United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION
R. ADAMS U.S. DISTRICT JUDGE
matter comes before the Court on a motion for partial summary
judgment (Doc. 3) filed by Plaintiff Nexus Gas Transmission,
LLC and a motion for preliminary injunction also filed by
Nexus. Doc. 4. For the reasons that follow, Nexus'
motions are granted.
Facts & Procedure
matter was filed on October 2, 2017. On that same date, Nexus
filed the pending motions noted above. Within those motions,
Nexus seeks to establish its right of condemnation and an
injunction “authorizing it to immediately possess: (i)
only those Defendant-properties that are located within the
“eight-mile stretch of the pipeline that would run
through [the City of] Green” (see City of Green,
Ohio v. NEXUS Gas Transmission, LLC, 6th Cir. No.
17-4016 (Nov. 22, 2017 Order, Doc. #28-1 at 4)) (the
“Stay Area”); and (ii) only for the limited
purposes of conducting surveys for on-the-ground alignment of
the pipeline and associated rights-of-way boundaries and to
perform wetlands and environmental surveys.” Doc. 365
at 1 (revising the scope of the requested injunctive relief.
judgment is appropriate only when there is no genuine issue
of material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The moving party must demonstrate to the court through
reference to pleadings and discovery responses the absence of
a genuine issue of material fact. Celotex, 477 U.S.
at 323. This is so that summary judgment can be used to
dispose of claims and defenses which are factually
unsupported. Id. at 324. The burden on the nonmoving
party is to show, through the use of evidentiary materials,
the existence of a material fact which must be tried.
Id. The court's inquiry at the summary judgment
stage 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 may reasonably
be resolved in favor of either party.”
Anderson, 477 U.S. at 250.
court's treatment of facts and inferences in a light
favorable to the nonmoving party does not relieve that party
of its obligation “to go beyond the pleadings” to
oppose an otherwise properly supported motion for summary
judgment under Rule 56(e). See Celotex, 477 U.S. at
324. The nonmoving party must oppose a proper summary
judgment motion “by any kinds of evidentiary material
listed in Rule 56(c), except the mere pleadings themselves
...” Id. Rule 56(c) states, “... [t]he
judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law.” A
scintilla of evidence in favor of the nonmoving party is not
determining whether to issue a temporary restraining order or
a preliminary injunction, this Court considers the following
(1) whether the movant has a ‘strong' likelihood of
success on the merits; (2) whether the movant would otherwise
suffer irreparable injury; (3) whether issuance of a
preliminary injunction would cause substantial harm to
others; and (4) whether the public interest would be served
by issuance of a preliminary injunction.
McPherson v. Michigan High Sch. Athletic Ass'n,
119 F.3d 453, 459 (6th Cir.1997) (en banc) (quoting
Sandison v. Michigan High Sch. Athletic Ass'n,
64 F.3d 1026, 1030 (6th Cir.1995)). This Court must balance
the four factors while noting that none should be considered
a prerequisite to the grant of a preliminary injunction.
See United Food & Commercial Workers Union, Local
1099 v. Southwest Ohio Reg'l Transit Auth.,
163 F.3d 341, 347 (6th Cir. 1998). Moreover, a plaintiff must
present clear and convincing evidence in support of the four
factors. Procter & Gamble Co. v. Stoneham, 140
Ohio App.3d 260, 267-68 (Ohio Ct. App. 2000).
Law and Analysis
Right of Condemnation 15 U.S.C. § 717f(h)
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.
upon the above, courts have defined three requirements that
must be satisfied to demonstrate the substantive right to
condemn: “(1) that [the company] holds a FERC
certificate authorizing the relevant project, (2) that the
land to be taken is necessary to the project; and (3) that
the company and the landowners have failed to agree on a
price for the taking.... In addition to showing an inability
to agree on a price with the landowner, [the company] must
also establish that it engaged in good faith negotiations
with the landowner.” Transwestern Pipeline Co. v.
17.19 Acres of Prop. ...