United States of America Upon the Relation and For the Use of the Tennessee Valley Authority v. An Easement and Right-of-Way over 0.24 Acre of Land, more or less, in Tallahatchie County, Mississippi

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI OXFORD DIVISION UNITED STATES OF AMERICA PLAINTIFF upon the relation and for the use of the TENNESSEE VALLEY AUTHORITY V. CIVIL ACTION NO. 3:18-CV-00169-SA-RP AN EASEMENT AND RIGHT-OF-WAY OVER 0.24 ACRE OF LAND, MORE OR LESS, IN TALLAHATCHIE COUNTY, MISSISSIPPI, et al DEFENDANTS ORDER AND MEMORANDUM OPINION Tennessee Valley Authority (“TVA”) filed its Complaint [1] on August 2, 2018, to acquire a permanent easement and right-of-way across a 19-acre parcel located in Tallahatchie County, Mississippi. Subsequently, pro se Defendants Ora Johnson, Beulah Washington, and Jerlean Hawkins filed an Answer and Counterclaim [8] claiming an interest in the parcel, objecting to the condemnation and taking of the property, and contesting compensation. Presently before the Court is TVA’s Motion to Enter Judgment on the Pleadings or Motion to Strike Defendants’ Objection and Counterclaims [36] and TVA’s Motion for Summary Judgment on the Issue of Just Compensation [38]. The issues are fully briefed and ripe for review. Factual and Procedural Background In 2014, TVA announced a new transmission line to be built in Tallahatchie County, Mississippi. One of the properties the new transmission line will cross is a 19-acre parcel. This lawsuit involves the taking of a 0.24-acre easement across the 19-acre parcel for the new transmission line. In August 2018, TVA filed its Complaint [1], Declaration of Taking [2], and Notice of Condemnation [3] pursuant to the TVA Act and Taking Act, to acquire a permanent easement and right-of-way across the 19-acre parcel. After reviewing two appraisal reports valuing the easement at $625 and $650, Ivan J. Antal, II, (TVA’s Manager of Real Property Transactions) determined that the fair market value for the easement and right-of-way taken was $700. See Declaration [381]. TVA deposited this $700 with the Court and the Clerk of the Court noted on the docket the Court’s receipt of the deposit. Ownership of the parcel is uncertain because of multiple generations of intestate succession, so multiple persons and heirs (known and unknown) were served by personal service or publication. See Notices [4, 7, 10]. After service by publication, four individuals filed a response claiming interest in the parcel. Pro se Defendants Ora Johnson, Beulah Washington, and Jerlean Hawkins filed an Answer and Counterclaim [8] where they collectively claimed a 45% interest in the parcel, objected to the condemnation and taking of the property, and contested compensation. Defendants claimed to be the heirs of John Raybon, James Raybon, and Willie Raybon, who were listed in TVA’s Complaint [1] as persons who have or may claim an interest in the property. The fourth Defendant, Johnny D. Harper, filed a Motion [29] seeking relief from the expert disclosure deadline. His attorney William Kellum later made an appearance, but neither Harper or Kellum made expert disclosures before the amended April 1, 2019 deadline and neither has made any such disclosure as of this date. See Notice of Appearance [32]. TVA now requests that the Court grant its Motion [36] to Enter Judgment on the Pleadings or in the alternative, to Strike Defendants’ Objection and Counterclaims. TVA also requests that the Court grant its Motion [38] for Summary Judgment on the Issue of Just Compensation. Legal Standard Under Rule 12(c), “After the pleadings are closed–but early enough not to delay trial–a party may move for judgment on the pleadings.” FED R. CIV. P. Rule 12(c). This motion is designed to “dispose of cases where material facts are not in dispute and judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noted facts.” Williams v. Jenkins, No. 3:08-CV-69, 2009 WL 1323008 , at *1 (N.D. Miss. May 12, 2009); Herbert Abstract Co., Inc. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir. 1990). Granting a motion for judgment on the pleadings is “appropriate only if material facts are not in dispute and questions of law are all that remain.” Williams, 2009 WL 1323008 , at *1; Voest-Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 891 (5th Cir. 1998). Regarding a motion to strike, Rule 12(f) states that “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party . . .” FED. R. CIV. P. Rule 12(f). Under Rule 56 of the Federal Rules of Civil Procedure, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In other words, “summary judgment is proper only when the record demonstrates that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.” Luv N’ Care Ltd. v. Groupo Rimar, 844 F.3d 442, 447 (5th Cir. 2016). The movant bears the burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015). Discussion and Analysis A. Whether Defendants’ Objection and Counterclaims are Permitted. i. Defendant’s Objection and Counterclaims. Pro se Defendants Ora Johnson, Beulah Washington, and Jerlean Hawkins filed the following objection and counterclaims: 1. [TVA] is not lawfully entitled to take the defendant’s property for the purpose described in the complaint due to . . . Section 306(b) failure to purchase property [in] its [entirety] with fair and just price prior to the [commencement] of [condemnation] action with good faith dealings [8]. 3. Defendant request[s] the court to Order [TVA] to make a just and fair offer to purchase the entire property in good faith for said property so Defendant may present offer to other heirs of family owned property prior to the commencement of condemnation of said Property [8]. 4. Defendant request the Court if upon not obtaining said Order within paragraph 3 then, [TVA] shall make a good faith just and fair offer for the partial part that Plaintiff wants to add permanent easement and right-[of]-way on said Property [8]. 5. Defendant request[s] the Court for a jury trial for a fair and just cost of said partial part of said Property [8]. ii. Federal Condemnation Law is Governed by the TVA Act, the Taking Act, and Rule 71.1. The Defendants contest the taking of the 0.24-acre of the parcel by citing “Section 306(b)” in their Answer [8]. It is unclear what this law is. TVA argues that this case is governed by the TVA Act, the Taking Act, and Federal Rule of Civil Procedure 71.1. Federal condemnation law, and this case specifically, is governed by the TVA Act, the Declaration of Taking Act (“Taking Act”), and Rule 71.1. 16 U.S.C. § 831c(i); 40 U.S.C. § 3114 ; FED. R. CIV. P. Rule 71.1. To the extent that “Section 306(b)” is state law, it has no bearing here. Id. “The right of the United States to exercise the power of eminent domain is ‘complete in itself’ and ‘can neither be enlarged nor diminished by a State.’” United States ex rel. TVA v. Powelson, 319 U.S. 266, 279 , 63 S. Ct. 1047, 1054 , 87 L. Ed. 1390 (1943) (quoting, in part, Kohl v. United States, 91 U.S. 367, 374 , 23 L. Ed. 449 (1875). The law that pertains to this condemnation action is found in the TVA Act, the Taking Act, and Rule 71.1. 16 U.S.C. § 831c(i); 40 U.S.C. § 3114 ; FED. R. CIV. P. Rule 71.1. Because this case is governed by the TVA Act, the Taking Act, and Rule 71.1, the Defendants’ objection to the condemnation and taking of the property citing “Section 306(b)” is inapplicable. Id. iii. Counterclaims Are Not Permitted in Federal Condemnation Actions. TVA argues that the Court lacks jurisdiction over counterclaims because the counterclaims are not permitted against the United States in condemnation cases. The Defendants assert the following as counterclaims: (1) a request that the Court order TVA to make a just and fair offer to purchase the entire property, (2) a request that the Court order TVA to make a just and fair offer for the partial part of the property that TVA condemned, and (3) a request for a jury trial for a fair and just cost of the partial part of the property that TVA condemned. Rule 71.1(e) of the Federal Rules of Civil Procedure states that “no other pleading or motion asserting any additional defenses or objections shall be allowed.” See FED. R. CIV. P. Rule 71.1(e). Federal courts have interpreted this to mean no counterclaims are permitted. United States ex rel. TVA v. An Easement and Right-of-Way over 4.4 Acres of Land, No. A.93-CV-313, 1994 WL 1890931 , at *1 (N.D. Miss. Sept. 27, 1994). Because of the Federal courts’ interpretation of Rule 71.1(e), it is clear that “a counterclaim may not be asserted in a condemnation action filed by the United States.” United States ex rel. TVA v. Tree-Cutting Right With Respect to a Preexisting Easement and Right-of-Way Over Land in Clay Cnty., Miss., No. 1:07CV133-M-D, 2008 WL 2178151 , at *2 (N.D. Miss. May 22, 2008). The counterclaims made by the Defendants’ are not permitted in this case. iv. No Requirement to Negotiate or Acquire Entire Parcel. The Defendants also request that the Court order TVA to make a just and fair offer to purchase either the entire property or the portion of the property that TVA condemned. TVA argues that they are under no duty to negotiate an offer with Defendants and no duty exists that requires them to offer to purchase the entire property. Neither the TVA Act nor the Taking Act provide a requirement to negotiate or offer to purchase the entire parcel in federal condemnation actions. 16 U.S.C. § 831c(i); 40 U.S.C. § 3114 . The TVA Act provides that: [TVA] may proceed to exercise the right of eminent domain, and to condemn all property that it deems necessary . . . and all such condemnation proceedings shall be had pursuant to the provisions and requirements . . . conferred by sections 3114, 3115, and 3118 of Title 40. 16 U.S.C. § 831c(i). Section 3114, the Taking Act, states: [t]he declaration of taking shall contain … (1) a statement of the authority under which . . . the land is taken, (2) a description of the land taken that is sufficient to identify the land, (3) a statement of the estate or interest in the land taken for public use, (4) a plan showing the land taken, and (5) a statement on the amount of money estimated by the acquiring authority to be just compensation for the land taken. 40 U.S.C. § 3114 (a)(1)-(5). Neither of the Acts require TVA to negotiate or offer to purchase the entire parcel in federal condemnation actions. 16 U.S.C. § 831c(i); 40 U.S.C. § 3114 . TVA has met its requirements in order to exercise its right of eminent domain. 40 U.S.C. § 3114 (a)(1)-(5). The Defendants’ objection falls short. v. Request for Jury Trial Is Not a Counterclaim. Defendants made a request for a jury trial as a counterclaim. TVA argues that the Defendants’ request for a jury trial is not a counterclaim. According to the Taking Act, “compensation shall be determined and awarded in the proceeding and established judgement.” 40 U.S.C. § 3114 (c)(1). In Kirby Forest Industries, Inc. v. United States, the Supreme Court states that “[i]n subsequent judicial proceedings, the exact value of the land . . . is determined.” Kirby Forest Industries, 467 U.S. 1, 5 , 104 S. Ct. 2187, 2191 , 81 L. Ed. 2d 1 (1984). “The issue of just and adequate compensation . . . is a matter to be resolved at trial, and is not a defense to the condemnation and taking.” United States ex rel. TVA v. Easements and Rights-Of-Way Over a Total of 15.69 Acres of Land, More or Less, in Gordon Cnty., Ga., 589 F. Supp. 2d 1349, 1362-63 (N.D. Ga. 2008). Defendants request a jury trial to determine compensation as a counterclaim. This should be interpreted by the Court as a standard request for a jury trial, and not a defense. “In an action involving eminent domain under federal law, the court tries all issues, including compensation, except when compensation must be determined (A) by any tribunal specially constituted by a federal statute . . . or (B) . . . by a jury when a party demands one within the time to answer . . .” FED. R. CIV. P. 71.1(h)(1). Whether the $700 is just compensation for the property is a matter that will be determined in the proceedings. 40 U.S.C. § 3114 (c)(1); FED R. CIV. P. 71.1(h)(1). A request for jury trial is not a counterclaim, so the Court liberally interprets this as a standard request for a jury trial by the pro se Defendants. B. Amount of Compensation. TVA argues that summary judgment should be granted if Defendants fail to respond to their motion [38] with evidence on the issue of compensation. “The burden of establishing the value of the lands sought to be condemned [is] on respondent.” United States ex rel. TVA v. Powelson, 319 U.S. 266, 273 , 63 S. Ct. 1047, 1052 , 87 L. Ed. 1390 (1943). The Defendants provide no evidence contesting the $700 compensation or showing an alternative estimate of just compensation. The Defendants must properly contest compensation or otherwise provide an alternative estimate of just compensation and apportionment. Id. Furthermore, the evidence of independent appraisals provided by TVA demonstrates that the amount of $700 deposited with the Court is just compensation. See Declaration [38-1]. The court has adopted the conventional method of appraisal as an acceptable means in valuing property taken by the Government. See United States v. Va. Elec. Power Co., 365 U.S. 624, 632 , 81 S. Ct. 784, 790 , 5 L. Ed. 2d 838 (1961). “When the moving party presents an appraisal by a credentialed property appraiser and the non-moving party does not contest it, that moving party is entitled to judgment as a matter of law.” United States v. An Easement and Right-of-Way Over .14 Acre of Land, More or Less, in Oktibbeha County, Mississippi, No. 1:17-CV-151, 2019 WL 1031079 , at *2 (N.D. Miss. Mar. 4, 2019) (quoting United States ex rel. TVA v. Tree-Removal Rights with Respect to land in McNairy County, Tenn., No. 15-1008, 2015 WL 5499434 , at *3 (W.D. Tenn. Sept. 16, 2015). Additionally, “the Fifth Circuit has also affirmed the use of summary judgment to determine just compensation in a condemnation proceeding.” United States v. An Easement and Right-of-Way Over .61 Acre of Land, More or Less, in Clay County, Mississippi, No. 1:17-CV192, 2019 WL 1029538 (N.D. Miss. March 4, 2019); see Bibb County v. United States, 249 F.2d 228, 232 (5th Cir. 1957). Because TVA demonstrated just compensation through providing evidence of independent appraisals and the Defendants have failed to properly contest the issue of compensation, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. FED R. CIV. P. Rule 56. Summary judgment should be granted. C. Apportionment of Compensation Among Defendants. Because ownership of the property is still unknown or in dispute, the issue of apportionment of the $700 compensation is still to be decided. “After a deposit, the court and attorneys must expedite the proceedings so as to distribute the deposit and to determine and pay compensation.” FED. R. CIV. P. 71.1(j)(2). In TVA’s memorandum [39] supporting its Motion for Summary Judgment, TVA proposed a procedure for final disposition of this action and disbursement of deposited funds that would allow the Court to close the case. This procedure was recently adopted by the Middle District of Georgia. See Sabal Trail Trans., LLC v. Real Estate, No. 4:16-CV-122, 2017 WL 3599163 , at *1 (M.D. Ga. Aug. 21, 2017). Essentially, the procedure in Sabal Trail allows the funds to remain on deposit by further order of the Court. Id. at *2. The named Defendants, or any other named or unnamed person who claims interest in the compensation, can then seek disbursement of the compensation by filing an application with this Court accompanied by the following: the necessary tax-identification information and adequate documentation confirming entitlement to the claimed share of the compensation. Id. The procedure is described below: Defendants may apply to the Court for distribution of the award in accordance with their respective ownership interests. Defendants may apply for a distribution of the award by sending an application to the Clerk of Court . . . The Clerk shall docket each application electronically. The application should include:  The applicant's name, address, and email address (if any).  The applicant's claimed interest in the property and the basis for that claim.  Proof of the applicant's interest in the property. Id. This procedure is supported by the Declaration of Taking Act. 40 U.S.C. § 3114 (c). The Act states that “[o]n application of the parties in interest, the court may order that any part of the money deposited in the court be paid immediately for or on account of the compensation to be awarded in the proceeding.” Id. If any deficiency occurs once compensation is finally awarded, “the court shall enter judgment against the Government for the amount of the deficiency.” Id. Alternatively, the Court may retain jurisdiction over the issue of apportionment and refer the issue of apportionment to the magistrate judge. See United States v. 22.70 Acres of Land, more or less, situated in Cameron Parish, La., No. 08-0269, 2012 WL 6759009 (W.D. La. Dec. 28, 2012) (adopting the Magistrate Judge’s Report and Recommendation determining the interests held by landowners in a Federal Condemnation action). Conclusion This case is governed by the TVA Act, the Taking Act, and Rule 71.1. Consequently, the Defendants’ objection to the condemnation and taking of the property citing “Section 306(b)” is inapplicable. Neither the TVA Act or the Taking Act require TVA to negotiate or offer to purchase the entire parcel in federal condemnation actions. Additionally, the counterclaims made by the Defendants’ are not permitted in this case. Because of the reasoning above, TVA’s Motion to Enter Judgment on the Pleadings [36] is GRANTED. TVA’s request to strike is moot because the Motion to Enter Judgment on the Pleadings [36] is granted. Because TVA demonstrated just compensation through providing evidence of independent appraisals and the Defendants have failed to properly contest the compensation, the Court finds that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law under Rule 56. TVA’s Motion for Summary Judgment [38] is GRANTED.1 Finally, in order to resolve the issue of apportionment, the Court adopts the procedure used by the Middle District of Georgia. The named Defendants, or any other named or unnamed person who claims interest in the compensation, may seek disbursement of the compensation by filing a written request with this Court with the necessary information and documentation demonstrating that they are entitled to their claimed share of the compensation. PROCEDURE FOR PAYMENT OF COMPENSATION I. CLAIMANT’S REQUEST FOR OBTAINING DISBURSEMENT. Claimants may apply to the Court for distribution of the award in accordance with their respective ownership interests. Claimants may apply for a distribution of the award by sending a written request to the Clerk of Court Federal Building Room 369 911 Jackson Avenue East Oxford, MS 38655. The Clerk shall docket each written request electronically. The request should include: - The applicant’s name, address, and email address (if any). - The necessary tax-identification information. - The applicant’s claimed interest in the property and the basis for that claim. - Proof of the applicant’s interest in the property. Requests must be postmarked by September 16, 2019. Any questions regarding the process should be directed to the Clerk’s office via telephone ((662) 234-1971) or email 1 Because the Court grants summary judgment on the issue of just compensation in TVA’s favor here, this case will not proceed to trial as scheduled, and TVA’s Motion in Limine [41] is now moot. (ecf_information@msnd.uscourts.gov). If multiple requests are received, the Court will schedule a hearing to determine how the proceeds should be distributed. II. PROVIDING NOTICE TO DEFENDANTS The Clerk shall serve a copy of this Order via U.S. mail on each of the Defendants and respondents with known addresses listed in Appendix A to this Order; according to the Plaintiff, those are the correct addresses. III. LEGAL TITLE TO EASEMENTS The Plaintiff shall submit to the Court a proposed final order vesting legal title to the permanent and temporary easements. It is so ORDERED, on this the 15th day of August, 2019. /s/ Sharion Aycock UNITED STATES DISTRICT JUDGE APPENDIX A Margaret J. McBlackwell Redmond 7600 South MLK Drive Chicago, Illinois 60619 Earnest Raybon 3009 Pennsylvania Avenue Apt. 2 St. Louis, Missouri 63118 Ellen Powell 2511 University Street St. Louis, Missouri 63115 Mildred Towns 7955 South State Street Chicago, Illinois 60619 LaShawn Towns 17333 Cayuga Drive Apt. E Westfield Indiana 46074 Eric Towns P.O. Box 885 Orland Park, Illinois 60462 Lorenzo Raybon 8758 Cashio Street, Apt. 7 Los Angeles, California 90035 Isaiah El 6520 Perry Court St. Louis, Missouri 63121 Barbara Payne 1116 Kingston Crossing O’Fallon, Missouri 63366 Delores Rayborn 338 California Street St. Louis, Missouri 63118 Lisa Mauldin 1727 Chiquita Terrace Street St. Louis, Missouri 63138 Bobette Claxton 5330 Bartmer Avenue St. Louis, Missouri 63112 Kevin Mauldin 4123 Mildness Court Florissant, Missouri 63034 Alvin Mauldin 9254 Halls Ferry Road St. Louis, Missouri 63136 Marvin Mauldin 14 Chambers Road St. Louis, Missouri 63137 Tyrone Mauldin 1831 North Hanley Road St. Louis, Missouri 63114 Marqua Crenshaw 8432 Buckthorn Drive Berkeley, Missouri 63134 Erica Crenshaw 8414 Buckthorn Drive Berkeley, Missouri 63134 Jesse Taylor 8556 Church Road St. Louis, Missouri 63147 Johnny Harper 4451 Forest Park Avenue, Apt. 315 St. Louis, Missouri 63108 Teah Harper Little 803 Magnolia Circle Jonesboro, Georgia 30236 Tony Lee Meriweather 5298 Berkshire Street Detroit, Michigan 48224 Wanda Jean Meriweather 12801 East Mack Avenue, Apt. 311 Detroit, Michigan 48215 Lee Albert Meriweather 12801 East Mack Avenue, Apt. 311 Detroit, Michigan 48215 Barbara Jean Meriweather 4674 Saint Antoine Street Detroit, Michigan 48201 Carmaletta Meriweather 23807 Tuscany Street Eastpointe, Michigan 48021 Gary Gerrille Grayson 7044 Toepfer Road Warren, Michigan 48091 Jerlean Hawkins P O Box 801 Webb, MS 38966 Ora Johnson P O Box 801 Webb, MS 38966 Beulah Washington P O Box 801 Webb, MS 38966 DeAdrian Harper 1600 Pine Bld. 20 Apt. 1403 St. Louis, MO 63103 The addresses of the following Defendants are unknown and a copy of this document shall remain on file with the Clerk of this Court for these Defendants: Unknown Heirs of Allie Ringo Unknown Heirs of Ollie Ringo Unknown Heirs of Paolie Ringo Unknown Heirs of Isham McAfee Unknown Heirs of Addie McBlackwell Unknown Heirs of Marie McBlackwell Landruse McBlackwell Unknown Heirs of Essie L. McBlackwell Sarah Lee McBlackwell Claudette McBlackwell Anita McBlackwell Russell McBlackwell Arnold McBlackwell Sharen McBlackwell Emile McBlackwell Charlene McBlackwell Marcia McBlackwell Harrietta McBlackwell Unknown Heirs of Barnard McBlackwell Unknown Heirs of Denise McBlackwell Unknown Heirs of Ruby May McBlackwell Unknown Heirs of Josephine McBlackwell Cashmire Wilkins Unknown Heirs of Katherine McBlackwell-Willis Greene Unknown Heirs of James Roosevelt McBlackwell Unknown Heirs of Sophia F. McBlackwell Ross Unknown Heirs of Alice A. McBlackwell Unknown Heirs of Thomas McBlackwell Unknown Heirs of William A. Mabron Unknown Heirs of Soddie McBlackwell Unknown Heirs of Andrew McBlackwell Unknown Heirs of D.L. McBlackwell Unknown Heirs of July F. McBlackwell Matty McBlackwell Viddie Love Virdie Love Unknown Heirs of John L. Raybon Unknown Heirs of James O. Raybon Unknown Heirs of Willie A. Raybon Unknown Heirs of Addie Lee Raybon Taylor Unknown Heirs of Pauline Morris Unknown Heirs of James L. Birdon Unknown Heirs of Candis M. Patton Unknown Heirs of Lillian Reed Unknown Heirs of Ollie Reed Unknown Heirs of Addie Reed Unknown Heirs of George Wilson Unknown Heirs of Carrie Powell Unknown Heirs of Willie Townes Unknown Heirs of William Moore Unknown Heirs of James Reed Venita Crenshaw-Thomas Bobbette Claxton Unknown Heirs of Ioh McBlackwell Unknown Heirs of Isiah McBlackwell Unknown Heirs of Rachel McBlackwell Unknown Heirs of Mary McBlackwell Unknown Heirs of El McBlackwell Unknown Heirs of Elnora Hudson Unknown Heirs of Mary Hudson Unknown Heirs of Isaiah Hudson Unknown Heirs of Elsie Badie Unknown Heirs of Josie Moore Unknown Heirs of Washington Moore Unknown Heirs of Clyde Lee Moore Unknown Heirs of George W. Read Unknown Heirs of Clarrinda Newman Ethel M. Carnell William A. Black Clarenda M. Buckley Lucy Moore Buckingham Clarenda Ford Unknown Owners ----END---