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United States v. 0.28 Acre of Land

November 25, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
0.28 ACRE OF LAND, MORE OR LESS, SITUATE IN WASHINGTON COUNTY, COMMONWEALTH OF PENNSYLVANIA, AND PENNSYLVANIA LINES LLC ET AL., DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ORDER OF COURT RE: PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S OBJECTIONS AND AFFIRMATIVE DEFENSES OR, IN THE ALTERNATIVE, MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. NO. 14)

I. Introduction

On May 13, 2009, plaintiff, the United States of America ("the government"), filed a Complaint in Condemnation (Doc. No. 1) in the United States District Court for the Western District of Pennsylvania against 0.28 acres of land located in Washington County, Pennsylvania and the purported owner of the land, Pennsylvania Lines LLC. The United States Army Corps of Engineers sought to obtain a perpetual and assignable easement and right of-way in, on, over and across the land, claiming authority "under and in accordance with the Act of Congress as codified in 40 U.S.C. §3113 and §3114, the Water Resources Development Act of 1992, §1010 (18) of Public Law §102-580, October 31, 1992, which authorizes the Lower Monongahela River Navigation Project and the Consolidated Security, Disaster Assistance and Continuing Appropriations Act, 2009, Public Law §110-329, Division A, September 30, 2008, which made funds available for such purposes." Complaint, Schedule A, (Doc. No. 1-3). The government identifies the "public uses" for the condemnation as being "necessary for the construction of the Lower Monongahela River Navigation Project and other uses as may be authorized by Congress or by Executive Order." Id.

On May 15, 2009, another member of this Court granted the government's Ex Parte Motion for Delivery of Possession (Doc. No. 3) and permitted it to place $2,000 with the Clerk of Court to deposit into the Registry of the Court as just compensation. Order of Court, May 15, 2009 (Doc. No. 7). Thereafter, Norfolk Southern Railway Company ("Norfolk Southern"), as successor in interest to the property in question, filed an Answer Presenting Defenses and Objections Under F.R.C.P. 71.1(e). (Doc. No. 11).*fn1

Norfolk Southern filed its Answer on July 10, 2009, which makes the following five objections to the taking: the subject taking is "not 'necessary'" to accomplish the Lower Monongahela Project (Doc. No. 11, ¶ 3); the use of an at grade crossing, over and across an active railroad, is "an unnecessary and unsafe activity, which unreasonably interferes with the safe use of Defendant's railroad" (Id., ¶ 4); the taking of a permanent easement is overly broad and unnecessary, when a temporary easement would suffice (Id., ¶ 5); because the property is subject to a private crossing by a deed restriction Norfolk Southern believes is held by a third party, the United States failed to join an indispensable party to this action (Id., ¶ 6); and the taking is "unreasonably dangerous to users of the crossing, to the railroad, and to the public, in the absence of any articulated safety precautions at said crossing." (Id., ¶ 7).

Norfolk Southern also asserts two affirmative defenses: the offered compensation is "woefully inadequate for the property condemned" (Id., ¶ 8); and, if the taking is permitted, the United States should be required to "maintain and upgrade said crossing, and to install additional safety precautions, including, but not limited to, gates and flashers, all at their [sic] own expense." (Id., ¶ 9).

The United States thereafter filed a Motion to Strike Defendant's Objections and Affirmative Defenses, or in the Alternative, Motion for Judgment on the Pleadings (Doc. No. 14) on September 16, 2009. After consideration of this motion, Norfolk Southern's Response and Brief in Opposition, and the United States' Reply Brief, the Court will grant the motion in part and deny in part.

II. Plaintiff's Rule 12(f) Motion to Strike Is Untimely

A. Rule 12(f) Standard of Review

Fed.R.Civ.P. 12(f) of the Federal Rules of Civil Procedure provides that, the "court may strike from a pleading any insufficient defenses or any redundant, immaterial, [or] impertinent . . . matter." Rule 12(f) allows the Court to ensure that spurious issues will not pollute the trial. In the present case, though the plaintiff has made a Rule 12(f) motion, the Court may also properly consider a motion to strike on its own initiative. See United States v. Lot 65 Pine Meadow, 976 F.2d 1155, 1157 (8th Cir. 1992). Motions to Strike are generally disfavored. In re Chambers Dev. Sec. Litig., 848 F. Supp. 602, 622 (W.D. Pa. 1994). Courts are generally reluctant to deny a party's claims or defenses and have declined to strike matters in pleadings absent clear immateriality or prejudice to the moving party. Id. at 622.

B. Discussion

Plaintiff argues Norfolk Southern's objections are untenable as a matter of law, and that its affirmative defense that the just compensation is woefully inadequate "simply raises a triable issue." Brief in Support of Judg. on the Pleadings, (Doc. No. 15, 12). Further, that the second affirmative defense which seeks to require the United States to maintain and improve the property, "is without merit because the United States' taking is limited to the right to use the crossing." Motion to Strike Defendant's Objections, (Doc. No. 14, 3). Plaintiff argues that under the Anti-Deficiency Act, 31 U.S.C. §1341(a), the taking cannot require the United States to expend funds for maintenance and upgrades.

This Court need not closely examine the arguments for a Rule 12(f) Motion to Strike as it is untimely. Rule 12(f) motions "shall be filed within 20 days of the opposing party's answer."

F.R.C.P. 12(f)(2). Norfolk Southern filed its Answer Presenting Defenses and Objections Under F.R.C.P. 71.1(e) on July 10, 2009. However, plaintiff's motion was not filed until September 16, 2009, 49 days after the appropriate filing period expired. Plaintiff does not offer good cause why it did not file its motion to strike in a timely ...


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