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Weaver Enterprises Inc. v. East Tennessee Natural Gas LLC

United States District Court, W.D. Virginia, Roanoke Division

April 10, 2017

WEAVER ENTERPRISES, INC., ETC., Plaintiff,
v.
EAST TENNESSEE NATURAL GAS LLC, ETC., ET AL., Defendants.

          C. Richard Cranwell, Cranwell & Moore, P.L.C., Roanoke, Virginia, and William B. Hopkins, Jr., Martin, Hopkins & Lemon, P.C., Roanoke, Virginia, for Plaintiff and Counter Defendant Weaver Enterprises, Inc.; Lela M. Hollabaugh, Bradley Arant Boult Cummings LLP, Nashville, Tennessee, and Roy David Warburton, Warburton Law Offices, Pulaski, Virginia, for Defendant and Counterclaimant East Tennessee Natural Gas, LLC, and Matthew P. Pritts and Justin E. Simmons, Woods Rogers PLC, Roanoke, Virginia, for Defendant Appalachian Power Company.

          OPINION

          James P. Jones United States District Judge.

         This case, involving the disputed interpretation of a property easement, was removed from state court. The plaintiff has moved to remand the case on the ground that this court lacks subject-matter jurisdiction. For the reasons that follow, I find that federal jurisdiction has not been shown, and will remand the case.

         I.

         The basic facts are not in material dispute. East Tennessee Natural Gas, LLC (“East Tennessee”) is a natural gas transmission company that operates interstate gas pipelines in several states, including Virginia. In 2002, it filed an action in this court seeking a condemnation granting a perpetual easement for a 24-inch-diameter gas pipeline across certain land located in this judicial district and owned by the plaintiff Weaver Enterprises, Inc. (“Weaver”).[1] In 2006, the parties settled the case. The only written memorials of the settlement are (1) a document entitled “Release in Full” which references the condemnation suit filed by East Tennessee and the payment amounts made to Weaver for the actual easement and for damages to the remainder of Weaver's land, and (2) an order by a judge of this court entered July 7, 2006, styled as “Agreed Order Granting East Tennessee Right-of-Way and Easement (the “Agreed Order”). The Agreed Order provides in full as follows:

         It appears to the Court, as evidenced by the signature of counsel below, that the parties are in agreement that East Tennessee Natural Gas Company should be granted a right-of-way and easement through and across the property that is the subject matter of this lawsuit and as set forth in the Complaint and the amended exhibits thereto.

Weaver will have right to cross the right of way in a manner consistent to East Tennessee's policies and procedures and upon receipt of ETNG's permission for such crossing. However, East Tennessee agrees it will not unreasonable [sic] withhold its permission for such crossings.
East Tennessee agrees that entry to the property will be by roads on the property (existing) at the time of the entry except in the case of an emergency. In the event of an emergency East Tennessee may enter the property where it deems appropriate to abate the emergency.
All other matters have been settled between the parties and the parties are in agreement that the funds on deposit with the Court for this action should be refunded to Plaintiff, East Tennessee Natural Gas Company, c/o Lela Hollabaugh at the address below.

         IT IS SO ORDERED.

         Answer & Countercl., Ex. A, ECF No. 13.

         On February 7, 2017, Weaver filed suit in state court against East Tennessee and Appalachian Power Company (“APCO”), a public service company providing electric power in Virginia. Weaver's Complaint recites that APCO has obtained by agreement an easement to build a 138-kilovolt electric power line across Weaver's property “mostly parallel and contiguous” to East Tennessee's gas pipeline. Compl. ¶ 9. ECF No. 1-1. Weaver alleges that because of this power line, East Tennessee desires to build a “cable and steel underground grid to protect its gas line.” Id. ¶ 12. East Tennessee contends that the gas line easement obtained in 2006 allows it the privilege of this additional work; Weaver contends to the contrary. Weaver seeks a declaration that East Tennessee did not obtain the right under its existing easement to perform the desired work.

         East Tennessee timely removed Weaver's state action to this court, with codefendant APCO's consent. East Tennessee asserts that the subject-matter jurisdiction of this court exists under 28 U.S.C. § 1331, providing jurisdiction of civil actions arising under the laws of the United States, on the ground that “Plaintiff seeks a determination of the scope of an Order by this Court pursuant to authority granted by 15 U.S.C. 717f(h) and necessarily involves the interpretation of federal laws, including the Natural Gas Act and the Natural Gas Pipeline Safety Act.” Notice of Removal 3, ECF No. 1. It also contends that federal subject-matter jurisdiction exists under 28 U.S.C. § 1337(a), providing for jurisdiction over “any civil action or proceeding arising under any Act of Congress regulating commerce.” Id.

         Following its removal of the action to this court, East Tennessee filed an Answer and Counterclaim, alleging that because of APCO's construction of the high voltage power line, which parallels the gas pipeline for approximately three miles on Weaver's property, East Tennessee must install an “Alternating Current (‘AC') mitigation system . . . . in order to comply with federal law and to ensure the integrity and safety of its pipeline.” Countercl. ¶¶ 13-14, ECF No. 12. ...


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