United States District Court, N.D. Mississippi, Aberdeen Division
UNITED STATES OF AMERICA upon the relation and for the use of the TENNESSEE VALLEY AUTHORITY, PLAINTIFF
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
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 . 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.
Factual and Procedural Background
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.
filed its Complaint  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 , 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
February 23, 2015, TVA filed a motion for entry of an order
of immediate possession  of the condemned easement and
right-of-way. On February 24, 2015, the Court entered an
Order of Possession  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  at 1. On March 11, 2015,
TVA filed a notice  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 ; Freedom
TD's Answer & Am. Answer [17 & 18]; Liberty
Tire's Answer with Jury Demand . 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 .
motion is filed pursuant to Rule 12(c), or in the alternative
Rule 12(f)(1), of the Federal Rules of Civil Procedure.
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
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).
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.
Analysis and Discussion
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.
Lack of Authority
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
 ¶¶ 3, 7; Liberty Tire's Answer 
¶¶ 3, 7.
alleges in its complaint that the authority for the taking is
the TVA Act. PL's Compl.  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 ...