Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown County Water Utility, Inc. v. Town of Nashville

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

May 15, 2019

BROWN COUNTY WATER UTILITY, INC., Plaintiff,
v.
TOWN OF NASHVILLE, INDIANA, CHARLES KING, JANE GORE, ALISHA JACOB A, ARTHUR OMBERG, and DAVE RUDD, Defendants.

          ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on cross-motions for summary judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants Town of Nashville ("Nashville"), Charles King, Jane Gore, Alisha Jacoba, Arthur Omberg, and Dave Rudd (collectively, "Defendants") (Filing No. 57). and Plaintiff Brown County Water Utility, Inc. ("Brown County Water") (Filing No. 63). Also pending is Defendants' Objection to Undisclosed Expert Opinion (Filing No. 67). Brown County Water initiated this litigation alleging the Defendants are encroaching upon its water service rights, in violation of 7 USC 1926(b). Defendants filed a motion for summary judgment, contending they are entitled to judgment as a matter of law because Brown County Water is encroaching on their water service rights. Brown County Water filed a cross motion making a similar argument. For the following reasons, the Court denies the cross-motions for summary judgment and overrules the Defendants' Objection to Undisclosed Expert Opinion.

         I. BACKGROUND

         This case involves the parties' dispute as to which entity is allowed under federal regulation to provide water services to a property located in Brown County, Indiana ("Brown County").

         The property at issue in this case is located in Brown County in an area commonly known as Firecracker Hill. The property is east of Greasy Creek Road and Memorial Drive, south of Creamer Road, and north of Old State Road 46. In December 2016 a new customer, Big Woods Brewing Co. LLC ("Big Woods"), purchased two undeveloped parcels and began constructing a distillery, brewery, restaurant and event center on the property on Firecracker Hill. Big Woods completed construction on key phases by December 2017 and August 2018 and the restaurant and other facilities are presently open. (Filing No. 31-2 at 1-2, 6-7; Filing No. 58-4 at 2; Filing No. 64-6 at 3, 15; Filing No. 64-7 at 4; Filing No. 64-8 at 4). Big Woods requires a six-inch water main to adequately service its facilities with water. (Filing No. 5-4 at 2).

         Brown County Water is a federally-indebted, rural not-for-profit corporation in the business of supplying water to customers in and surrounding Brown County, Indiana (Filing No. 49 at 1). When this lawsuit began in early 2017, Brown County Water had 5, 339 customers and provided water to its customers who are located throughout most of Brown County and parts of Bartholomew County, Johnson County, Morgan County, and Monroe County (Filing No. 5-3 at 2).

         The town of Nashville is an Indiana municipality located in Brown County, and individual Defendants Charles King, Jane Gore, Alisha Jacoba, Arthur Omberg, and Dave Rudd are members of the Nashville Town Council (Filing No. 49 at 2). In 1977, Nashville obtained $568, 000.00 in funding from the United States Department of Agriculture to complete a project involving the construction of 75, 000 feet of new distribution mains, and as part of the project, Nashville installed a six-inch water main along Old State Road 46 directly in front of the property at issue in this case (Filing No. 31-1 at 1-2; Filing No. 58-1 at 5).

         In December 2010, Brown County Water financed significant improvements to its infrastructure through federal loans issued by the United States of America, acting by and through the Rural Development Agency of the United States Department of Agriculture ("USD A"). As of December 2016, Brown County Water was indebted to the USDA in the amount of $4, 973, 674.92 and was making monthly payments of $19, 533.00. The longest term of Brown County Water's federal loans will mature in December 2050 (Filing No. 5-3 at 1-2; Filing No. 5-1 at 1-2).

         On June 3, 2016, the USDA issued to Nashville a "letter of conditions" for a $1, 220, 000.00 federal loan for a project that included installation of an automated meter reading system, which would be used to service Nashville's water mains including the six-inch water main along Old State Road 46 (Filing No. 31-1 at 2, 18-19; Filing No. 58-3 at 2-3). The letter of conditions provided that the "loan/grant will be considered approved on the date Form RD 1940-1, 'Request for Obligation of Funds,' is signed by the approving official," (Filing No. 31-1 at 19), and the approving official signed Form RD 1940-1 on June 3, 2016 (Filing No. 70-3). The USDA had previously provided Nashville with approximately $26, 625.00 in pre-planning grant funds for the project in 2016 (Filing No. 31-1 at 2. 18-20). On October 10, 2018, the USDA loaned Nashville $967, 000.00 for its project (Filing No. 70-2).

         Nashville annexed the Big Woods property on April 20, 2017, and passed an ordinance to establish the property as within its exclusive water service area on May 15, 2017 (Filing No. 5-8 at 2-3; Filing No. 5-12 at 2-3). Nashville then entered into a contract with Big Woods on May 18, 2017, to provide water services to the property (Filing No. 58-2 at 23-28). In July 2017, Nashville connected its six-inch water main along Old State Road 46 to the property and began providing water service to the property (Filing No. 31-2 at 2). On February 7, 2018, Nashville received approval from the Indiana Utility Regulatory Commission ("IURC") to establish the property as within its exclusive water service area (Filing No. 58-5).

         On June 20, 2017, two months after Nashville annexed the Big Woods property but shortly before the town connected its water main to the property and began providing water services, Brown County Water filed this lawsuit, alleging that its water service area included the Big Woods property, and Nashville was encroaching on its service area (Filing No. 1).

         Brown County Water began providing water services to a customer adjacent to what would become the Big Woods property (the "Reichman property") beginning in February 1974. Brown County Water provided water to the Reichman property and the surrounding area through a two-inch water main. After initiating this lawsuit, Brown County Water upgraded its two-inch water main to a six-inch water main, completing the upgrade on August 10, 2017, and placing the water main into service on August 15, 2017. This existing six-inch water main runs along Greasy Creek Road and Weddle Lane and runs to the Big Woods property line through an easement on the Reichman property. The connection point is approximately 1, 050 feet from Big Woods' facilities through the Big Woods property. As of September 2018, Brown County Water was serving seventy-seven customers within a half-mile radius of the Big Woods property (Filing No. 64-2 at 2-3; Filing No. 64-3 at 2-3; Filing No. 64-6 at 5. 9-10).

         Brown County Water initiated this lawsuit, seeking injunctive relief and a declaratory judgment that the Big Woods property is in Brown County Water's federally-protected service area and that Nashville is prohibited from providing water service to Big Woods. After months of unsuccessful efforts to resolve their dispute, the parties filed cross-motions for summary judgment concerning their rights to provide water services to the Big Woods property.

         II. SUMMARY JUDGMENT STANDARD

         The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews "the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). "However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Hemsworth, 476 F.3d at 490 (citation omitted). "The opposing party cannot meet this burden with conclusory statements or speculation but only with appropriate citations to relevant admissible evidence." Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).

         "In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). "[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment." Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted).

         These same standards apply even when each side files a motion for summary judgment. The existence of cross-motions for summary judgment does not imply that there are no genuine issues of material fact. R.J. Corman Derailment Serv., LLC v. Int'l Union of Operating Eng'rs., 335 F.3d 643, 647 (7th Cir. 2003). The process of taking the facts in the light most favorable to the non-moving party, first for one side and then for the other, may reveal that neither side has enough to prevail without a trial. Id. at 648. "With cross-motions, [the Court's] review of the record requires that [the Court] construe all inferences in favor of the party against whom the motion under consideration is made." O 'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001) (citation and quotation marks omitted).

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.