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United States v. 9.28 Acres of Land

February 7, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
9.28 ACRES OF LAND, MORE OR LESS SITUATE IN COUNTY OF ALLEGHENY, RE: DOC. NO. 11 AND CSX TRANSPORTATION, INC., DEFENDANTS.



The opinion of the court was delivered by: Lisa Pupo Lenihan United States Magistrate Judge

Magistrate Judge Lenihan

MEMORANDUM ORDER

I. Procedural Background and Relevant Facts

On August 16, 2006, the United States filed its Complaint in Condemnation naming Defendant CSX Transportation, Inc., as the titled owner of the above named property specifically described in Exhibit "B" to the Complaint (Doc. No. 1). "The specific estate to be condemned is a temporary easement over and across the land described in 'Exhibit B' for a period not to exceed 18 months" as more specifically described in Exhibit C to the Complaint. (Complaint, Doc. No. 1 at ¶ 6.) Plaintiffs indicate that the authority for the taking is found at 33 U.S.C. § 591, which authorizes the acquisition of land for the improvement of rivers and harbors, and the Waters Resource Development Act of 1992, Public Law 102-580, which authorizes the specific project in question contemplated by the Army Corps of Engineers. (Complaint, Doc. No. 1 at ¶ 3.)

On August 18, 2006, Plaintiff filed an Ex Parte Motion for Possession (Doc. No. 3) which was granted by United States District Judge David S. Cercone on August 31, 2006 (Doc. No. 5). Also on August 31, 2006, Judge Cercone entered an Order directing that Plaintiff be permitted to deposit $100.00 with the Clerk of Court to be deposited into the Registry of the Court representing land condemnation monies. (Doc. No. 6.)

On September 11, 2006, Defendant CSX Transportation, Inc., waived service of process. (Doc. No. 7.) Defendant, CSX Transportation, Inc., has filed neither an answer nor notice of appearance. Judge Cercone referred the above captioned case to the undersigned on September 13, 2006, and the Plaintiff United States filed a consent to Trial/Jurisdiction by United States Magistrate Judge on November 6, 2007.

Also on November 6, 2007, Plaintiff filed this Motion for Summary Judgment (Doc. No. 11), requesting that the Court enter an Order granting Judgment in its favor and entering just compensation in the total sum of $100.00. Defendant, CSX Transportation, Inc., was served with a copy of the Motion for Summary Judgment "by mail or electronic filing" on November 6, 2007. Defendant has not responded thereto.

II. Legal Standard

Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial" or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) (emphasis added by Matsushita Court). An issue is genuine only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986).

III. Analysis

Rule 71A of the Federal Rules of Civil Procedure governs condemnation proceedings.*fn1 It "contemplates a two-step procedure. In the first step, the government announces what land it needs, and the landowners are given a full opportunity to present, in their answers, objections or defenses they have to the taking. Any defenses so raised are ruled upon by the court." Gov't of Virgin Islands v. 19, 623 Acres of Land, 536 F.2d 566, 569 (3d Cir. 1976). Fed. R. Civ. P. 71A(e) provides in relevant part:

(e) Appearance or Answer. If a defendant has no objection or defense to the taking of the defendant's property, the defendant may serve a notice of appearance designating the property in which the defendant shall receive notice of all proceedings affecting it. If a defendant has any objection or defense to the taking of the property, the defendant shall serve an answer within 20 days after the service of notice upon the defendant. The answer shall identify the property . . ., and state all the defendant's objections and defenses to the taking of the property. A defendant waives all defenses and objections not so presented, but at the trial of the issue of just compensation, whether or not the defendant has previously appeared or answered, the defendant may present evidence as to the amount of the compensation to be paid for the property, and the defendant may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection shall be allowed.

Fed. R. Civ. P. 71A(e).

Although Defendant has filed no formal notice of appearance, its senior counsel waived service. Defendant has not filed an answer or otherwise raised ...


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