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Nexus Gas Transmission, LLC v. City of Green

United States District Court, N.D. Ohio, Eastern Division

December 28, 2017

Nexus Gas Transmission, LLC, Plaintiff,
v.
City of Green, Ohio, Defendants.

          MEMORANDUM OF OPINION

          JOHN R. ADAMS U.S. DISTRICT JUDGE

         This 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.

         I. Facts & Procedure

         This 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.

         II. Legal Standards

         Summary 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.

         The 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 sufficient.

         When determining whether to issue a temporary restraining order or a preliminary injunction, this Court considers the following four factors:

(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).

         III. Law and Analysis

Right of Condemnation 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.

         Based 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. ...


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