United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
R. ADAMS, UNITED STATES DISTRICT JUDGE
March 16, 2018, this Court adopted the Report and
Recommendation of the Magistrate and granted Plaintiff Nexus
Gas Transmission's motion for a preliminary injunction to
access property in the City of Oberlin. Doc. 405. Nexus now
seeks a similar injunction to access property owned by John
Selzer and Judy Jane Hamrick. Doc. 406. The landowners have
opposed the motion, and Nexus has replied. Upon review, the
motion is GRANTED.
the landowners have asserted that this Court lacks
jurisdiction to entertain Nexus' motion. Specifically,
the landowners contend that a pending appeal before the Sixth
Circuit deprives this Court of jurisdiction. However, the
Sixth Circuit dismissed the landowners appeal on April 3,
2018. Accordingly, there is no jurisdictional bar to the
Court's consideration of Nexus' motion.
determining whether to issue 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.
See Deck v. City of Toledo, 29 F.Supp.2d 431, 433
(N.D. Ohio 1998) (citing Garlock Inc. v. United Seal,
Inc., 404 F.2d 256, 257 (6th Cir. 1968)).
of Success on the Merits
Court has previously granted Nexus' motion for partial
summary judgment on the issue of condemnation. Doc. 366.
Accordingly, the law of the case establishes a likelihood of
success of merits of Nexus' claim.
Similar to the prior injunction considered by the Court,
Nexus has submitted evidence that it would incur roughly
$530, 000 in losses if the property at issue must be
“skipped” due to an inability to access the
property in line with Nexus' existing schedule. As was
noted in the prior R&R adopted by this Court, even these
financial losses may be considered irreparable when such loss
cannot be recouped through the litigation. See
Transcontinental Gas Pipeline Co., LLC v. Permanent Easement
for 2.59 Acres, 709 Fed.Appx. 109, 113 (3d Cir. 2017).
There is no dispute that Nexus will be unable to recoup such
a loss through litigation. Accordingly, Nexus' monetary
loss is properly categorized as irreparable harm.
landowners, however, contend that Nexus has not set forth
sufficient evidence to justify the loss of $530, 000. The
landowners contend that Nexus has used a different loss
figure in other litigation and therefore this Court should
find that Nexus' evidence lacks credibility. However, the
landowners do nothing to explain the difference in
information available to Nexus in its prior filing in October
of 2017 and the information currently available. Moreover,
even if this Court were to find that Nexus' loss
calculation is somehow imprecise, there can be no dispute
that “skipping” the landowners' property
would result in significant monetary loss to Nexus that it
would have no ability to recoup. Accordingly, Nexus has
demonstrated irreparable harm.
landowners assert that they will suffer far more harm than
Nexus. In support, the landowners assert that trees will be
felled, soil will be compacted, and the pipeline will be
installed. However, given that FERC has authorized the
pipeline and that this Court has concluded that Nexus may
utilize eminent domain, the harm proposed by the landowners
is inevitable. Whether trees are felled now or after the
landowners have been paid for their property does not impact
that the alleged harm will occur. Moreover, given the
existence of this eminent domain proceeding, unlike Nexus,
the landowners are assured that they will be fairly
compensated for any losses they incur. Accordingly, this
prong also favors granting the injunction.