United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
the Court are Defendant's Motion to Dismiss (Dkt. No. 5);
Plaintiff's Opposition (Dkt. No. 6); and Defendant's
Reply (Dkt. No. 8). The undersigned submits this Report and
Recommendation to the United States District Court pursuant
to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of the
Local Court Rules.
January 2015, the Samaratunga Family Trust
(“SFT”) acquired a three-quarter acre tract of
property in Hays County, Texas (the “Property”).
Dkt No. 1-1 at 2. Fifty years before SFT bought the Property,
Mary and Glen Key, then the owners of the Property, granted
to Shell Pipe Line Corporation, an easement. Dkt. No. 5-1 at
4-6. In exchange for $1, 693.69, the Keys granted Shell the
1. The right to erect, construct, operate, inspect, maintain,
repair, renew, substitute, and remove a microwave station and
all appurtenances thereto consisting of a repeater house
structure, tower, poles, electrical and communication lines,
guy wires, anchors, and other appropriate apparatus,
attachments, and appurtenances, to be installed at the
location or locations to be selected by SHELL. . . .
2. The right to fence a site on the above-described land not
exceeding Fifty feet by Fifty Feet . . . upon which said
repeater house structure, tower and appurtenances thereto
will be located, and to have the exclusive use thereof.
3. The right to construct, maintain, repair and remove an
electric power line consisting of wire, poles, and
appurtenances thereto, and the right of ingress and egress
in, upon, over, across, and through the above-described land
and any adjoining lands owned by GRANTOR, including the right
to use any roadways now or hereafter located thereon and the
right to construct, maintain, repair, improve, and use a
roadway along a route to be selected by SHELL, for any and
all purposes necessary or convenient to the exercise by SHELL
of the rights and easements herein granted.
Dkt. No. 5-1 at 4-5. These rights were granted to
“Shell, its successors and assigns, forever.”
Id. The Easement further provided that it was
“binding upon the heirs, executors, administrators,
successors, and assigns of the parties, ” and the
rights granted could be “leased or assigned, together,
or separately, and in whole or in part.” Id.
As permitted by the Easement, Shell constructed a 180 foot
tower on the property that was part of its Houston-McCamey
1994, Shell sold the tower at issue here (along with nine
other towers) to Bowen-Smith Corporation. Through a series of
name changes and mergers Bowen-Smith Corp. became American
Towers. In 2001, American Towers entered into a license with
New Cingular Wireless, PCS, LLC allowing New Cingular to
conduct cellular communications from Tower No. 1048207-the
tower at issue here (“Tower”). Dkt. No. 5-1 at
7-11. In January 2015, SFT acquired the Property. Some time
thereafter, SFT became aware of the License Agreement between
American Towers and New Cingular and the fact that New
Cingular had installed equipment on the Tower for cell phone
based communications. SFT contends that New Cingular is only
the latest in a series of entities that have been given
licenses by American Towers to conduct cell phone based
telecommunications operations on the Property. SFT contends
that American Towers' License with New Cingular,
constitutes a breach of the Easement, since the Easement only
permits use of a tower for microwave communications, and does
not contain language allowing for other uses or equipment,
including cell phone based equipment.
sued American Towers in Hays County District Court, alleging
breach of contract, quasi-contract, abandonment of the
easement, trespass to real property and violations of the
Texas Theft Liability Act. American Towers removed the case
to federal court based on diversity of citizenship under 28
U.S.C. § 1332(a), and has moved to dismiss under Rule
12(b)(6), arguing that the suit fails to state a claim upon
which relief can be granted because the Easement permits the
use of the Property for cellular communications.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion, a complaint's factual
allegations “must be enough to raise a right to relief
above the speculative level.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff's
pleading obligation requires use of “more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Id. The
Supreme Court has explained that a complaint must contain
sufficient allegations “to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. In evaluating
a motion to dismiss, the Court must construe the complaint
liberally and accept all of the plaintiff's factual
allegations in the complaint as true. See In re Katrina
Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.
Breach of ...