United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.
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.
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.
reasons explained below, the Court should deny
Defendants' motion to sever [Dkt. No. 96].
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.
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.
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).
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.
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.
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