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Panhandle Eastern Pipe Line, Company, L.P. v. Plummer

United States District Court, S.D. Indiana, Indianapolis Division

March 27, 2018

JOSEPH F. PLUMMER, et al., Defendants.


          Hon. Jane Magntts-Stinson, Chief Judge United States District Court.

         The focus of this lawsuit is two pipelines-the “100 Line” and the “400 Line”-owned by Plaintiff Panhandle Eastern Pipe Line Company, L.P. (“Panhandle”) that, pursuant to a 1931 right of way grant, traverse Defendants Joseph and Deborah Plummer's property in Pittsboro, Indiana (“the Property”). Panhandle alleges that the Plummers have failed to remove various obstructions from the 100 Line right of way as required by two agreements they reached in 1999 (collectively, “the 1999 Agreements”). These include a settlement agreement (“the Settlement Agreement”) and an “Amendment of Easement Agreements” (“the Easement Amendment”), which altered the parties' rights to the pipeline rights of way from the terms of the original 1931 grant. Panhandle seeks damages and a permanent injunction prohibiting the Plummers from interfering with Panhandle's rights to the easements. The Plummers have counterclaimed, alleging that the 1999 Agreements were modified by an oral agreement in 2016 and seeking a declaration that Panhandle has abandoned the 100 Line.

         The parties have now moved for summary judgment. [Filing No. 65; Filing No. 71.] Panhandle has also moved for discovery sanctions. [Filing No. 74.] The first obstacle for the Plummers is that, as they concede in their response brief, they previously released their abandonment claim in the 1999 Settlement Agreement. Moreover, the 2016 oral contract fails under the statute of frauds, and the undisputed evidence shows that the Plummers have violated the Settlement Agreement and the Easement Amendment. Therefore, as described more fully below, the Court GRANTS IN PART Panhandle's Motion for Summary Judgment, [Filing No. 71], DENIES the Plummers' Motion for Summary Judgment, [Filing No. 65], and DENIES AS MOOT Panhandle's Motion for Sanctions, [Filing No. 74].


         Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, that the movant is entitled to judgment as a matter of law. SeeFed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         “The existence of cross-motions for summary judgment does not, however, imply that there are no genuine issues of material fact.” R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, “[p]arties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the non- movant, first for one side and then for the other, may highlight the point that neither side has enough to prevail” on summary judgment. Id. at 648.


         Evidentiary Issues

         The parties have raised several evidentiary issues that require attention before the Court may address the merits of the parties' claims. First, Panhandle moves to strike Mr. Plummer's declaration pursuant to the sham affidavit doctrine. [Filing No. 96 at 20-21.] As explained below, the Court concludes that Panhandle is entitled to summary judgment regardless of whether it considers the declaration. The Court therefore DENIES AS MOOT Panhandle's request to strike.

         Second, Mr. Plummer has filed a declaration pursuant to Federal Rule of Civil Procedure 56(d) stating that he has not been able to take the deposition of an individual who witnessed the alleged oral contract between Mr. Plummer and Panhandle and is seeking “clarification of several incomplete and/or evasive answers and responses” from Panhandle's counsel. [Filing No. 65-1 at 3.] Where a nonmovant demonstrates that “it cannot present facts essential to justify its opposition” to summary judgment, Federal Rule of Civil Procedure 56(d) allows the Court to defer or deny the motion for summary judgment, allow more time for discovery, or issue an “appropriate order.” Fed.R.Civ.P. 56(d). There are several problems, however, with Mr. Plummer's Rule 56(d) declaration. First, it was filed not as a nonmovant as required by Rule 56(d), but in conjunction with Mr. Plummer's own Motion for Summary Judgment. Second, nowhere in the declaration or in the Plummers' briefing do the Plummers explain what they would like the Court to do in response to the declaration. Third, Mr. Plummer's response brief-which was filed in part as a nonmovant-does not renew any request for Rule 56(d) relief. Fourth, the party seeking Rule 56(d) relief must set forth “specified reasons” that the party lacks sufficient evidence to oppose summary judgment. The only specified reason given for the Rule 56(d) declaration was that Mr. Plummer needed to take a deposition of a witness to the alleged 2016 oral contract. But, as explained below, no additional evidence could save the oral contract from its fate under the statute of frauds. The other stated reason is that Mr. Plummer's attorney is seeking “clarification” of certain discovery responses from Panhandle's attorney. That statement is far too vague to justify any Rule 56(d) relief. For these reasons, the Court DENIES any relief that Mr. Plummer's Rule 56(d) declaration may be construed to request.

         Finally, at multiple points in the Plummers' response brief, the Plummers respond to Panhandle's assertions of fact as follows: “Defendants are without knowledge to admit or deny the contents of Paragraph [X].” [Filing No. 94 at 1-2.] But while an answer to a complaint may properly contain such statements, Fed.R.Civ.P. 8(b)(5), responses to factual assertions on summary judgment must be supported by citations “to particular parts of materials in the record, ” Fed.R.Civ.P. 56(c)(1)(A). “[S]ummary judgment is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (internal quotation omitted). The Plummers' responses, which indicate that they are “without knowledge” regarding certain facts, demonstrate only that they have failed to controvert Panhandle's factual assertions. The Court deems the Plummers to have admitted Panhandle's factual assertions where they offered such responses. SeeFed. R. Civ. P. 56(e) (“If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may[] . . . consider the fact undisputed for purposes of the motion . . . .”).


         Facts for Summary Judgment

         The following factual background is set forth pursuant to the standards detailed above.[1]The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         A. Status of 100 Line & 400 Line

         Panhandle owns and maintains four natural gas pipelines that run across easements on the Plummers' Property. [Filing No. 10-1; Filing No. 10-2 at 1-2.] Two of those, the 100 Line and the 400 Line, are at issue in this case. [SeeFiling No. 10; Filing No. 32.] The easements grant Panhandle the right to replace its pipelines and the rights of ingress and egress over the Property. [Filing No. 10-1.] ¶ 1994, Panhandle re-laid the 400 Line, which remains in active service, [Filing No. 10-2 at 1-2; Filing No. 20-1 at 1-2], and decommissioned the 100 Line, [Filing No. 92-3 at 64-65; Filing No. 92-4 at 27]. The 100 Line has been inactive since it was decommissioned in 1994. [Filing No. 92-3 at 65; Filing No. 92-4 at 27.] Panhandle continues to treat the ground above the 100 Line as it would an active pipeline right of way by maintaining above-ground markers, remaining active in Indiana's “one-call system” for construction and digging projects, and issuing notices for clearing activity. [Filing No. 92-2 at 33; Filing No. 92-5 at 40-41.] The inactive 100 Line remains subject to federal regulations set forth by the Federal Energy Regulatory Commission. [Filing No. 92-1 at 2-3 (citing 15 U.S.C. § 717f(b)); Filing No. 92-5 at 33.]

         B. 1996 Lawsuit & 1999 Settlement

         In 1996, the Plummers sued Panhandle's predecessor (also called Panhandle), alleging that Panhandle damaged the Property when, in 1994, Panhandle undertook a relay and erosion remedy project. [Filing No. 92-6.] The Plummers sought damages, specific performance of certain cleanup work, and declaratory relief, including a declaration that Panhandle had abandoned the 100 Line, which was then called the “200 Line.” [Filing No. 92-6 at 9.]

         In 1999, the parties settled the Plummers' 1996 lawsuit. [Filing No. 10-2 at 2-7.] As part of the Settlement Agreement, the parties “release[d] any and all claims that have been or could have been asserted in connection with the Lawsuit.” [Filing No. 10-2 at 5-6.] The parties also agreed to certain rights and obligations in the Easement Amendment, referenced in the Settlement Agreement. The Settlement Agreement includes a section entitled “Obstructions on Easement”:

2.1 Plummers agree not to plant any growth (other than traditional agricultural growth) or place any structures or parked vehicles within the defined easements unless they have obtained the prior written consent of Panhandle except as further and specifically set forth in the [Easement Amendment.]
2.2 Panhandle shall have the right to clear its rights of way over all pipelines of all growth and obstructions upon reasonable prior notice to the Plummers stating the approximate schedule for such clearing except as provide [sic] in [the Easement Amendment.] Plummers shall temporarily move all stored or parked vehicles and other obstructions off the easement area over the 100 Line after receipt of such notice to permit routine mowing and clearing by Panhandle or its representatives.

[Filing No. 10-2 at 4-5.] The Settlement Agreement also provides for payment of attorney's fees associated with a breach: “7. Enforcement. The party found to be in breach of or in violation of any provision of this Agreement (but not [the Easement Amendment]) shall pay all costs and expenses including reasonable attorneys' fees of the prevailing party in any enforcement action or proceeding connected thereto.” [Filing No. 10-2 at 6.]

         The Easement Amendment, incorporated by reference into certain provisions of the Settlement Agreement, further elaborates upon the parties' rights to the land over the 100 and 400 Lines. Section 3 provides that Panhandle had not relinquished its “rights of ingress and egress . . . across the lands of Grantor . . . as may be necessary for the installation, operation, maintenance, repair and replacement” of Panhandle's pipelines. [Filing No. 10-2 at 10.]

         Section 4, which uses the term “Easement Parcel 2” to describe the 100 Line right of way, further explains what constitutes an encroachment and what Panhandle may properly clear:

Except with respect to the hedges (“Hedges”) and the existing mature trees growing immediately adjacent to the 100 Line (“Trees”) and the septic system, utility lines as presently located in existence within EASEMENT PARCEL 2 (“Encroachments”), and drainage swails as presently located in existence within any of the EASEMENT PARCELS, no . . . structure, facility or tree-like growth shall be hereafter permitted, placed, erected or planted anywhere on the EASEMENT PARCELS other than traditional agricultural growth and the Hedges and Trees . . . . It is understood that Grantee has and shall retain the right to remove, trim, defoliate or otherwise treat any trees or similar forms of vegetation upon the EASEMENT PARCELS to the degree that same may be reasonably necessary in the opinion of Grantee. Grantor grants Grantee the right, from time to time, to cut down, trim and remove from the EASEMENT PARCELS any and all trees, undergrowth and other obstructions (other than the Hedges or Trees). . . . Grantee shall have the right to clear its EASEMENT PARCEL 2 of any obstructions other than existing structures, including, but not limited to, any landscaping, the Hedges or Trees, without compensation to Grantor therefor and without replacement of such obstructions; provided, however, that in connection with any such Work, Grantee shall use its best efforts to preserve the Hedges and Trees; and Grantee thereafter shall continue to use its best efforts to preserve the Hedges and Trees so long as they do not interfere, in Grantee's reasonable determination, with Grantee's immediate access to the pipeline located in EASEMENT PARCEL 2 for emergency maintenance or repair of the offset pipeline in EASEMENT PARCEL 2. Furthermore, Grantor shall not construct, plant or place nor authorize others to construct, plant or place any building, structure, trees or other obstruction of any kind, either upon, above or below the surface of the EASEMENT PARCELS . . . .

[Filing No. 10-2 at 10-11.]

         Section 5 addressed the use of the easements for parking cars:

No portion of the EASEMENT PARCELS shall be utilized . . . for the parking of vehicles, and no impervious type pavement in connection with the establishment or use of any vehicular parking area shall be placed over or within the EASEMENT PARCELS except that Grantor and Grantor's invitees may utilize those portions of EASEMENT PARCEL 2 as reasonably necessary for Grantor's use of the residence immediately adjacent thereto and for the use of Grantor and Grantors customers and invitees in connection with Grantor's business as it is being presently conducted; provided, that the number of vehicles in such permitted parking shall not be expanded beyond the current authorized use ...

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