United States District Court, W.D. Virginia, Harrisonburg Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' motion for just
compensation. (Dkt. 32). This case was previously dismissed
by Plaintiff Atlantic Coast Pipeline pursuant to Federal
Rules of Civil Procedure 41(a)(1)(A)(i) and
71.1(i)(1)(A). (Dkts. 30-31). Defendants contend that
dismissal under Rule 71.1(i)(1)(A) was improper because
Plaintiff had, without permission or court order, allegedly
used an access road on Defendants' property during the
proceedings.Defendants argue this alleged use
constitutes “possession” under the Rule and
precludes dismissal until after just compensation is awarded
for that taking. See Fed. R. Civ. P. 71.1(i)(1)(C).
Thus, the issue before the Court is a narrow one: whether a
plaintiff's unauthorized use of a defendant's
property during a Rule 71.1 proceeding is considered taking
“possession” under Rule 71.1(i)(1)(C). Under Rule
71.1, “possession” means the exercise of control
over land pursuant to a legal right. Because Plaintiff did
not have a legal right to be on the land when it allegedly
used the access road, I find it could not have taken
“possession” within the meaning of Rule 71.1.
Therefore, I will deny Defendants' motion.
Federal Rule of Civil Procedure 71.1(i)
Federal Rule of Civil Procedure 71.1(i), a condemnation
action can be dismissed in one of three ways: by plaintiff,
by stipulation, or by court order. See Fed. R. Civ.
P. 71(i)(1)(A)-(C). Under subsection (A): “If no
compensation hearing on a piece of property has begun, and if
the plaintiff has not acquired title or a lesser interest or
taken possession, the plaintiff may, without a court order,
dismiss the action as to that property by filing a notice of
dismissal briefly describing the property.”
Fed.R.Civ.P. 71(i)(1)(A). Additionally, the action can be
dismissed by stipulation, and without a court order,
“before a judgment has been entered vesting the
plaintiff with title or a lesser interest in or possession of
the property.” Fed.R.Civ.P. 71.1(i)(1)(B). In contrast,
under subsection (C):
At any time before compensation has been determined and paid,
the court may, after a motion and hearing, dismiss the action
as to a piece of property. But if the plaintiff has already
taken title, a lesser interest, or possession as to
any part of it, the court must award compensation for the
title, lesser interest, or possession taken.
Civ. P. 71.1(i)(1)(C) (emphasis added). See, e.g.,
Columbia Gas Transmission Corp. v. An Easement to Construct,
Operate & Maintain a 24-Inch Gas Transmission
Pipeline, No. CIV. 3:07CV00028, 2009 WL 1489935, at *2
(W.D. Va. May 26, 2009) (“[B]ecause [the pipeline] had
already taken possession of the easements described in the
original Complaint by the date of the pretrial hearing,
” pursuant to E. Tennessee Nat. Gas Co. v.
Sage, 361 F.3d 808 (4th Cir. 2004), “dismissing
the action under Rule 71.1(i)(1)(A) was not a
relief Defendants seek rises and falls with the meaning of
the word “possession” in Rule 71.1. Due to the
generally “undeveloped state of case law under Rule
71.1 and its predecessor Rule 71A . . ., ” this remains
an open question without binding or persuasive authority to
lead the way. Columbia Gas Transmission Corp., 2009
WL 1489935, at *2. Thus, the Court interprets the word, and
the Rule, using traditional canons of construction.
a Federal Rule of Civil Procedure is no different from
interpreting a statute.” Robinson v. G D C,
Inc., 193 F.Supp.3d 577, 579 (E.D. Va. 2016) (citing
Marx v. Gen. Revenue Corp., 568 U.S. 371, 376 (2013)
(interpreting Rule 54(d)(1) using a traditional canon of
statutory construction)). “[T]he starting point for
interpreting a [Rule] is the language of the [Rule]
itself.” Consumer Prod. Safety Comm'n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980).
“[U]nless otherwise defined, words will be interpreted
as taking their ordinary, contemporary, common
meaning.” Perrin v. United States, 444 U.S.
37, 42 (1979). This includes interpreting the relevant word
“not in a vacuum, but with reference to the
[Rule's] context, ‘structure, history, and
purpose' . . . not to mention common sense . . . .”
Abramski v. United States, 134 S.Ct. 2259, 2267
(2014) (quoting Maracich v. Spears, 570 U.S. 48, 76
word “possession” does not hold one universal
meaning in all contexts. The Federal Rules of Civil Procedure
do not define the word. And Black's Law Dictionary
provides little clarity:
1. The fact of having or holding property in one's power;
the exercise of dominion over property. 2. The
right under which one may exercise control over
something to the exclusion of all others; the continuing
exercise of a claim to the exclusive use of a material
object. . . .
Possession, Black's Law Dictionary (10th ed.
2014) (emphasis added). Under the first definition,
unauthorized use of the access road, an exercise of
“dominion” over the property, would be considered
“possession” under the Rule. Under the second
definition, unauthorized use of the access road, an act taken
without an exclusive “right” of possession, could
not be “possession” under the Rule. In sum, the
true meaning of the word can vary based on its
single word can be used “in many contexts and with
various shades of meaning, . . . [t]he maxim noscitur a
sociis, that a word is known by the company it keeps,
while not an inescapable rule, is often wisely applied . . .
.” Jarecki v. G. D. Searle & Co., 367 U.S.
303, 307 (1961). “This rule we rely upon to avoid
ascribing to one word a meaning so broad that it is
inconsistent with its accompanying words . . . .”
Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995).
71.1(i)(1)(C), the words immediately surrounding
“possession” demonstrate that the word denotes
the exercise of control over land pursuant to a legal right.
The Rule states: “But if the plaintiff has already
taken title, a lesser interest, or possession as to any part
of it, the court must award compensation for the title,
lesser interest, or possession taken.” Fed.R.Civ.P.
71.1(i)(1)(C). “Possession” is the last word in a
list of words that all refer to legal property rights.
See Title, Black's Law Dictionary (10th ed.
2014) (“The union of all elements (as ownership,
possession, and custody) constituting the legal
right to control and dispose of property; the legal link
between a person who owns property and the property itself .
. . .” (emphasis added)); Interest,
Black's Law Dictionary (10th ed. 2014) (“A legal
share in something; all or part of alegal or
equitable claim ...