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United States v. 0.2853 Acres of Land

United States District Court, N.D. Texas, Dallas Division

September 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
0.2853 ACRES OF LAND, MORE OR LESS, LOCATED IN DALLAS COUNTY, STATE OF TEXAS; CB TITTLE, LTD. and AR1 LAND, LTD.; ET AL., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

         This case was referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Karen Gren Scholer. See Dkt. No. 78.

         As the parties have previously explained in a joint filing, “[t]he United States filed this case [against Defendants CB/Tittle, Ltd. and AR1 Land, Ltd. (“Defendants”)] on October 4, 2016 to acquire 0.2853 acres of land in Dallas, Texas for the Federal Aviation Administration's [(the “FAA”)] continued operation of a Terminal Doppler Weather Radar [(TDWR) facility].” Dkt. No. 27 at 1. In the United States' original complaint in condemnation, it explained that “[t]he public use for which said land is taken is to provide a land site and access for the continued operation of [the TDWR] facility ... which is critical to the National Airspace System.” Dkt. No. 1 at 2 (emphasis added).

         In August 2017, defense counsel requested that the United States amend its original pleading to clarify the boundaries of the easement intended to be taken for the access road to the TDWR facility. See Dkt. No. 98 at Tab 3, E-mail from Charles A. Salazar to Daniel Kastner (Aug. 17, 2017, 1:43 PM). At that time, defense counsel acknowledged that “[t]he Complaint, in paragraph 4, asserts ‘the land is taken to provide a land site and access[, ]'” but defense counsel requested “that the Complaint be amended to identify the land to be acquired for access.” Id. (emphasis added). The United States responded by explaining that “the legal description and survey attached to the complaint and declaration of taking” clearly identified the easement acquired for access to the TDWR facility. See Dkt. No. 98 at Tab 3, E-mail from Daniel Kastner to Charles A. Salazar (Aug. 22, 2017, 12:08 PM). Nonetheless, in March 2019, the United States filed a Notice of Filing Amendment to the Complaint with Declaration of Taking [Dkt. No. 80] and an Amendment to the Declaration of Taking [Dkt. No. 81] to “clarify the access road [easement] acquired as part of this proceeding.” Dkt. No. 80 at 1.

         On June 10, 2019, in response to the United States' amended pleading, Defendants filed a Motion to Sever the United States' Amendment to the Complaint and the United States' Amendment to the Declaration of Taking [Dkt. No. 96] from the United States' claim to the TDWR facility in its original complaint and declaration of taking. Complying with the Standing Order [Dkt. No. 90] in this case, the parties also filed a joint report on the matter. See Dkt. No. 97.

         The issue presented in Defendants' motion is whether the United States' claim to an easement over 2, 639 square feet of road used to access the TDWR facility should be severed from the United States' underlying claim to .2853 acres of land on which the TDWR facility is located. The essence of Defendants' argument is that the land acquisition contemplated in the original complaint is a separate and independent taking from the easement acquisition. Defendants argue that trying the land and easement acquisitions together in a single case will be unduly prejudicial because it will force the fact finder to assess the value of two separate takings on two separate dates. Defendants further argue that Federal Rule of Civil Procedure 71.1(f) does not even authorize the United States to amend its original declaration of taking.

         The United States responds that the original complaint and declaration of taking disclosed the acquisition of both the TDWR site and the easement for access and that the amended complaint and declaration only clarified this point - they did not alter the substance of the taking. Therefore, the United States argues, there is no need to assess the value of the two claims based on separate dates of taking. The United States also maintains that it has unilateral authority to amend its complaint and declaration of taking.

         For the reasons explained below, the Court should deny Defendants' motion to sever [Dkt. No. 96].

         Background

         In 1993 the FAA entered into a ten-year lease to build and operate a TDWR facility on a 0.2853-acre tract (the “Property”). The 1993 lease agreement specifically provided that it encompassed the Property and “a right-of-way for ingress to and egress from the premises.” Dkt. No. 97 at 14. The 1993 lease agreement was renewed for another term, and, in 2013, when the lease was set to expire, the Property's then-owner, Luminant Generation Co., LLC (“Luminant”), leased the Property to the FAA under a new lease agreement to begin on October 1, 2013, and to end on September 30, 2014. See Dkt. No. 35 at 7-15. The 2013 lease agreement also specifically provided that it encompassed the Property and “a right-of-way for ingress to and egress from the premises.” Dkt. No. 97 at 14.

         On March 24, 2015, Defendants acquired the tract of land on which the Property sits. Between the 2013 lease's expiration date and the date that Defendants gained an interest in the tract of land on which the Property sits, the FAA continued to occupy the Property and operate the TDWR facility. Defendants and the FAA subsequently attempted to negotiate a new lease or the voluntary sale of the Property, but their efforts were unsuccessful. On September 21, 2015, Defendants demanded that the FAA surrender possession of the Property. And, on October 4, 2016, the United States moved to acquire the Property by condemnation. See Dkt. No. 1.

         The 2016 complaint in condemnation alleges that “[t]he public use for which said land is taken is to provide a land site and access for the continued operation” of the TDWR facility. Dkt. No. 1 at ¶4 (emphasis added). The United States' declaration of taking further provides that the land acquisition also includes an easement acquisition because the condemnation “is necessary for public use to provide a land site and access for the continued operation” of the TDWR facility. Dkt. No. 4 at ¶2 (emphasis added).

         But, in August 2017, defense counsel contacted counsel for the United States, and, while Defendants acknowledged that the “land is taken to provide a land site and access, ” Defendants requested that the United States amend its pleading to provide clarity on the legal description of the access road leading to the Property. See Dkt. No. 98 at Tab 3, E-mail from Charles A. Salazar to Daniel Kastner (Aug. 17, 2017, 1:43 PM). Counsel for the United States responded to defense counsel's request by confirming that the condemnation action included an easement to access the TDWR facility. See id., E-mail from Daniel Kastner to Charles A. Salazar (August 22, 2017, 12:08 PM). Defense counsel did not dispute or respond to the United States' position. Then, in March 2019, “the United States determined that an amendment to the declaration of taking would provide clarification, both for this case and for potential future landowners[, ]” [Dkt. No. 97 at 24] so it obtained a survey of the access road and filed its amended complaint and declaration of taking on April 17, 2019. See Dkt. Nos. 80-81.

         Three weeks later, Defendants filed their objection to the amended complaint and declaration of taking [Dkt. No. 93] and, on June 10, 2019, Defendants filed the their motion to sever under Federal Rule of Civil Procedure 21. See Dkt. No. 96. In their motion, Defendants contend that the condemnation of the Property and the easement are two separate takings that should be tried as two separate cases. Id. Defendants urge the Court to sever the two claims to avoid undue prejudice and unnecessary burden on the parties and this Court.

         Legal Standards

         Federal Rule of Civil Procedure 21 provides that a “court may ... sever any claim against a party.” Fed.R.Civ.P. 21. The movant bears the burden in seeking severance under Rule 21. See Charalambopoulos v. Grammer, No. 3:14-cv-2424-D, 2016 WL 5942225, *4-5 (N.D. Tex. Oct. 13, 2016). A claim may be suitable for severance “if it is misjoined or might otherwise cause delay or prejudice.” Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571, 574 (5th Cir. 1995); see also 7 Charles Alan Wright, Arthur R. Miller & Mary Kane, Fed. Prac. & Proc. Civ. §1689 (3d ed. 2018) (noting that the party moving for severance must show that “(1) it will be severely prejudiced without a separate trial; and (2) the issue to be severed is so distinct and separable from the others that a trial of that issue alone may proceed without ...


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