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Samaratunga Family Trust v. American Tower, Inc.

United States District Court, W.D. Texas, Austin Division

May 24, 2017





         Before 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.


         In 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 following rights:

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 Microwave System.

         In 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.

         SFT 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.


         To 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. 2009).

         III. ANALYSIS

         A. Breach of ...

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