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Enbridge Pipelines LLC v. Burris

August 3, 2010

ENBRIDGE PIPELINES (ILLINOIS) LLC, PLAINTIFF,
v.
JOSEPH E. BURRIS AND SALLIE J. BURRIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM & ORDER

I. Introduction

Before the Court is plaintiff Enbridge Pipelines (Illinois), LLC's ("Enbridge") Motion for Summary Judgment (Doc. 39) against defendant Henry S. Portz. Defendant Portz has filed an opposing Response (Doc. 45), to which Plaintiff has filed its Reply (Doc. 53). In further support of its motion, Plaintiff was granted leave to file/cite additional authority (see Doc. 56) for the Court's consideration.

In its April 30, 2009 order (Doc. 34), the Court granted in part Defendants' Motion to Consolidate Cases (Doc. 17), whereby the following two cases, Enbridge v. Portz, No. 08-cv-841-DRH-DGW and Enbridge v. Hortenstein, No. 08-cv-842-DRH-PMF, were consolidated into Enbridge v. Burris, No. 08-cv-697-DRH-CJP, (with Burris becoming the lead case). The Court found all three cases involved the requisite "common question of law or fact" to warrant consolidation.*fn1 The Court additionally ordered that all filings were to thereafter be made in Enbridge v. Burris, No. 08-cv-697-DRH-CJP. As such, Plaintiff has filed three separate motions for summary judgment against the three separate sets of Defendants. This Order involves only Plaintiff's arguments regarding its complaint for declaratory judgment against Henry S. Portz, as originally filed in Enbridge v. Portz, No. 08-cv-841-DRH, prior to the consolidation of the three aforementioned cases.

Plaintiff has brought a declaratory judgment action (Doc. 2, Case No. 08-cv-841-DRH) against defendant Henry S. Portz on the basis of diversity jurisdiction.

28 U.S.C. § 1332. In particular, Plaintiff seeks a declaration that a certain pipeline right-of-way ("easement") is valid and enforceable according to its terms. Defendant contests the current validity of the easement, arguing, among other things, abandonment and expiration.

II. Background

This matter centers around a right-of-way easement running across two separate tracts of land (Tracts 12-078-1 and 12-079-3) currently owned by Defendant (Doc. 40, ¶ 3; Doc. 45, ¶ 3). The easement was originally recorded with the Fayette County Recorder on August 9, 1939, reflecting the right-of-way granted by the title holders (who preceded Defendant in title) to The Texas-Empire Pipe Line Company (Doc. 40, ¶ 4, Ex. 1 - Affidavit of Norm Henenberg, ¶ 5 & Ex. A). The easement (hereinafter "the Portz easement") granted and conveyed "the right to lay, operate and maintain a pipe line for the transportation of oil, gas, gasoline and/or other fluids," as well as "the right to lay, operate and maintain, adjacent to and parallel with the first, a second pipe line..." (Id.). The Portz easement also granted certain ingress/egress and maintenance rights (Id.). Further, the Portz easement was to pass to the grantee's "successors and assigns so long as such pipe lines or other structures are maintained..." (Id.).

Plaintiff has submitted various documents to establish its claim of ownership over the Portz easement. First is a certified copy of an Assignment, executed on September 22, 1983 and recorded with the Fayette County Recorder, from Texaco-Cities Service Pipe Line Company (which indicates it was formerly known as The Texas-Empire Pipe Line Company) to Williams Pipe Line Company, assigning the former's interests in the Portz easement (Doc. 40, ¶ 5, citing Henenberg Aff., ¶ 6, Ex. B). Second is a certified copy of an Assignment of Easement, executed on June 23, 2004 and also recorded with the Fayette County Recorder, from Magellan Pipeline Company, LLC (indicating it was formerly known as Williams Pipe Line Company, LLC and Williams Pipe Line Company) to Central Illinois Pipeline Company, LLC, again assigning the former's interests in the Portz easement (Id. at ¶ 6, citing Henenberg Aff., ¶ 7, Ex. C). The assignee, Central Illinois Pipeline Company, LLC, thereafter merged into Enbridge, with Enbridge as the surviving entity (Id. at ¶ 7, citing Henenberg Aff., ¶ 8, Ex. D). Plaintiff has also submitted authentic copies of the Certificates of Merger, filed on December 15, 2006 with the Secretaries of State of Delaware and Oklahoma, to substantiate its assertion that it owns the Portz easement, as the current successor-in-interest to the original grantee (Id. at ¶¶ 7 & 10, citing Henenberg Aff., ¶¶ 8-9).

At present, Plaintiff is engaged in what it describes as "a multimillion dollar pipeline project that will cross portions of Central and Southern Illinois" (Id. at ¶ 2, citing Henenberg Aff., ¶ 1). Plaintiff intends to incorporate portions of an existing pipeline right-of-way acquired as part of its merger with the former Central Illinois Pipeline Company, which includes the two tracks of land now owned by Defendant (Id. at ¶¶ 2-3). The matter is ultimately before the Court because Defendant has contested Plaintiff's assertion of rights granted by the Portz easement.

III. Subject Matter Jurisdiction

As an initial inquiry, the Court must resolve the issue of whether it has proper subject matter jurisdiction over Plaintiff's suit before it proceeds to the merits. Defendant opposes Plaintiff's assertion that diversity jurisdiction exists under 28 U.S.C. § 1332. Section 1332 requires that the parties be completely diverse and the matter in controversy exceed $75,000, exclusive of interest and costs. LM Ins. Corp. v. Spaulding Enterprises Inc., 533 F.3d 542, 547 (7th Cir. 2008). Defendant concedes that there is proper diversity of citizenship between Parties, but contests that the amount in controversy exceeds $75,000 (Doc. 45, pp. 2 & 4).

"Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle, 7 Wall. 506, 514 19 L.Ed. 264 (1868); Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94 (1998). When challenged, the party invoking federal jurisdiction bears the burden of demonstrating that the jurisdictional requirements have been met. Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997). As the Seventh Circuit clarified in Meridian Security Insurance Co. v. Sadowski, if the material allegations regarding the amount in controversy are contested, the party seeking federal forum must prove the relevant jurisdictional facts "by a preponderance of the evidence." If that party is thereafter able to establish the jurisdictional facts, dismissal (or remand) upon the basis of lack of subject matter jurisdiction is appropriate only if the district court finds it "legally certain" that either "the recovery (from plaintiff's perspective) or cost of complying with the judgment (from defendant's) will be less than the jurisdictional floor...." LM Ins. Corp. v. Spaulding Enter., Inc., 533 F.3d 542, 547 (7th Cir. 2008) (quoting Meridian Security, 441 F.3d 536, 543 (7th Cir. 2006)).

Here, Defendant believes Plaintiff's conclusory allegation that "the pecuniary result of the declaratory judgment... exceeds the sum or value of $75,000.00" is inadequate to establish the amount in controversy (Doc. 45, pp. 2 & 4). Moreover, Defendant argues that the portion of the Henenberg Affidavit (Doc. 40, Ex. 1 - Henenberg Aff., ¶ 2), cited by Plaintiff in support of its assertion that the amount in controversy has been met, is also wholly conclusory and merely parrots Plaintiff's allegation. Instead, Defendant points out the fact that the Portz easement itself is only of nominal value (the grant of the easement was conveyed for $121.00 back in 1939, see Doc. 40, Ex. 1- Henenberg Aff., Ex. A). Aside from the insignificant face value of the Portz easement, Defendant opposes the notion that Plaintiff sets forth any further allegations establishing that the amount in controversy exceeds the jurisdictional amount.

As the proponent of federal jurisdiction, it is now Plaintiff's burden to show by a preponderance of the evidence that the amount in controversy likely exceeds the jurisdictional threshold amount of $75,000. Although it does not address the issue of jurisdiction directly in its Reply (Doc. 53) to Portz's Response, Plaintiff does address it in its Reply (Doc. 54, p. 5, n.3) to the summary judgment response made by the Hortenstine defendants (Doc. 46), which, as this is a consolidated case, can be deemed as part of the record for the Court's consideration herein.*fn2 See Bloch v. Frischholz, 587 F.3d 771, 784 (7th Cir. 2009) ("If the court elects to rely on legal arguments and evidence not incorporated in, or submitted with, the summary judgment motion, the court is obligated to consider the entire record 'to ensure that the record reveals no issue of material fact.' ") (quoting Nabozny v. Podlesny, 92 F.3d 446, 450 (7th Cir.1996) (quoting Brown v. United States, 976 F.2d 1104, 1110 (7th Cir.1992))).

Plaintiff, in support of its assertion that the amount in controversy exceeds $75,000 should the Portz easement be declared invalid, submits an excerpt from the deposition of Norm Henenberg, in which he explains that if the various pipeline easement(s) cannot be used, Plaintiff will need to find a new way around each tract of land, thereby incurring additional costs to acquire land for the new pipeline route. Henenberg opines that this effort will also incorporate further costs for additional materials, construction engineering work, as well project delay costs (Doc. 54, p. 5, n.3, Ex. 2). Specifically, Henenberg claims that the additional pipe needed, if a longer route is required to go around Defendant's tracts of land, costs approximately $100 to $200 per foot. Because an alternate path is yet unknown (as additional easements have not been acquired because Plaintiff believes it maintains the right to use the Portz easement), Plaintiff ...


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