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Nexus Gas Transmission, LLC v. City of Green

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

March 6, 2018

NEXUS GAS TRANSMISSION, LLC, Plaintiff,
v.
CITY OF GREEN, et. al., Defendants.

          JOHN R. ADAMS, JUDGE

          REPORT & RECOMMENDATION

          Thomas M. Parker, United States Magistrate Judge

         On February 23, 2017, pursuant to 28 U.S.C. § 636 and Local Rules 72.1 and 72.2(a), the Honorable Judge John R. Adams referred plaintiff's motion for temporary restraining order and preliminary injunction (ECF Doc. 396) to the undersigned for report and recommendation. ECF Doc. 397. Because the law of this case disposes of the main arguments raised in opposition to plaintiff's motion for preliminary injunction and because the factors weigh in favor of injunctive relief, I recommend that the court GRANT plaintiff's motion. Pursuant to Fed.R.Civ.P. 65(c), I further recommended that the Court require Nexus to give security in the amount of $100, 000.00 cash or surety bond.

         I. Introduction

         On December 28, 2017, the court issued a memorandum opinion and order granting partial summary judgment to plaintiff, Nexus Gas Transmission, LLC (“Nexus”). The court ruled that Nexus has the right of eminent domain to condemn the easements at issue in this matter. ECF Doc. 366, Page ID# 3972. In the same order, the court granted a motion for injunctive relief citing the Fourth Circuit decision of East Tennessee Natural Gas Co., v. Sage, 361 F.3d 808, 828 (4th Cir. 2008), “once a district court determines that a gas company has the substantive right to condemn property under the [Natural Gas Act], the court may exercise equitable power to grant the remedy of immediate possession through the issuance of a preliminary injunction.” In following the Sage decision, the court noted that “[t]he procedure set forth in Sage represents the approach taken by virtually every federal court that has considered the issue[.]” Gulf Crossing Pipeline Co., LLC v. 86.36 Acres of Land, More or Less, Situated in Caddo, Bossier, Claiborne, Union, Ouachita, Morehouse, Richland & Madison Parisher, LA., No. CIV.A. 08-689, 2008 WL 2465892, at *3 (W.D. La. June 18, 2008). By exercising equitable power to grant the remedy of immediate possession through a preliminary injunction pursuant to Fed.R.Civ.P. 65, the Court also rejected defendants' argument that the Natural Gas Act did not grant “quick take” authority. ECF Doc. 366, Page ID# 3973.

         Nexus now moves for a preliminary injunction to obtain immediate access to property owned by Defendant City of Oberlin (“Oberlin”). On February 23, 2018, the court conducted a telephone conference with both parties and directed them to submit briefs addressing how the law of the case and specifically the Court's December 28th order impacted the current motion.[1]On March 2, 2018, Oberlin filed an opposition to Nexus's motion for temporary restraining order and preliminary injunction. ECF Doc. 400. However, Oberlin did not squarely address the impact of the Court's December 28th order. In fact, Oberlin asserted arguments that were rejected by the Court in that order. On March 5, 2018, Nexus replied in support of its motion for temporary restraining order and preliminary injunction. ECF Doc. 401. Nexus also moves to expedite the briefing schedule for objections to this report and recommendation. ECF Doc. 402.

         II. Law of the Case

         The law of the case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Arizona v. California, 460 U.S. 605, 618-619 (1983). The purpose of the doctrine is two-fold: (1) it enables courts “to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit, ” 18 C. Wright, A. Miller & E. Cooper, Fed. Practice & Procedure: Jurisdiction 2d, § 4478, at 637-639 (2002); and it “promotes the finality and efficiency of the judicial process by ‘protecting against the agitation of settled issues.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting 1B J. Moore, et al., Moore's Federal Practice ¶ 0.404[1], at 118 (1984). The law of this case determines several of the arguments raised by Oberlin in opposition to the current motion as further explained below.

         III. Preliminary Injunction Standard

         Four factors must be considered when deciding whether to grant an injunction:

(1) whether the movant has a strong likelihood of success on the merits;
(2) whether there is a threat of irreparable harm to the movant;
(3) whether others will suffer substantial harm as a result of the injunction, ...

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