Florida Southeast Connection, Llc v. 0.107 Acres of Land, More or Less, IN Polk County, Florida et al

MOTION for summary judgment Motion for Final Summary Default Judgment

M.D. Fla.November 1, 2016

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Case No: 8:16-cv-00653-EAK-TGW FLORIDA SOUTHEAST CONNECTION, LLC, Plaintiff, v. 0.107 ACRES OF LAND, MORE OR LESS, IN POLK COUNTY, FLORIDA, ESTATE OF CORINE W. ALLEN, and ALL UNKNOWN OWNERS OF OR INTEREST HOLDERS OF THE ABOVE-DESCRIBED PROPERTY, Defendants. / MOTION FOR FINAL SUMMARY DEFAULT JUDGMENT Plaintiff, Florida Southeast Connection, LLC (“FSC” or “Plaintiff”), pursuant to Federal Rules of Civil Procedure 55, 56, and 71.1(d)(2)(A)(vi), files this Motion for Final Summary Default Judgment1 against Defendants, the Estate of Corine W. Allen and all unknown owners of or interest holders in the above-described property (“Defendants”) on all issues including compensation and states: Motion for Final Summary Default Judgment 1. The Federal Energy Regulatory Commission (“FERC”) authorized FSC to construct and operate a natural gas pipeline for the transportation of natural gas, known as the Florida Southeast Connection Project (the “Project”), as set forth in its Order and Certificate of Public Convenience and Necessity (the “FERC Certificate”). SOF ¶1. 1 Pursuant to Section 6 of the Court’s Case Management and Scheduling Order [DE 29], FSC has contemporaneously filed a Certificate Relating to Plaintiff’s Motion for Final Summary Default Judgment, attached as Exhibit A, and a Statement of Undisputed Facts, attached as Exhibit B. References to the latter are denoted as “SOF.” Case 8:16-cv-00653-EAK-TGW Document 34 Filed 11/01/16 Page 1 of 6 PageID 565 2 2. The Project consists of a natural gas pipeline and related facilities that will be constructed and operated in Alabama, Georgia, and Florida. The Project extends from an interconnect with Sabal Trail Transmission, LLC’s Reunion Station in Osceola County, Florida, to Florida Power & Light Company’s (“FPL”) Martin Clean Energy Center in Martin County, Florida. SOF ¶2. 3. To construct, operate, and maintain the Project, FSC needs to acquire permanent and temporary easements from Defendants in Parcel No. PO 1031.01, Parcel Control No. 28- 26-06-000000-044250. The easement interests that are necessary to construct, operate, and maintain the Project and are the subject of this action are described, identified, and depicted in Exhibit 3 to the Condemnation Complaint filed in this action (the “Easements”). SOF ¶3. 4. FSC prepared the Easements to conform to the FERC-approved alignment sheets. SOF ¶4. 5. According to FSC’s title search, record title of the property is held by Defendants. SOF ¶5. 6. FSC obtained service by publication on Defendants. SOF ¶6. 7. FSC has performed a diligent search pursuant to Rule 71.1(c)(3) of the Federal Rules of Civil Procedure to locate any persons who may have an interest in Parcel No. PO 1031.01, Parcel Control No. 28-26-06-000000-044250 and has not located any such persons. SOF ¶¶5, 6. 8. To date, Defendants have not filed an answer or appeared in the subject case. SOF ¶10. 9. FSC has been unable to reach agreement with Defendants. SOF ¶10. 10. FSC has filed a Motion for Entry of Clerk’s Default against Defendants, which is pending before the Court. SOF ¶11. Case 8:16-cv-00653-EAK-TGW Document 34 Filed 11/01/16 Page 2 of 6 PageID 566 3 11. This Court entered Orders in this case granting FSC’s Motions for Partial Summary Judgment Determining the Right to Condemn Easements and for Preliminary Injunction for Immediate Possession against Defendants. SOF ¶7. 12. FSC posted a bond in the amount of $5,000.00 in this matter. SOF ¶8. 13. Diskin Property Research prepared an Appraisal Report dated August 31, 2016, showing that the total compensation to be paid for Parcel No. PO 1031.01, Parcel Control No. 28-26-06-000000-044250 as of May 11, 2016 is $1,200.00. SOF ¶9. 14. To complete the condemnation of Parcel No. PO 1031.01, Parcel Control No. 28-26-06-000000-044250, FSC has filed this Motion for Final Summary Default Judgment. WHEREFORE, FSC respectfully requests this Court enter a Final Summary Default Judgment: A. Requiring FSC to deposit into the Court Registry the sum of $1,200.00 as just compensation; B. Declaring that, upon the deposit of the foregoing amount of just compensation into the Court Registry, ownership and title of the property rights related to Parcel No. PO 1031.01, Parcel Control No. 28-26-06-000000-044250 as described, identified, and depicted in Exhibit 3 to the Condemnation Complaint [D.E. 1, Ex. 3] shall vest in Florida Southeast Connection, LLC. Memorandum of Law in Support The Federal Rules of Civil Procedure provide that in eminent domain proceedings “the failure to so serve an answer constitutes consent to the taking and to the court’s authority to proceed with the action and fix the compensation.” Fed. R. Civ. P. 71.1(d)(2)(A)(vi). “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s Case 8:16-cv-00653-EAK-TGW Document 34 Filed 11/01/16 Page 3 of 6 PageID 567 4 default.” Fed. R. Civ. P. 55(a). Following entry of a clerk’s default, the court may enter a default judgment. Fed. R. Civ. P. 55(b)(2). Furthermore, “where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” In re Optical Tech., Inc., 246 F.3d 1332, 1334 (11th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In Columbia Gas Transmission Corp. v. Rodriguez, 551 F. Supp. 2d 460 (W.D. Va. 2008), the defendant failed to appear in the case. After the pipeline company obtained immediate possession, the company filed a motion for summary judgment regarding just compensation. The court granted the motion for summary judgment, stating: The burden of establishing the value of condemned lands lies with [the landowner]. United States v. Powelson, 319 U.S. 266, 273-74, 63 S. Ct. 1047, 87 L. Ed. 1390 (1943). [The landowner] is entitled at this stage to present evidence on compensation, despite the lack of an answer. Fed. R. Civ. P. 71.1(e). A plaintiff's offer on a property interest may constitute the minimum estimate of what constitutes just compensation. See ANR Pipeline Co. v. 62.026 Acres of Land, 389 F.3d 716, 718 (7th Cir. 2004). “Market value,” rather than the value to the condemnor or the owner, is the proper measure of just compensation. United States v. Petty Motor Co., 327 U.S. 372, 377-78, 66 S. Ct. 596, 90 L. Ed. 729 (1946). . . . This estimate is supported by the declaration of Douglas Holley, a Columbia land manager. (Pl.'s Mot. for Summ. J. Ex. 2.) [The landowner] has offered no evidence, and the court concludes that $3,612.50 is appropriate compensation. Accordingly, the court grants Columbia's motion. 551 F. Supp. at 462 (emphasis added). As in Rodriguez, the Defendants here have not appeared and have not presented evidence on just compensation. There are no genuine issues of material fact regarding the condemnation of Parcel No. PO 1031.01, Parcel Control No. 28-26-06-000000-044250, and the just compensation to be paid for Parcel No. PO 1031.01, Parcel Control No. 28-26-06-000000- 044250 is $1,200.00. Case 8:16-cv-00653-EAK-TGW Document 34 Filed 11/01/16 Page 4 of 6 PageID 568 5 Cases filed on another part of this pipeline project by Sabal Trail Transmission, LLC are presently pending in the Northern and Middle Districts of Florida. In similar cases to the one here, Judge James S. Moody, Jr. in the Middle District of Florida, and Judge Mark E. Walker in the Northern District of Florida, have entered orders granting final summary default judgment. See e.g., Sabal Trail Transmission, LLC v. 0.36 Acres of Land, Unknown Heirs and Beneficiaries of Curtis H. Edwards and Unknown Owners, if Any, Case No.: 5:16-cv-191-JSM- PRL (M.D. Fla. September 21, 2016); Sabal Trail Transmission, LLC v. 0.553 Acres of Land, Robin L. Koon a/k/a Robin Koon and Unknown Owners, if Any, Case No.: 1:16-cv-00077-MW- GRJ (N.D. Fla. October 15, 2016). Copies of the orders in both cases are attached as Exhibit C. FSC respectfully requests that this Court enter a Final Summary Default Judgment requiring FSC to deposit into the Court Registry the sum of $1,200.00, and upon deposit of the $1,200.00, granting the condemnation of Parcel No. PO 1031.01 Parcel Control No. 28-26-06- 000000-044250 as described, identified, and depicted in Exhibit 3 to the Condemnation Complaint [D.E. 1, Ex. 3]. Respectfully submitted, By: /s/ John W. Little, III JOHN W. LITTLE, III, ESQ. Lead Trial Counsel Florida Bar Number: 384798 jlittle@gunster.com JUAN M. MUÑIZ, ESQ. Florida Bar Number: 133329 jmuniz@gunster.com KENNETH B. BELL, ESQ. Florida Bar Number: 347035 kbell@gunster.com CHRISTOPHER P. BENVENUTO, ESQ. Florida Bar Number: 649201 cbenvenuto@gunster.com GUNSTER, YOAKLEY & STEWART, P.A. 200 South Orange Avenue Suite 1400 Orlando, FL 32801 Case 8:16-cv-00653-EAK-TGW Document 34 Filed 11/01/16 Page 5 of 6 PageID 569 6 Tel: 561-655-1980 Fax: 561-655-5677 Attorneys for Florida Southeast Connection, LLC CERTIFICATE OF SERVICE I hereby certify that on November 1, 2016, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to any filing users who may have entered an appearance in this action. As to any Defendant who is unrepresented, does not utilize CM/ECF, and has an address known to Plaintiff, I hereby certify that on this day I mailed the foregoing to the party’s last known address, as authorized by Federal Rule of Civil Procedure 5(b). By: /s/ John W. Little, III JOHN W. LITTLE, III, ESQ. SERVICE LIST FLORIDA SOUTHEAST CONNECTION, LLC v. 0.107 ACRES OF LAND, MORE OR LESS, IN POLK COUNTY, FLORIDA, ESTATE OF CORINE W. ALLEN CASE NO: 8:16-cv-00653-EAK-TGW Estate of Corine W. Allen 0 US Highway 17 92 North Loughman, FL 33858 WPB_ACTIVE 7411470.1 Case 8:16-cv-00653-EAK-TGW Document 34 Filed 11/01/16 Page 6 of 6 PageID 570 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Case No: 8:16-cv-00653-EAK-TGW FLORIDA SOUTHEAST CONNECTION, LLC, Plaintiff, v. 0.107 ACRES OF LAND, MORE OR LESS, IN POLK COUNTY, FLORIDA, ESTATE OF CORINE W. ALLEN, and ALL UNKNOWN OWNERS OF OR INTEREST HOLDERS OF THE ABOVE-DESCRIBED PROPERTY, Defendants. / CERTIFICATE RELATING TO PLAINTIFF’S MOTION FOR FINAL SUMMARY DEFAULT JUDGMENT Plaintiff, Florida Southeast Connection, LLC (“FSC” or “Plaintiff”), pursuant to the Summary Judgment Procedures set forth in Section 6 of the Court’s Case Management and Scheduling Order [D.E. 29], hereby notifies the Court that Plaintiff is unable to confer in good faith with the party or parties against whom summary judgment is being sought for the purpose of narrowing the factual issues in dispute. As set forth in Plaintiff’s Motion for Final Summary Default Judgment, Plaintiff has conducted a diligent search but has been unsuccessful in its attempts to locate any representatives of the Estate of Corine W. Allen or any other unknown owners of or interest holders in the above referenced property. CERTIFICATE OF SERVICE I hereby certify that on November 1, 2016, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to any filing users who may have entered an appearance in this action. As to any Case 8:16-cv-00653-EAK-TGW Document 33 Filed 11/01/16 Page 1 of 2 PageID 563Case 8:16-cv-0 653-EAK-TGW Document 34-1 Filed 1/01/16 Page 1 of 2 PageID 571 2 Defendant who is unrepresented, does not utilize CM/ECF, and has an address known to Plaintiff, I hereby certify that on this day I mailed the foregoing to the party’s last known address, as authorized by Federal Rule of Civil Procedure 5(b). By: /s/ John W. Little, III JOHN W. LITTLE, III, ESQ. Lead Trial Counsel Florida Bar Number: 384798 jlittle@gunster.com JUAN M. MUÑIZ, ESQ. Florida Bar Number: 133329 jmuniz@gunster.com KENNETH B. BELL, ESQ. Florida Bar Number: 347035 kbell@gunster.com CHRISTOPHER P. BENVENUTO, ESQ. Florida Bar Number: 649201 cbenvenuto@gunster.com GUNSTER, YOAKLEY & STEWART, P.A. 200 South Orange Avenue Suite 1400 Orlando, FL 32801 Tel: 561-655-1980 Fax: 561-655-5677 Attorneys for Florida Southeast Connection, LLC SERVICE LIST FLORIDA SOUTHEAST CONNECTION, LLC v. 0.107 ACRES OF LAND, MORE OR LESS, IN POLK COUNTY, FLORIDA, ESTATE OF CORINE W. ALLEN CASE NO: 8:16-cv-00653-EAK-TGW Estate of Corine W. Allen 0 US Highway 17 92 North Loughman, FL 33858 WPB_ACTIVE 7415234.2 Case 8:16-cv-00653-EAK-TGW Document 33 Filed 11/01/16 Page 2 of 2 PageID 564Case 8:16-cv-0 653-EAK-TGW Document 34-1 Filed 1/01/16 Page 2 of 2 PageID 572 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Case No: 8:16-cv-00653-EAK-TGW FLORIDA SOUTHEAST CONNECTION, LLC, Plaintiff, v. 0.107 ACRES OF LAND, MORE OR LESS, IN POLK COUNTY, FLORIDA, ESTATE OF CORINE W. ALLEN, and ALL UNKNOWN OWNERS OF OR INTEREST HOLDERS OF THE ABOVE-DESCRIBED PROPERTY, Defendants. / PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ITS MOTION FOR FINAL SUMMARY DEFAULT JUDGMENT Plaintiff, Florida Southeast Connection, LLC (“FSC” or “Plaintiff”), pursuant to the Summary Judgment Procedures set forth in Section 6 of the Court’s Case Management and Scheduling Order [D.E. 29], files its Statement of Undisputed Facts in support of its Motion for Final Summary Default Judgment against Defendants, the Estate of Corine W. Allen and all unknown owners of or interest holders in the above-described property (“Defendants”), and states: 1. On February 2, 2016, the Federal Energy Regulatory Commission (“FERC”) authorized FSC to construct and operate a natural gas pipeline for the transportation of natural gas, known as the Florida Southeast Connection Project (the “Project”), as set forth in its Order and Certificate of Public Convenience and Necessity (the “FERC Certificate”). See Complaint, Ex. 4 [D.E. 1, Ex. 4]. 2. The Project consists of a natural gas pipeline and related facilities that will be constructed and operated in Alabama, Georgia, and Florida. The Project extends from an Case 8:16-cv-00653-EAK-TGW Document 34-2 Filed 11/01/16 Page 1 of 6 PageID 573 2 interconnect with Sabal Trail Transmission, LLC’s Reunion Station in Osceola County, Florida, to Florida Power & Light Company’s (“FPL”) Martin Clean Energy Center in Martin County, Florida. See Complaint, Ex. 4 [D.E. 1, Ex. 4]. 3. To construct, operate, and maintain the Project, FSC needs to acquire permanent and temporary easements from Defendants in Parcel No. PO 1031.01, Parcel Control No. 28-26- 06-000000-044250. The easement interests that are necessary to construct, operate, and maintain the Project and are the subject of this action are described, identified, and depicted in Plaintiff’s Exhibit 3 to the Condemnation Complaint [D.E. 1, Ex. 3] filed in this action (the “Easements”). 4. FSC prepared the Easements to conform to the FERC-approved alignment sheets. See Declaration of Dean Girard ¶¶ 13-15 [D.E. 4, Ex. 1]. 5. FSC performed a title search for the subject property. Record title of the property is held by Defendants [D.E. 1, Ex. 1; D.E. 14]. 6. FSC obtained service by publication on Defendants as evidenced by the Certificate for Service by Publication [D.E. 14] filed on April 1, 2016, and Certificate of Publication [D.E. 17] filed on April 18, 2016. 7. On May 11, 2016, this Court entered Orders [D.E. 25 and D.E. 26] in this case granting FSC’s Motions for Partial Summary Judgment Determining the Right to Condemn Easements [D.E. 4] and for Preliminary Injunction for Immediate Possession against Defendants [D.E. 5]. 8. On June 2, 2016, FSC posted a bond in the amount of $5,000.00 in this matter [D.E. 27]. 9. Diskin Property Research prepared an Appraisal Report dated August 31, 2016, showing that the total compensation to be paid for Parcel No. PO 1031.01, Parcel Control No. 28-26-06-000000-044250 as of May 11, 2016 is $1,200.00. See Declaration of Barry A. Diskin, attached hereto as Exhibit 1. Case 8:16-cv-00653-EAK-TGW Document 34-2 Filed 11/01/16 Page 2 of 6 PageID 574 3 10. FSC has been unable to reach agreement with Defendants [D.E. 4, Ex. 1]. 11. No person or entity has appeared on behalf of Defendants. Accordingly, on October 31, 2016, FSC filed a Motion for Entry of Clerk’s Default against Defendants, which is currently pending [D.E. 32]. CERTIFICATE OF SERVICE I hereby certify that on November 1, 2016, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to any filing users who may have entered an appearance in this action. As to any Defendant who is unrepresented, does not utilize CM/ECF, and has an address known to Plaintiff, I hereby certify that on this day I mailed the foregoing to the party’s last known address, as authorized by Federal Rule of Civil Procedure 5(b). By: /s/ John W. Little, III JOHN W. LITTLE, III, ESQ. Lead Trial Counsel Florida Bar Number: 384798 jlittle@gunster.com JUAN M. MUÑIZ, ESQ. Florida Bar Number: 133329 jmuniz@gunster.com KENNETH B. BELL, ESQ. Florida Bar Number: 347035 kbell@gunster.com CHRISTOPHER P. BENVENUTO, ESQ. Florida Bar Number: 649201 cbenvenuto@gunster.com GUNSTER, YOAKLEY & STEWART, P.A. 200 South Orange Avenue Suite 1400 Orlando, FL 32801 Tel: 561-655-1980 Fax: 561-655-5677 Attorneys for Florida Southeast Connection, LLC Case 8:16-cv-00653-EAK-TGW Document 34-2 Filed 11/01/16 Page 3 of 6 PageID 575 4 SERVICE LIST FLORIDA SOUTHEAST CONNECTION, LLC v. 0.107 ACRES OF LAND, MORE OR LESS, IN POLK COUNTY, FLORIDA, ESTATE OF CORINE W. ALLEN CASE NO: 8:16-cv-00653-EAK-TGW Estate of Corine W. Allen 0 US Highway 17 92 North Loughman, FL 33858 WPB_ACTIVE 7415720.1 Case 8:16-cv-00653-EAK-TGW Document 34-2 Filed 11/01/16 Page 4 of 6 PageID 576 Case 8:16-cv-00653-EAK-TGW Document 34-2 Filed 11/01/16 Page 5 of 6 PageID 577 Case 8:16-cv-00653-EAK-TGW Document 34-2 Filed 11/01/16 Page 6 of 6 PageID 578 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION SABAL TRAIL TRANSMISSION, LLC, Plaintiff, vs. +/- 0.36 ACRES OF LAND IN LAKE COUNTY FLORIDA, UNKNOWN HEIRS AND BENEFICIARIES OF CURTIS H. EDWARDS AND UNKNOWN OWNERS, IF ANY, Defendants. _____________________________/ Case No.: 5:16-cv-191-JSM-PRL Tract No(s): FL-LA-079.000 ORDER This cause is before the Court on Plaintiff’s Motion for Final Summary Default Judgment (Doc. 22) against Unknown Heirs and Beneficiaries of Curtis H. Edwards and Unknown Owners, if any. No Defendant has appeared in this action. After consideration of the allegations of the Complaint, Plaintiff’s Motion for Final Summary Default Judgment, and the applicable law, the Court concludes that Plaintiff’s Motion for Final Summary Default Judgment should be granted. I. Background On February 2, 2016, the Federal Energy Regulatory Commission (“FERC”) issued an order that, among other things, granted Plaintiff a Certificate of Public Convenience and Necessity (“FERC Certificate”), which authorizes Plaintiff to construct and operate the Sabal Trail Project (“Project”). The FERC Certificate authorizes the construction and operation of the Project on its specified terms and conditions. (FERC Certificate, ¶ 88, p. 28). FERC found the Project is necessary, its “benefits to the market will outweigh any adverse effects on other pipelines and their Case 5:16-cv-00191-JSM-PRL Document 23 Filed 09/21/16 Page 1 of 6 PageID 305Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/16 Page 1 of 15 PageID 579 captive customers, and on landowners and surrounding communities,” and “the public convenience and necessity requires approval of” the Project, as conditioned in the Order granting certification. (Id.). The purpose of the Project is to provide additional supplies of natural gas to Florida Power & Light Company and Duke Energy Florida, LLC, for their power generation needs and to the southeast region of the United States as a whole, by making additional supplies and new energy infrastructure available to support other regional power generators and the growing demand for natural gas. Upon completion, Plaintiff will be able to transport up to 1.1 billion cubic feet of natural gas per day. The Project involves the construction and operation of approximately 516.2 miles of natural gas pipeline and related facilities. The pipeline facilities will consist of approximately 481.6 miles of mainline pipeline in Alabama, Georgia, and Florida; 13.1 miles of lateral pipeline (the Hunters Creek Line) in Florida; 21.5 miles of lateral pipeline (the Citrus County Line) in Florida; five new natural gas-fired compressor stations; and appurtenant facilities. Plaintiff also will construct and operate a facility in Osceola County, Florida, referred to as the Central Florida Hub. Plaintiff filed this condemnation action in order to acquire easement interests necessary to complete the Project. Plaintiff served the “Unknown Heirs and Beneficiaries of Curtis H. Edwards a and Unknown Owners, if any,” by publication pursuant to Federal Rule of Civil Procedure 71.1(d)(3)(B). On April 28, 2016, Plaintiff filed its Proof of Service by Publication (Doc. 14). The Unknown Heirs and Beneficiaries of Curtis H. Edwards and Unknown Owners, if any, have not filed an answer or otherwise appeared in the case. 2 Case 5:16-cv-00191-JSM-PRL Document 23 Filed 09/21/16 Page 2 of 6 PageID 306Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/16 Page 2 of 15 PageID 580 Pursuant to Federal Rule of Civil Procedure 71.1(c)(3), Plaintiff performed a diligent search to locate any persons who may have an interest in Parcel FL-LA-079.000, other than the Unknown Heirs and Beneficiaries of Curtis H. Edwards and Unknown Owners, if any, and did not locate any such people (Doc. 2). Thus, Plaintiff has been unable to reach an agreement with the owners of Parcel FL-LA-079.000. On May 24, 2016, this Court entered an Order (Doc. 18) in this case granting Plaintiff’s Motions for Partial Summary Judgment Determining the Right to Condemn Easements and Preliminary Injunction for Immediate Possession. On July 5, 2016, the Court entered a Clerk’s default against Unknown Heirs and Beneficiaries of Curtis H. Edwards and Unknown Owners, if any (Doc. 21). Following entry of the Clerk’s default, Plaintiff filed its Motion for Final Summary Default Judgment (Doc. 22) stating that the value of the proposed taking is $400. This valuation is supported by the declaration of Richard H. Parham, a State-Certified General Real Estate Appraiser. Mr. Parham has been an appraiser for twenty seven years. On August 11, 2016, Mr. Parham prepared an appraisal of the value of the easements at issue, collectively identified as CCL- FL-CI-052.000, and determined that just compensation for Parcel FL-LA-079.000 to be $400.00, as of June 13, 2016. There is nothing in the record that contradicts Mr. Collison’s opinion of value. II. Analysis The Federal Rules of Civil Procedure provide that in eminent domain proceedings “the failure to so serve an answer constitutes consent to the taking and to the court’s authority to proceed with the action and fix the compensation.” Fed. R. Civ. P. 71.1(d)(2)(A)(vi). “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 3 Case 5:16-cv-00191-JSM-PRL Document 23 Filed 09/21/16 Page 3 of 6 PageID 307Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/16 Page 3 of 15 PageID 581 55(a). Following entry of a clerk’s default, the court may enter a default judgment. Fed. R. Civ. P. 55(b)(2). The Court finds that Plaintiff is entitled to default judgment against Defendants. It is without question that Plaintiff has the authority pursuant to 15 U.S.C. § 717f(h) (2016) to condemn the easements it seeks: “When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located. . . .” A number of courts have held, and this Court agrees, that the Natural Gas Act authorizes a party to exercise the federal power of eminent domain to acquire property necessary for an interstate natural gas pipeline project when: (1) the plaintiff is the holder of a FERC Certificate authorizing a project, (2) FERC has determined that the property is necessary for the project, and (3) the plaintiff is unable to acquire the property by contract. E.g., Columbia Gas Trans., LLC, v. 1.01 Acres, More or Less, in Penn Twp., York Cty., Pa., 768 F.3d 300, 304 (3d Cir. 2014); Columbia Gas Trans., LLC, v. 0.85 Acres, No. WDQ-14-2288, 2014 WL 4471541, at *3 (D. Md. Sept. 8, 2014); Transcon. Gas Pipe Line Co., LLC, v. Permanent Easement Totaling 2.322 Acres, No. 3:14-cv-00400-HEH, 2014 WL 4365476, at *4 (E.D. Va. Sept. 2, 2014). District courts have limited jurisdiction in Natural Gas Act condemnation actions. The condemnation action “does not provide challengers with an additional forum to attack the substance and validity of a FERC order. The district court’s function under the statute is not 4 Case 5:16-cv-00191-JSM-PRL Document 23 Filed 09/21/16 Page 4 of 6 PageID 308Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/16 Page 4 of 15 PageID 582 appellate but, rather, to provide for enforcement.” Williams Nat. Gas Co. v. Okla. City, 890 F.2d 255, 264 (10th Cir. 1989), cert. denied, 497 U.S. 1003 (1990). “The District Court’s sole charge and authority is to evaluate the scope of the FERC Certificate, and order the condemnation of property in accordance with that scope.” Steckman Ridge GP, LLC, v. An Exclusive Nat. Gas Storage Easement Beneath 11.078 Acres, More or Less, in Monroe Twp., et al., Nos. 08-168, et al., 2008 WL 4346405, at *3 (W.D. Pa. Sept. 19, 2008) (citations omitted); see also Columbia Gas Transmission Corp. v. An Easement to Construct, Operate & Maintain a 24-Inch Pipeline, No. 5:07CV04009, 2008 WL 2439889, at *2 (W.D. Va. June 9, 2008). Accordingly, Plaintiff previously moved for partial summary judgment (Doc. 5) confirming its right to condemn the easements, and this Court issued an order granting partial summary judgment as to that issue (Doc. 18). The only issue remaining to be decided is the amount of compensation to be paid for the taking. As to this issue, in the absence of any appearance by Defendants and conflicting representations relative to valuation, the Court accepts the appraisal evidence presented by Plaintiff, establishing that just compensation for Parcel FL-LA-079.000 is $400. Accordingly, it is hereby ORDERED AND ADJUDGED: 1. Plaintiff’s Motion for Final Default Judgment (Doc. 22) is GRANTED. 2. Plaintiff has properly exercised its power of eminent domain. 3. $400 is just compensation for Parcel FL-LA-079.000. 4. Upon payment by Plaintiff of $400 into the registry of the Court, title to Parcel FL- LA-079.000, as provided at Doc. 1-2, shall become vested in Plaintiff. 5 Case 5:16-cv-00191-JSM-PRL Document 23 Filed 09/21/16 Page 5 of 6 PageID 309Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/16 Page 5 of 15 PageID 583 5. The Clerk of the Court is directed to terminate all pending matters and to close this case upon Plaintiff’s deposit pursuant to this Order. DONE and ORDERED in Tampa, Florida, this 21st day of September, 2016. Copies furnished to: Counsel/Parties of Record S:\OCALA\2016\16-cv-191 final default judgment.docx 6 Case 5:16-cv-00191-JSM-PRL Document 23 Filed 09/21/16 Page 6 of 6 PageID 310Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/16 Page 6 of 15 PageID 584 Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/16 Page 7 of 15 PageID 585 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION SABAL TRAIL TRANSMISSION, LLC, Plaintiff, vs. +/- 0.553 ACRES OF LAND IN LEVY COUNTY FLORIDA, ROBIN L. KOON A/K/A ROBIN KOON AND UNKNOWN OWNERS, IF ANY, Defendants. _____________________________/ Case No.: 1:16-cv-00077-MW-GRJ Tract No(s): FL-LE-020.005 ORDER OF FINAL SUMMARY DEFAULT JUDGMENT This cause is before the Court on Plaintiff’s Motion for Final Summary Default Judgment (ECF No. 23) against Robin L. Koon a/k/a Robin Koon (“Robin Koon”). No Defendant has appeared in this action. After consideration of the allegations of the Complaint, Plaintiff’s Motion for Final Summary Default Judgment, and the applicable law, the Court concludes that Plaintiff’s Motion for Final Summary Default Judgment should be granted. Case 1:16-cv-00077-MW-GRJ Document 24 Filed 10/15/16 Page 1 of 8Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/16 Page 8 of 15 PageID 586 2 I. Background On February 2, 2016, the Federal Energy Regulatory Commission (“FERC”) issued an order that, among other things, granted Plaintiff a Certificate of Public Convenience and Necessity (“FERC Certificate”), which authorizes Plaintiff to construct and operate the Sabal Trail Project (“Project”). The FERC Certificate authorizes the construction and operation of the Project on its specified terms and conditions. (FERC Certificate, ¶ 88, p. 28). FERC found the Project is necessary, its “benefits to the market will outweigh any adverse effects on other pipelines and their captive customers, and on landowners and surrounding communities,” and “the public convenience and necessity requires approval of” the Project, as conditioned in the Order granting certification. (Id.). The purpose of the Project is to provide additional supplies of natural gas to Florida Power & Light Company and Duke Energy Florida, LLC, for their power generation needs and to the southeast region of the United States as a whole, by making additional supplies and new energy infrastructure available to support other regional power generators and the growing demand for natural gas. Upon completion, Plaintiff will be able to transport up to 1.1 billion cubic feet of natural gas per day. Case 1:16-cv-00077-MW-GRJ Document 24 Filed 10/15/16 Page 2 of 8Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/16 Page 9 of 15 PageID 587 3 The Project involves the construction and operation of approximately 516.2 miles of natural gas pipeline and related facilities. The pipeline facilities will consist of approximately 481.6 miles of mainline pipeline in Alabama, Georgia, and Florida; 13.1 miles of lateral pipeline (the Hunters Creek Line) in Florida; 21.5 miles of lateral pipeline (the Citrus County Line) in Florida; five new natural gas-fired compressor stations; and appurtenant facilities. Plaintiff also will construct and operate a facility in Osceola County, Florida, referred to as the Central Florida Hub. Plaintiff filed this condemnation action in order to acquire easement interests necessary to complete the Project. Plaintiff served Robin Koon on April 7, 2016. On April 12, 2016, Plaintiff filed its Affidavit of Service (ECF No. 13). Robin Koon has not filed an answer or otherwise appeared in the case. Pursuant to Federal Rule of Civil Procedure 71.1(c)(3), Plaintiff performed a diligent search to locate any persons who may have an interest in Parcel FL-LE-020.005, other than Robin Koon, and did not locate any such people. Plaintiff has been unable to reach an agreement with the owners of Parcel FL-LE-020.005. Case 1:16-cv-00077-MW-GRJ Document 24 Filed 10/15/16 Page 3 of 8Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/ 6 Page 10 of 15 PageID 588 4 On May 9, 2016, this Court entered an Order (ECF No. 16) in this case granting Plaintiff’s Motions for Partial Summary Judgment Determining the Right to Condemn Easements and Preliminary Injunction for Immediate Possession. On June 27, 2016, the Court entered a Clerk’s default against Robin Koon (ECF No. 22). Following entry of the Clerk’s default, Plaintiff filed its Motion for Final Summary Default Judgment (ECF No. 23) stating that the value of the proposed taking is $3,650.00. This valuation is supported by the declaration of Harry W. Collison, Jr., a State-Certified General Real Estate Appraiser. Mr. Collison has been an appraiser for forty years. On August 8, 2016, Mr. Collison prepared an appraisal of the value of the easements at issue, collectively identified as Parcel FL-LE-020.005, and determined that just compensation for Parcel FL-LE-020.005 to be $3,650.00, as of June 1, 2016. There is nothing in the record that contradicts Mr. Collison’s opinion of value. II. Analysis The Federal Rules of Civil Procedure provide that in eminent domain proceedings “the failure to so serve an answer constitutes consent to the taking and to the court’s authority to proceed with the action and fix the Case 1:16-cv-00077-MW-GRJ Document 24 Filed 10/15/16 Page 4 of 8Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/ 6 Page 11 of 15 PageID 589 5 compensation.” Fed. R. Civ. P. 71.1(d)(2)(A)(vi). “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Following entry of a clerk’s default, the court may enter a default judgment. Fed. R. Civ. P. 55(b)(2). The Court finds that Plaintiff is entitled to final default judgment. It is without question that Plaintiff has the authority pursuant to 15 U.S.C. § 717f(h) (2016) to condemn the easements it seeks: “When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of- way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located. . . .” A number of courts have held, and this Court agrees, that the Natural Case 1:16-cv-00077-MW-GRJ Document 24 Filed 10/15/16 Page 5 of 8Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/ 6 Page 12 of 15 PageID 590 6 Gas Act authorizes a party to exercise the federal power of eminent domain to acquire property necessary for an interstate natural gas pipeline project when: (1) the plaintiff is the holder of a FERC Certificate authorizing a project, (2) FERC has determined that the property is necessary for the project, and (3) the plaintiff is unable to acquire the property by contract. E.g., Columbia Gas Trans., LLC, v. 1.01 Acres, More or Less, in Penn Twp., York Cty., Pa., 768 F.3d 300, 304 (3d Cir. 2014); Columbia Gas Trans., LLC, v. 0.85 Acres, No. WDQ-14-2288, 2014 WL 4471541, at *3 (D. Md. Sept. 8, 2014); Transcon. Gas Pipe Line Co., LLC, v. Permanent Easement Totaling 2.322 Acres, No. 3:14-cv-00400-HEH, 2014 WL 4365476, at *4 (E.D. Va. Sept. 2, 2014). District courts have limited jurisdiction in Natural Gas Act condemnation actions. The condemnation action “does not provide challengers with an additional forum to attack the substance and validity of a FERC order. The district court’s function under the statute is not appellate but, rather, to provide for enforcement.” Williams Nat. Gas Co. v. Okla. City, 890 F.2d 255, 264 (10th Cir. 1989), cert. denied, 497 U.S. 1003 (1990). “The District Court’s sole charge and authority is to evaluate the scope of the FERC Certificate, and order the condemnation of property in Case 1:16-cv-00077-MW-GRJ Document 24 Filed 10/15/16 Page 6 of 8Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/ 6 Page 13 of 15 PageID 591 7 accordance with that scope.” Steckman Ridge GP, LLC, v. An Exclusive Nat. Gas Storage Easement Beneath 11.078 Acres, More or Less, in Monroe Twp., et al., Nos. 08-168, et al., 2008 WL 4346405, at *3 (W.D. Pa. Sept. 19, 2008) (citations omitted); see also Columbia Gas Transmission Corp. v. An Easement to Construct, Operate & Maintain a 24-Inch Pipeline, No. 5:07CV04009, 2008 WL 2439889, at *2 (W.D. Va. June 9, 2008). Accordingly, Plaintiff previously moved for partial summary judgment (ECF No. 4) confirming its right to condemn the easements, and this Court issued an order granting partial summary judgment as to that issue (ECF No. 16). The only issue remaining to be decided is the amount of compensation to be paid for the taking. As to this issue, in the absence of any appearance by Defendants and conflicting representations relative to valuation, the Court accepts the appraisal evidence presented by Plaintiff, establishing that just compensation for Parcel FL-LE-020.005 is $3,650.00. Accordingly, it is hereby ORDERED AND ADJUDGED: 1. Plaintiff’s Motion for Final Default Judgment (ECF No. 23) is GRANTED. 2. Plaintiff has properly exercised its power of eminent domain. Case 1:16-cv-00077-MW-GRJ Document 24 Filed 10/15/16 Page 7 of 8Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/ 6 Page 14 of 15 PageID 592 8 3. $3,650.00 is just compensation for Parcel FL-LE-020.005. 4. Upon payment by Plaintiff of $3,650.00 into the registry of the Court, title to Parcel FL-LE-020.005, as provided at ECF No. 1-2, shall become vested in Plaintiff and Sabal Trail and Liberty Mutual Insurance Company shall be released from the bond previously posted at ECF No.19. 5. The Clerk must place the Registry Funds in an interest bearing account. 6. The Clerk must charge the administrative registry fee as authorized by the Judicial Conference of the United States. 7. The Clerk of the Court is directed to terminate all pending matters and to close this case upon Plaintiff’s deposit pursuant to this Order. SO ORDERED on October 15, 2016. s/Mark E. Walker ____ United States District Judge Case 1:16-cv-00077-MW-GRJ Document 24 Filed 10/15/16 Page 8 of 8Case 8:16-cv-00653-EAK-TGW Document 34-3 Filed 11/01/ 6 Page 15 of 15 PageID 593