United States of America v. 0.64 Acre of Land, More or Less, Situate in Logan County, State of West Virginia et al

Filing 29

MEMORANDUM OPINION AND ORDER denying the United States' 25 MOTION for default judgment; the trial of this matter, and any subsequently consolidated action, is scheduled for 9:30 a.m. on 4/14/2015; the United States to report to the court concerning the suitability of consolidating this action for trial with what appears to be a related case, United States v. 0.19 Acre of Land, 2:14-17688, by 2/13/2015; the United States to send a copy of this memorandum opinion and order, and n otice of any intervening consolidation order, to the potential interested parties by 2/25/2015; the United States is given leave to file a dispositive motion by 2/25/2015, serving a copy thereof on each of the potential interested parties; and the United States may withdraw its demand for a jury trial pursuant to Rule 38(d), by 4/1/2015. Signed by Judge John T. Copenhaver, Jr. on 2/5/2015. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
UNITED STATES OF AMERICA
Plaintiff,
v.

Civil Action No. 2:14-17685

0.64 ACRE OF LAND, MORE OR LESS,
SITUATE IN LOGAN COUNTY,
STATE OF WEST VIRGINIA, and
W. P. HENRITZE,
Defendants
MEMORANDUM OPINION AND ORDER
Pending is the United States’ motion for default
judgment, filed November 13, 2014.

I.

On June 5, 2014, the United States instituted this
action with its complaint in condemnation.

The take will

facilitate implementation of the Island Creek Flood Damage
Reduction Project on the Island Creek channel of the Guyandotte
River.

The parcels being taken, as platted on Schedule D to the

complaint in condemnation, consist of lots 218, 218-2, 218-3,
and 218-4.

The legal description of the parcels is found in the

declaration of taking, which was also filed June 5, 2014.

On June 9, 2014, the court entered an order permitting
the United States to deposit a check in the amount of $8,250 as
estimated just compensation for the taking of the estates and
interests proceeded against.

That sum is presently being held

in the registry.
Attached to the complaint in condemnation at schedule
E is a list of potentially interested parties.

They are as

follows:
Unknown heirs, executors, administrators, devisees,
legatees and assigns of W.P. Henritze, deceased.
Billie Jean Henritze Nance, Widow
Betty Jane Henritze Ayers, Widow
John Clarke Wallace, Jr., Co-Trustee,
Katherine Osborne Wallace, Co-Trustee,
John S. Henritze Testamentary Trust
John Clarke Wallace, Jr.
Jayne Dalziel Wallace
Susan Stuart Wallace (care of her attorney in fact)
Katherine Osborne Wallace
West Virginia Real Estate
Logan County Assessor
The United States has certified that it published
notice to the unknown heirs, executors, administrators,
devisees, legatees and assigns of W.P. Henritze and the unknown

2

spouse of W.P. Henritze inasmuch as a diligent inquiry and
search for those individuals did not produce their whereabouts.
Specifically, on August 12, 2014, the United States filed an
affidavit of publication from Norman O. Sinclair, Regional
Director of the Logan Banner.

Mr. Sinclair averred that the

following notice, addressed to the heirs of W.P. Henritze and
the unknown spouse of W.P. Henritze, was published in the Logan
Banner three successive times, namely, on July 23, July 30, and
August 6, 2014:
You are hereby notified that a complaint in
condemnation and a declaration of taking have
heretofore been filed in the Office of the Clerk of
the above-named Court in an action to condemn fee
simple title to Tract No. 218, 218-2, 218-3 and
and 218-4 in Logan County, West Virginia.
(Dckt. Ent. 21-1 at 3).

The notice appears to comply with the

requirements of Federal Rule of Civil Procedure 71.1(d)(2)(A).1

1

Rule 71.1(d)(2)(A) recites the contents of the notice to
be provided to named defendants in the case, stating, “Each
notice must name the court, the title of the action, and the
defendant to whom it is directed. It must describe the property
sufficiently to identify it.” The notice must also contain the
following: (1) a statement that the action is to condemn
property, (2) the interest to be taken, (3) the authority for
the taking, (4) the uses for which the property is to be taken,
(5) that the defendant may serve an answer on the plaintiff's
attorney within 21 days after being served with the notice, (6)
that the failure to serve an answer constitutes consent to the
taking and to the court's authority to proceed with the action
and fix the compensation, and (7) that a defendant who does not
serve an answer may file a notice of appearance.

3

Direct notice also appears to have been sent to the
balance of the potentially interested parties set forth in the
listing above.

While each of those notices have not been filed

by the United States, there is a form notice to the Logan County
Assessor that is found on the docket at entry 4.

The court

assumes this same form of notice was sent to the potentially
interested parties, and provides pertinently as follows:
You are hereby notified that a Complaint In
Condemnation and Declaration of Taking have heretofore
been filed in the Office of the Clerk of the abovenamed Court in an action to condemn certain interests
for public use in and to the properties described in
Schedule “B” of the Declaration of Taking attached
hereto and made a part hereof.
The authority for the taking of the land and the
public uses for which said land is taken are set forth
in Schedule “A” of the Declaration of Taking attached
hereto and made a part hereof.
The interests being taken in the properties
described in Schedule “B” attached hereto and are set
forth in Schedule “C” attached hereto and made a part
hereof. The estimated just compensation therefor is
set forth in the Declaration of Taking attached hereto
and made a part hereof.
You are further notified that if you have any
objection or defense to the taking of the property in
which you may have or claim some interest, you are
required to serve upon plaintiff's attorney at the
address herein designated within twenty-one (21) days
after service of this notice upon you, exclusive of
the date of service, an answer identifying the
property in which you claim to have an interest,
stating the nature and extent of the interest claimed
and stating all your objections and defenses to the
taking of the property. A failure to so serve an
answer shall constitute a consent to the taking and to
the authority of the Court to proceed to hear the

4

action and to fix the just compensation, and shall
constitute a waiver of all defenses and objections not
so presented.
You are further notified that if you have no
objection or defense to the taking, you may serve upon
plaintiff's attorney a notice of appearance
designating the property in which you claim to be
interested, and thereafter you shall receive notice of
all proceedings affecting the said property.
You are further notified that at the trial of the
issue of just compensation, whether or not you have
answered or served a notice of appearance, you may
present evidence as to the amount of compensation to
be paid for the property in which you have an interest
and you may share in the distribution of the award of
compensation.
(Dckt. Ent. 4 at 2).

If this notice was not provided to all

potential claimants, the United States is directed to advise the
court forthwith.
The United States has filed signed return receipt
cards from each of the potentially interested parties to whom it
sent direct notice, with the exception of Jayne Dalziel Wallace,
for whom the receipt was returned unclaimed.

The final return

receipt card, for John Clarke Wallace, Jr., individually and in
his co-trustee capacity, was filed January 20, 2015, reflecting
delivery to him on January 10, 2015.

The only party responding

to the complaint in condemnation is the Auditor of the State of
West Virginia, who was dismissed by agreed order on September
24, 2014.

5

II.

Rule 71.1 governs this proceeding.

See Fed. R. Civ.

P. 71.1(a) (“These rules govern proceedings to condemn real and
personal property by eminent domain . . . .”).

Inasmuch as the

Rule 71.1(e)(2), 21-day period for filing an answer has now
elapsed, the court must address whether the United States is
entitled to the relief sought, namely, a default judgment.

The

question appears to be covered by Rule 71.1(e)(3):
(3) Waiver of Other Objections and Defenses; Evidence
on Compensation. A defendant waives all objections
and defenses not stated in its answer. No other
pleading or motion asserting an additional objection
or defense is allowed. But at the trial on
compensation, a defendant -- whether or not it has
previously appeared or answered -- may present
evidence on the amount of compensation to be paid and
may share in the award.
Fed. R. Civ. Proc. 71.1(e)(3).

Inasmuch as Rule 71.1(e)(3)

provides for a defendant in default to nevertheless present
evidence respecting the amount of just compensation, default
judgment is not authorized.

It is, accordingly, ORDERED as

follows:
1.

That the motion for default judgment be, and hereby
is, denied;

2.

That the trial of this matter, and any subsequently
consolidated action, be, and hereby is, scheduled for

6

9:30 a.m. on April 14, 2015, to ascertain just
compensation;
3.

That the United States be, and hereby is, directed to
report to the court, on or before February 13, 2015,
concerning the suitability of consolidating this
action for trial with what appears to be a related
case, namely, United States v. 0.19 Acre of Land,
2:14-17688;

4.

That the United States be, and hereby is, directed to
send a copy of this memorandum opinion and order, and
notice of any intervening consolidation order, to the
potential interested parties on February 25, 2015;

5.

That the United States be, and hereby is, given leave
to file a dispositive motion no later than February
25, 2015, serving a copy thereof on each of the
potential interested parties; and

6.

That, in the event the United States desires to
withdraw its demand for a jury trial pursuant to Rule
38(d), it do so on or before April 1, 2015.

7

The Clerk is requested to transmit this memorandum
opinion and order to all counsel of record and to any
unrepresented parties.
DATED:

February 5, 2015

John T. Copenhaver, Jr.
United States District Judge

8