
Place, LLC, CIV.A. 2:09-0069, 2011 WL 5419452, *1 (S.D. W. Va. Nov.
9, 2011).
The plaintiff specifically argued that the defendant’s
26
failure to remove the fill dirt from the pipeline and easement was
a continuing breach of duty to the plaintiff causing repeated and
continuing interference with the plaintiff’s pipeline until the
pipeline was relocated in 2008.
Id.
The court found that the
plaintiff could not assert the continuing trespass doctrine because
the breach of duty alleged occurred at the time the fill was placed
and “no further duty or injury arose following that date.”
*3.
Id. at
The court thus reasoned that the injury was complete when the
filling ceased and the plaintiff was then charged with pursuing its
rights within the applicable two-year statute of limitations.
Id.
e. Betterview Investments, LLC v. Pub. Serv. Co. of Colorado
A pipeline located outside of the proscribed area of an
“historical easement” effects a continuing trespass. Betterview
Investments, LLC v. Pub. Serv. Co. of Colorado, 198 P.3d 1258,
1262-63 (Colo. Ct. App. 2008).
the
Colorado
Court
of
However, that rule, promulgated by
Appeals,
is
subject
to
the
following
exception: “‘[W]here the property invasion will and should continue
indefinitely because defendants, with lawful authority, constructed
a socially beneficial structure intended to be permanent,’ the
property owner cannot sustain an action for a continuous trespass.”
Id. at 1263 (citation omitted).
f.
Application
In this case, it seems that the defendant would fall within
the exception rather than the overarching rule of Betterview if the
27
defendant can show that it had lawful authority to construct the
relocated pipeline “approximately” close to the original pipeline.
The
other
defendant
two
has
elements
are
constructed
a
met
pursuant
socially
to
Betterview:
beneficial
the
structure,
a
pipeline that delivers an important utility; and the structure was
intended to be permanent, there was no express agreement by the
parties as to an end date.
See id. (finding that where the parties
had an express agreement as to an end date, the structure was not
permanent).
Thus, according to Betterview, there is still a
material factual issue as to the doctrine of continuing trespass
that must be left to a finder of fact.
However, this Court construes West Virginia’s application of
the continuing trespass doctrine as more narrow than that of the
Colorado court.
See EQT Gathering Equity, LLC v. Fountain Place,
LLC, CIV.A. 2:09-0069, 2011 WL 5419452 at *2 (S.D. W. Va. Nov. 9,
2011) (noting that the doctrine “is often misconstrued by injured
parties as applying more broadly than intended.”).
As such, as in
this case where there was an alleged wrongful act with continuing
damages, the plaintiffs may not rely on the doctrine of continuing
trespass
argument.
to
contend
the
defendant’s
statute
of
limitations
Further, in considering Fountain Place and Handley, the
plaintiffs’ continuing trespass claim should fail because the
plaintiffs are requesting removal of the impediment and are arguing
that a continuing trespass is occurring only because the impediment
28
(the pipeline) remains in allegedly the wrong location.
Id. (The
plaintiff in Fountain Place was complaining about fill dirt that
the defendant would not remove). Thus, in this action, because the
replacement pipeline was finalized at the latest in 1997, the
statute of limitations would have begun to accrue at that time
notwithstanding other exceptions.
This Court, however, has found above that the plaintiffs’
discovery rule argument is still valid as it is a question for the
trier of fact.
As such, this Court’s finding that the continuing
trespass doctrine is inapplicable in this case does not warrant a
granting of the defendant’s motion for summary judgment.
C.
Adverse Possession
The defendant contends that if it is found to have wrongfully
placed
the
pipeline,
prescriptive easement.
it
may
claim
the
property
through
a
The defendant asserts that the third
element required for a prescriptive easement is met in this case
because Mr. Moore was aware of the pipeline as early as 1995.
The
plaintiffs, on the other hand, contend that Mr. Moore was not aware
of the incorrect location of the pipeline because the pipeline was
buried when it was relocated.
Further, the plaintiffs assert that
the defendant’s own employees were unaware of the actual location
of the pipeline until they reviewed the construction file, as part
of this litigation, themselves.
Thus, Mr. Moore cannot be held to
have known something that the employees themselves did not know.
29
Pursuant to West Virginia law, in West Virginia, a claim of
prescriptive easement requires proof through clear and convincing
evidence of the following elements:
(1) the adverse use of another’s land;
(2) that
the
adverse
use
was
continuous and
uninterrupted for at least ten years;
(3) that the adverse use was actually known to the owner
of the land, or so open, notorious and visible that a
reasonable owner of the land would have noticed the use;
and
(4) the reasonably identified starting point, ending
point, line, and width of the land that was adversely
used, and the manner or purpose for which the land was
adversely used.
O'Dell v. Stegall, 703 S.E.2d 561, 579 (2010).
This Court finds that the third element is still a genuine
issue of material fact for a jury to consider.
As stated in
previous sections of this opinion, the parties are clearly in
contention as to whether or not Mr. Moore was aware that the
pipeline was relocated in the incorrect place.
Further, as the
plaintiffs note, the pipeline was buried and thus, Mr. Moore was
unlikely to be able to determine the actual location of the
pipeline after the initial construction ceased.
Lastly, the
deposition testimony of the defendant’s employee, Mr. Allen, is
reason enough to deny summary judgment at this stage.
changed
his
testimony
after
reviewing
construction
Mr. Allen
files
and
testified that he now believes the pipeline was not located along
the right-of-way.
See ECF No. 38-2, 38-3.
Thus, there are still
genuine issues of material fact as to (1) whether Mr. Moore
30
actually knew that the pipeline was incorrectly relocated or (2)
whether the incorrect location of the pipeline was “notorious and
visible” to Mr. Moore.
D.
Ejectment as a Remedy
1.
Ejectment: Based on the Merits
The defendant contends that ejectment is not a proper remedy
based on the merits of this action. The defendant asserts that the
wrong allegedly committed is not equal to the remedy sought and
that Mr. Moore is only pursuing this action out of vengeance for
other wrongs committed against by another company, EQT (not a party
to this action).
The plaintiffs responded that ejectment is a
proper remedy pursuant to West Virginia law as they have argued
that the defendant has trespassed and continues to trespass on
their land.
“Ejectment is an action for the protection of one with good
legal title to the land who is entitled to immediate possession.”
Marthens v. B & O R. Co., 289 S.E.2d 706, 712 (W. Va. 1982).
Ejectment has been held to be a proper equitable remedy where it is
possible that the plaintiff could recover a money judgment, but
that he would not be afforded complete relief by such a recovery.
Tate v. United Fuel Gas Co., 71 S.E.2d 65, 70 (1952).
Further,
“[h]istorically, West Virginia has always accorded the right to a
jury trial in an action for ejectment.”
Marthens, 289 S.E.2d at
712 (citing W. Va. Code § 55–4–17 (1929); Davis Colliery Co. v.
31
Westfall, 90 S.E. 328 (W. Va. 1916); Garrett v. South Penn Oil Co.,
66 S.E. 741 (W. Va. 1909)).
In this action, it appears that ejectment is a possible
equitable remedy pursuant to West Virginia law as the plaintiffs
believe
that
a
monetary
remedy
may
not
make
them
whole.
Additionally, for the reasons provided in this order’s discussion
regarding condemnation and primary jurisdiction, this Court finds
that the issue of ejectment may be a proper remedy.
However, if
the plaintiffs seek to eject the pipeline permanently and thus
cause an abandonment of the pipeline by the defendant, this Court
would then be required to transfer this action to the FERC.
2.
Ejectment: Condemnation
The parties disagree as to whether or not the defendant has
the right to condemn the plaintiffs’ property if this Court finds
that the defendant does not a prescriptive easement and/or that the
plaintiffs are entitled to relief through ejectment. The defendant
argues that if this Court were to find that the defendant does not
have a prescriptive easement (which the Court only needs to find if
the pipeline was incorrectly placed), the defendant meets the three
requirements for condemnation under the Natural Gas Act: (1) it is
a holder of a certificate of public convenience and necessity (the
defendant provided proof through its exhibits); (2) the defendant
needs to acquire an easement, right-of-way, land, or other property
necessary to the operation of its pipeline system; and (3) the
32
defendant has been unable to acquire those interest from the owner.
On the other hand, the plaintiffs argue that the defendant does not
qualify for condemnation because the defendant already has a rightof-way on the land and will only lose that right-of-way because of
its trespass on the plaintiffs’ property.
further
contend
that
the
defendant
Thus, the plaintiffs
cannot
seek
condemnation
pursuant to the unclean hands doctrine.
This issue, however, will not arise until this Court would
grant relief by ejectment as only then the defendant would no
longer have an agreement with the plaintiffs and thus would qualify
for condemnation under the Natural Gas Act.
Title 15, United States Code, Section 717f(h), “Right of
eminent domain for construction of pipelines, etc.” states as
follows:
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
33
courts shall only have jurisdiction of cases when the
amount claimed by the owner of the property to be
condemned exceeds $3,000.
(emphasis added).
“[E]minent domain statutes are strictly construed to exclude
those rights not expressly granted.”
Transwestern Pipeline Co. v.
17.19 Acres of Prop. Located in Maricopa Cnty., 550 F.3d 770,
774-75 (9th Cir. 2008); see Humphries v. Williams Natural Gas Co.,
48 F.Supp. 2d 1276, 1281 (D. Kan. 1999); see also Northern Border
Pipeline Co. v. 86.72 Acres of Land, 144 F.3d 469, 471 (7th Cir.
1998) (Northern Border); Northwest Pipeline Corp. v. The 20 x
1,430' Pipeline Right of Way, 197 F.Supp. 2d 1241, 1243–1244 (E.D.
Wash. 2002); Northern Border Pipeline Co. v. 127.79 Acres of Land,
More or Less in Williams County, N.D., 520 F.Supp. 170, 173
(D.C.N.D. 1981). Thus, if strictly construing the language “cannot
acquire by contract, or is unable to agree with the owner of
property,”
the
contract
at
issue
here
would
disqualify
the
defendant from being granted the right to condemn the plaintiffs’
property for the use of the pipeline.
Further, where the gas company committed a wrong after meeting
the three requirements of § 717f(h) but not gaining approval for
condemnation from the federal courts, the United States District
Court for the District of Kansas held that because the gas company
derived its authority solely from the Natural Gas Act, “it [was]
not entitled to the benefits of § 717f(h) [because] it [did] not
34
adhere to the procedure it sets forth.
chose
not
to
follow
that
consequences of its own acts.”
procedure
Because [the gas company]
it
cannot
escape
the
Humphries v. Williams Natural Gas
Co., 48 F.Supp. 2d 1276, 1282 (D. Kan. 1999) (discussing the
allegations of trespass against the gas company).
The Court held
as such because it believed that Congress did not intend “the
condemnation authority granted by § 717f(h) to cloak holders of
certificates of public convenience and necessity with impunity to
commit trespasses and other civil wrongs.”
Id.
Based on this
limited authority, the defendant would be unable to use § 717f(h)
at this time, but would rather only be able to raise condemnation
if this Court found that the defendant trespassed, and the only
relief available was to eject the defendant from the plaintiffs’
property.
This Court cannot make such a finding at this time and
thus this argument is premature.
E.
FERC and Primary Jurisdiction
The defendant argues that this Court lacks jurisdiction to
order an ejectment or abandonment of the pipeline in question
because the FERC has primary jurisdiction.
The defendant asserts
that the FERC has jurisdiction over the dedication and abandonment
of interstate natural gas pipelines and thus, courts do not have
authority over plaintiffs’ claims in such actions for ejectment,
trespass, and removal.
Additionally, the defendant contends that
the plaintiffs’ distinction between “relocation” and “ejectment” is
35
not valid under the Natural Gas Act because either relief would
necessarily discontinue use of a portion of the H-557 pipeline.
Further, the defendant contends that it cannot waive an argument as
to FERC’s jurisdiction because it is statutory.
The plaintiffs argue that the FERC lacks jurisdiction because
plaintiffs’ ejectment action, if successful, does not require the
defendant to abandon the pipeline but only requires relocation.
Further, the plaintiffs assert that even assuming the FERC has
jurisdiction, the FERC shares its jurisdiction with this Court
pursuant to the doctrine of primary jurisdiction.
As such, this
Court may retain this action or stay this action while the FERC
decides the issues under its jurisdiction. Further, the plaintiffs
argue
that
the
defendant
has
waived
the
FERC
defense.
The
plaintiffs assert that this is shown by the defendant: (1) removing
the action to this Court without attempting to have the state court
remand to the FERC; (2) not raising the affirmative defense of FERC
jurisdiction
once
the
action
was
removed;
and
(3)
filing
a
counterclaim and moving for summary judgment in this Court, after
removal and the filing of an answer.
“[P]rimary
jurisdiction,”
.
.
.
counsels
that
when
a
determinative issue, although properly before an Article III court,
is “within the special competence of an administrative agency . . .
[the court is enabled to make] a referral to the agency, staying
further
proceedings
so
as
to
36
give
the
parties
reasonable
opportunity to seek an administrative ruling.”
In re Bulldog
Trucking, Inc., 66 F.3d 1390, 1399-1400 (4th Cir. 1995) (quoting
from Reiter v. Cooper, 507 U.S. 258, 268-69 (1993)).
When primary jurisdiction is implicated, the district court is
not divested of jurisdiction and has the option of staying the
civil action or dismissing it without prejudice “if the parties
would not be ‘unfairly disadvantaged’ by such dismissal.”
507 U.S. at 268-69.
Reiter,
There is no precedent in the Fourth Circuit
which expresses reservations as to the scope of application of this
doctrine, and the argument that it should be used sparingly has
been rejected.
See Potomac Elec. Power Co. v. Panda Brandywine,
L.P., 99 F.Supp. 2d 681, 682-83 (D. Md. 2000) (finding that the
Fourth Circuit did not limit the scope of the application of the
primary jurisdiction doctrine in In re Bulldog Trucking, Inc. and
thus that there was no precedent to find that it should be used
sparingly by district courts).
A district court should consider referring a case under the
doctrine of primary jurisdiction in cases “involving technical and
intricate questions of fact and policy that Congress has assigned
to a specific agency.”
New York State Elec. & Gas Corp. v. New
York Indep. Sys. Operator, Inc., 168 F.Supp. 2d 23, 26 (N.D.N.Y.
2001) (citation omitted).
There is no fixed rule for determining
whether or not a case should be referred under this doctrine.
However, some courts use a four factor analysis to help in making
37
such a determination.
Id. (citing MCI Telecomms. Corp. v. John
Mezzalingua Assocs., 921 F.Supp. 936, 941 (N.D.N.Y. 1996) (citing
Nat’l Commc’ns Ass’n, Inc. v. Am. Tel. & Tel. Co., 46 F.3d 220, 223
(2d Cir. 1995)).
The four factors are: “(1) whether the question
at issue is within the conventional experience of judges or whether
it involves technical or policy considerations within the agency’s
particular field of expertise, (2) whether the question at issue is
particularly within the agency’s discretion, (3) whether there
exists a substantial danger of inconsistent rulings, and (4)
whether a prior application to the agency has been made.”
Nat’l
Communications Ass’n, 46 F.3d at 223. “The court must also balance
the advantages of applying the doctrine against the potential costs
resulting
from
proceedings.”
complications
and
delay
in
the
administrative
Id.
Primary jurisdiction does not apply to legal questions “within
the conventional competence of the courts.”
New York State Elec.
& Gas Corp. v. New York Indep. Sys. Operator, Inc., 168 F.Supp. 2d
23, 26 (N.D.N.Y. 2001) (citation omitted).
However, a different
analysis is used if mutual jurisdiction exists and some questions
are outside the “conventional competence” of the court:
The threshold question in a primary jurisdiction case is
“whether both the court and an agency have jurisdiction
over the same issue.” Where mutual jurisdiction exists,
referral to an agency is appropriate “‘even though the
facts after they have been appraised by specialized
competence serve as a premise for legal consequences to
be judicially defined.’”
. . .
“By referring to
administrative agencies matters that involve ‘technical
38
or policy considerations which are beyond the court’s
ordinary competence and within the agency’s particular
field of expertise,’ preliminary referral secures
‘[u]niformity and consistency in the regulation of
business.’”
Id.
This Court finds that at this time, it should not divest
jurisdiction to the FERC.
Other courts have found and this Court
finds now, that an abandonment under the Natural Gas Act only
occurs “whenever a natural gas company permanently reduces a
significant
portion
of
a
particular
service.”
Columbia
Gas
Transmission Corporation v. F.E.R.C., 448 F.3d 382, 386 (D.C. Cir.
2006).
In this action, the plaintiffs assert in their complaint
that they are seeking damages and ejectment of the pipeline.
However, through briefing, the plaintiffs contend that they are not
seeking permanent ejection but rather only relocation of the
pipeline to its proper place.
Given this concession by the
plaintiffs, the Court cannot find that the relief sought by the
plaintiffs would lead to a permanent reduction of a significant
portion of the defendant’s service.
As such, as long as the
relocation of the pipeline, if the plaintiffs are found to be
entitled to relief, would return to “normal” at a later time and
only be a “temporary service interruption”, this Court is not
required to refer this action to the FERC.
As
such,
this
Court
finds
that
it
Id.
is
not
divested
of
jurisdiction and this action may proceed as the issue is not one
39
particularly within FERC’s discretion. Nat’l Communications Ass’n,
46 F.3d at 223.
Further, the trespass and breach of contract
claims that remain are within the “conventional competence” of the
Court as this Court regularly deals with such issues.
New York
State Elec. & Gas Corp., 168 F. Supp. 2d at 26.
Thus, the
defendant’s motion for summary judgment must be denied.
V.
Conclusion
Based on the analysis above, the defendant’s motion for
summary judgment is DENIED AS MOOT.
Further, the defendant’s
amended motion for summary judgment is DENIED.
Finally, the
plaintiffs’ motion for summary judgment is DENIED.
Additionally, this Court vacated the scheduling order in this
action.
As such, this Court feels it would be beneficial to hold
a status and scheduling conference.
Therefore, it is ORDERED that
the parties appear by counsel on October 15, 2014 at 12:00 p.m. in
the chambers of Judge Frederick P. Stamp, Jr., Federal Building,
1125 Chapline Street, Wheeling, West Virginia 26003.
The undersigned judge is currently scheduled to be in trial on
the date of the status and scheduling conference.
that
the
trial
does
not
proceed,
the
status
In the event
and
scheduling
conference will be rescheduled to 1:15 p.m. on this same date.
The Court will permit those out-of-town attorneys having their
offices further than forty (40) miles from the point of holding
court to participate in the conference by telephone.
40
However, any
such attorney shall advise the Court as soon as possible prior to
the conference of his or her intention to participate by telephone
and shall (1) inform all counsel of his or her appearance by
telephone; (2) confer with other out-of-town attorneys to determine
if they wish to appear by telephone; (3) advise the Court of the
name of the attorney who will initiate the conference call and all
such attorneys appearing by telephone; and (4) initiate a timely
conference telephone call with such attorneys to the Court at
304/233-1120 at the time of the scheduled hearing. If the attorneys
cannot reach agreement as to the initiator of the call, the Court
will make that determination.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
September 23, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
41
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