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United States v. An Easement and Right-of-Way Over 3.28 Acres of Land

United States District Court, N.D. Mississippi, Aberdeen Division

March 6, 2017

UNITED STATES OF AMERICA upon the relation and for the use of the TENNESSEE VALLEY AUTHORITY, PLAINTIFF
v.
AN EASEMENT AND RIGHT-OF-WAY OVER 3.28 ACRES OF LAND, MORE OR LESS, IN LEE COUNTY, MISSISSIPPI; and FREEDOM TD PRODUCTS, INC. f/k/a Mac's Tire Recyclers, Inc.; LIBERTY TIRE RECYCLING, LLC; and DON B. CANNADA, trustee DEFENDANTS

          MEMORANDUM OPINION GRANTING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO OBJECTIONS AND DEFENSES TO THE TAKING ASSERTED BY DEFENDANTS FREEDOM TD PRODUCTS, INC. AND LIBERTY TIRE RECYCLING, LLC: RESERVING ISSUE OF JUST COMPENSATION FOR JURY TRIAL

         The United States, on behalf of the Tennessee Valley Authority, brings this action for the taking of property under the power of eminent domain and for the ascertainment of just compensation to the owners and parties in interest. Presently before the Court is Plaintiff the United States, on behalf of the Tennessee Valley Authority's motion for judgment on the pleadings upon or to strike the objections and defenses to the taking asserted by Defendants Freedom TD Products, Inc. and Liberty Tire Recycling, LLC [23]. Defendants Freedom TD Products, Inc. and Liberty Tire Recycling, LLC have not filed a response to the motion, and the time for doing so has now passed. The motion is now ripe for review. Upon due consideration, the Court finds that the motion is well taken and should be granted and that the issue of just compensation should be resolved at the jury trial set in this cause for August 21, 2017.

         I. Factual and Procedural Background

         In the case sub judice, the United States, on behalf of the Tennessee Valley Authority ("TVA"), took an electric power transmission line easement and right-of-way across 3.28 acres of an approximately 51-acre tract of land in Lee County, Mississippi. Defendant Freedom TD Products, Inc. ("Freedom TD") owned the subject property in fee simple by virtue of a deed recorded as Instrument No. 2011009869 in the office of the Chancery Clerk of Lee County, Mississippi. Defendant Liberty Tire Recycling, LLC ("Liberty Tire") was the holder of an option to purchase said property and a right of first refusal to purchase said property in conjunction with a related parcel of property pursuant to a Memorandum of Monofill Disposal and Option Agreement dated August 11, 2011, recorded as Instrument No. 2011009871 in the office of the Chancery Clerk of Lee County; Liberty Tire also had a lien on said property as the beneficiary of a Deed of Trust and Security Agreement recorded as Instrument No. 2011009872 in the office of the Chancery Clerk of Lee County.

         TVA filed its Complaint [1] on January 22, 2015, and asserted its rights to condemn the disputed property in compliance with the procedures mandated by Rule 71 of the Federal Rules of Civil Procedure. On the same day, and also in compliance with Rule 71, TVA filed a Declaration of Taking [2], wherein it declared the authority for the taking and the public uses for which the property was sought; TVA also deposited $16, 150 with the registry of this Court as its estimate of just and liberal compensation for the easement and right-of-way acquired.

         On February 23, 2015, TVA filed a motion for entry of an order of immediate possession [8] of the condemned easement and right-of-way. On February 24, 2015, the Court entered an Order of Possession [11] directing that

[TVA], as agent of the United States of America, be put into immediate possession of the property described in the Declaration of Taking filed in this action to the extent necessary to permit [TVA] to carry on any of its operations described in the pleadings filed herein, and that the Defendants in such action surrender possession of the said property to [TVA] accordingly.

Ct.'s Order of Possession [11] at 1. On March 11, 2015, TVA filed a notice [16] of disclaimer of interest executed by Defendant Don B. Cannada, the designated trustee in the Deed of Trust. Freedom TD and Liberty Tire subsequently filed answers with defenses and objections to the taking, as well as jury demands for a trial by jury on all issues. See Liberty Tire's Jury Demand [10]; Freedom TD's Answer & Am. Answer [17 & 18]; Liberty Tire's Answer with Jury Demand [20]. On July 8, 2016, TVA filed the present motion for judgment on the pleadings upon or to strike the objections and defenses to the taking asserted by Freedom TD and Liberty Tire [23].

         II. Legal Standards

         TVA's motion is filed pursuant to Rule 12(c), or in the alternative Rule 12(f)(1), of the Federal Rules of Civil Procedure.

         After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). A Rule 12(c) motion is governed by the same standards as a Rule 12(b)(6) motion. See Brown v. CitiMortgage, Inc., 472 F.App'x 302, 303 (5th Cir. 2012) (per curiam) (citing St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)). "A motion brought pursuant to [Rule] 12(c) is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (per curiam) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1367, at 509-10 (1990)).

         Pursuant to Rule 12(f), "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). "[A] plaintiff desiring early resolution of an affirmative defense may seek to strike it under [Rule] 12(f)." C&C Inv. Props., LLC. v. Trustmark Nat'l Bank, 838 F.3d 655, 660-61 (5th Cir. 2016) (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1381 (3d. ed. 2004) (explaining that the "insufficient defense" language in Rule 12(f) had been read to allow a challenge to the legal sufficiency of an affirmative defense)). "Striking an affirmative defense is warranted if it cannot, as a matter of law, succeed under any circumstance." United States v. Renda, 709 F.3d 472, 479 (5th Cir. 2013). However, a Rule 12(f) motion must be filed "either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading." See Fed. R. Civ. P. 12(f)(2). Because TVA was served with the two answers at the latest on March 30, 2015, see Answers [17, 18, 19, 20] and it filed its motion on July 8, 2016, the motion to strike is untimely filed and shall not be considered. Thus, the Court must construe the motion exclusively as one filed for judgment on the pleadings under Rule 12(c), though the Court may, sua sponte, strike any defenses it determines to be improper pursuant to Rule 12(f). See Fed. R. Civ. P. 12(f)(1).

         III. Jurisdiction

         This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and the Tennessee Valley Authority Act of 1933 ("TVA Act"), 16 U.S.C. §§ 831-831ee.

         IV. Analysis and Discussion

         TVA's motion for judgment on the pleadings argues that the objections and defenses presented in the answers filed by Liberty Tire and Freedom TD fail as a matter of law. These objections and defenses are as follows: (a) lack of authority; (b) not a public necessity; (c) not a public use; (d) insufficient property description; (e) no need for immediate possession; (f) Fifth Amendment violation; (g) failure to state a claim under Rule 12(b)(6); (h) failure to adequately state appurtenant right, title, and interest being sought; and (i) reservation of unpled defenses. As stated, Freedom TD and Liberty Tire have not filed responses and/or affidavits or other evidence opposing TVA's motion. Nor do they cite any authority for their arguments in their respective answers. For the reasons stated below, the Court finds that TVA's motion for judgment on the pleadings pursuant to Rule 12(c) must be granted.

         (a) Lack of Authority

         First, Freedom TD and Liberty Tire allege in their answers that "[t]he [c]omplaint fails to adequately state the authority for the taking by omitting findings by resolution of the Board of Directors ('Board') of [TVA] that the taking of the subject property is a public necessity and is needed for the public use" and that "[TVA] is without authority to condemn the subject property because it failed to engage in good[-]faith negotiations before instituting this action[] and failed to make a bona fide offer of just compensation." Freedom TD's Am. Answer [18] ¶¶ 3, 7; Liberty Tire's Answer [20] ¶¶ 3, 7.

         TVA alleges in its complaint that the authority for the taking is the TVA Act. PL's Compl. [1] at 1. The TVA Act provides that TVA "[s]hall have power in the name of the United States of America to exercise the right of eminent domain, and in the purchase of any real estate or the acquisition of real estate by condemnation proceedings, the title to such real estate shall be taken in the name of the United States of America, and thereupon all such real estate shall be entrusted to [TVA] as the agent of the United States to accomplish the purposes of this chapter." 16 U.S.C. § 831c(h). This power is expressly applicable to "acquire real estate for the construction of dams, reservoirs, transmission lines, power houses, and other structures ... at any point along the Tennessee River, or any of its tributaries . . . [, and TVA may] condemn all property that it deems necessary for carrying out the purposes of this chapter . . . ." 16 U.S.C. § 831c(i). The TVA Act provides that Congress' clear purpose was to grant TVA "all the power needed to acquire lands by purchase or by condemnation which it deems necessary for ...


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