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Rover Pipeline LLC v. The Old Wilson Farm Land Trust

United States District Court, W.D. Pennsylvania

March 8, 2017

ROVER PIPELINE LLC, Plaintiff,
v.
THE OLD WILSON FARM LAND TRUST, Lawrence E. Bolind, Jr., Trustee, owner of PA-WA-HL-020.000, Defendant.

          MEMORANDUM OPINION

          Arthur J. Schwab United States District Judge

         Presently before this Court is Plaintiff's Motion for Partial Summary Judgment and Immediate Access and Possession of Easements to be Condemned (“Motion for Partial Summary Judgment”) (doc. no. 6), filed on February 7, 2017. Plaintiff also filed a Motion for an Expedited Hearing on its Motion for Partial Summary Judgment (doc. no. 10) on that same date. On March 1, 2017, the Court ordered Defendants to file a Response to the Motion for Partial Summary Judgment by March 7, 2017. See doc. no. 34.

         In the interim, Plaintiff entered into agreements with all of the Defendants - except one, the Old Wilson Farm Land Trust (“Old Wilson Farm”) - giving Plaintiff the right to immediate entry onto the land of each Defendant as identified in Plaintiff's Complaint.[1] See doc. nos. 1 and 32. Thus, the only Defendant obligated to file a Response to Plaintiff's Motion for Partial Summary Judgment, was the Old Wilson Farm.[2] No such Response was filed on behalf of the Old Wilson Farm.

         I. STANDARD OF REVIEW

         Summary judgment may be granted if, drawing all inferences in favor of the non-moving party, “the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010).

         A fact is “material” if proof of its existence or non-existence might affect the outcome of the suit under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). Disputes must be both: (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning there is sufficient evidence supporting the claimed factual dispute “to require a jury or judge to resolve the parties' differing versions of the truth at trial.” In re Lemington Home for Aged, 659 F.3d 282, 290 (3d Cir. 2011).

         A party moving for summary judgment has the initial burden of supporting its assertion that fact(s) cannot be genuinely disputed by citing to particular parts of materials in the record - i.e., depositions, documents, affidavits, stipulations, or other materials - or by showing that: (1) the materials cited by the non-moving party do not establish the presence of a genuine dispute, or (2) that the non-moving party cannot produce admissible evidence to support its fact(s). Fed.R.Civ.P. 56(c)(1). The moving party may discharge its burden by “pointing out to the district court” the “absence of evidence to support the nonmoving party's case” when the nonmoving party bears the ultimate burden of proof for the claim in question. Conoshenti v. Public Service Elec. & Gas Co, 364 F.3d 135, 140 (3d Cir. 2004), quoting Singletary v. Pennsylvania Dept. of Corrections, 266 F.3d 186, 192 n. 2 (3d Cir. 2001), quoting Celotex, 477 U.S. 317, 325 (1986).

         Conversely, in order to defeat a motion for summary judgment, the non-moving party must support its assertion that fact(s) are genuinely disputed by citing to particular parts of materials in the record, or by showing that: (1) the materials cited by the moving party do not establish the absence of a genuine dispute, or (2) the moving party cannot produce admissible evidence to support its fact(s). Fed.R.Civ.P. 56(c)(1). When determining whether there are any genuine issues of material fact, all inferences should be drawn in favor of the non-moving party. Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).

         In reviewing a motion for summary judgment, the Court does not make credibility determinations, and summary judgment is “inappropriate when a case will turn on credibility determinations.” El v. Southeastern Pennsylvania Transp. Authority, 479 F.3d 232 (3d Cir. 2007), citing Anderson, 477 U.S. at 255.

         II. BACKGROUND

         The following facts are uncontested and relevant:

         On February 2, 2017, the Federal Energy Regulation Commission (hereinafter “FERC”) granted Plaintiff a certificate of public convenience and necessity (hereinafter the “FERC Certificate”) under the Natural Gas Act, 15 U.S.C.A. § 717, authorizing Plaintiff to construct, install, and maintain a new interstate 24” to 42” diameter pipeline extending over approximately 713 miles. This new pipeline system is designed to add 3, 250, 000 dekatherms per day of new pipeline capacity to industrial and residential users.

         The portion of the pipeline which pertains to Plaintiff and the instant lawsuit (hereinafter, “the Rover Pipeline”) will transport gas from receipt points in the Marcellus and Utica shale supply areas in West Virginia, Pennsylvania, and Ohio, to delivery points along Mainlines “A” and “B, ” which will mostly run parallel from Harrison County, Ohio, to the Midwest Hub in Defiance County, Ohio. The Rover Pipeline Project represents an approximate $4.2 billion investment of private funds for public infrastructure under the Natural Gas Act.

         Plaintiff brought this condemnation action pursuant to the Natural Gas Act, 15 U.S.C. § 717 and Federal Rule of Civil Procedure 71.1, in order to acquire easements over much of the land affected by the Rover Pipeline. Defendants to this action own real property located in Washington County, Pennsylvania, over which Plaintiff is seeking easements necessary to construct and install the Rover Pipeline system. The easements Plaintiff seeks through this lawsuit from the Defendants (a) consist of fifty-foot permanent easements, across the tracts to be traversed by a single Rover pipeline, and (b) a sixty-foot permanent easement across the tracts to be traversed by dual Rover pipelines, temporary construction ...


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