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Nexus Gas Transmission, LLC v. City of Green

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

April 5, 2018

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

          MEMORANDUM OF OPINION AND ORDER

          JOHN R. ADAMS, UNITED STATES DISTRICT JUDGE

         On 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.

         Initially, 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.

         When 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)).

         Likelihood of Success on the Merits

         This 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.

         Irreparable Harm

          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.

         The 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.

         Harm to Others

         The 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.

         Public ...


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