Columbia Gas Transmission, LLC v. Vlahos, No. 3:2014cv00138 - Document 29 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 3/4/2015. Copy mailed to Pro Se Defendant. (jsmi, )
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Columbia Gas Transmission, LLC v. Vlahos Doc. 29 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION COLUMBIA GAS TRANSMISSION, LLC, Plaintiff, v. Action No. 3:14-CV-138 BRIAN A VLAHOS, Defendant. MEMORAN D U M OPIN ION THIS MATTER is before the Court on a Motion for Sum m ary J udgm ent ("Motion") filed by Plaintiff Colum bia Gas Transm ission, LLC ("Colum bia"). ECF No. 22. Defendant Brian A. Vlahos ("Vlahos") opposes the Motion. ECF No. 24. For the following reasons, the Court GRANTS Colum bia's Motion. ECF No. 22. I. Factu al an d Pro ce d u ral Ba ckgro u n d The facts of this case are straightforward, especially since the parties filed detailed stipulations of fact. See ECF No. 20 . In sum , Colum bia brings this action, seeking declaratory and injunctive relief, against Vlahos relating to a fence he built on a right-of-way easem ent for an underground natural gas pipeline. Colum bia is a lim ited liability com pany, the sole m em ber of which is Colum bia Energy Group, Inc. ("CEG"). ECF No. 23 at 2, 1. Vlahos, an individual, purchased, currently owns, and presently resides on real property located at 60 6 Wishart Circle, Richm ond, Virginia 23229 ("property"). Id. at 3, 3-4. Vlahos purchased this property by a warranty deed, which was recorded May 29, 20 0 9 in the land records of Henrico County, Virginia. Id. at 3, 5-7. Pursuant to this deed, the property was purchased "subject to conditions, restrictions, reservations and easem ents of record," including two right-of-way ("ROW") agreem ents. Id. at 3, 8-9; see ECF No. 20 at 2-5. The first right-of-way agreem ent, dated J uly 6, 1950 ("1950 ROW"), granted an easem ent on the property to Com m onwealth Natural Gas Corporation ("Com m onwealth Natural") from G.T. 1 Dockets.Justia.com Carter and Gertrude Carter. Id. at 4, 14. The 1950 ROW stated [that Com m onwealth Natural] its successors, and assigns, [shall have] the right to lay, m aintain, operate and rem ove a pipe line, or pipe lines, for the tran sportation of gas, oil, petroleum products, or an y other liquids, gases or substances which can be transported through a pipe line. Id. at 4, 17. Furtherm ore, it provided Com m onwealth Natural with "the right of ingress and egress to, from and through" the property subject to the easem ent and "the right at any tim e to lay additional lines of pipe approxim ately parallel to the first line herein provided, upon the paym ent of the price above m entioned for each additional line." Id. It further provided "that the gas line to be laid . . . shall be constructed and m aintained below cultivation, so that Grantors m ay fully use and enjoy the prem ises, subject to the rights of the Grantee to m aintain and operate said line or lines." Id. at 6, 30 . On August 5, 1950 , the 1950 ROW was recorded am ong the land records of Henrico County. Id. at 4, 16. The second right-of-way agreem ent, dated Decem ber 11, 1951 ("1951 ROW"), granted a fifty-foot wide easem ent, which crosses what is now Vlahos' property. The 1951 ROW reaffirm s the 1950 ROW in term s of language and adds that "Grantee further agrees said R/ W is to be 50 'ft . . . ." Id. at 5, 21. The 1951 ROW was recorded on J anuary 7, 1952 in the land records of Henrico County, Virginia. Id. at 5, 22. Collectively, the 1950 and 1951 ROWs create a fifty-foot wide easem ent on the property and dub Colum bia and Vlahos as successors-in-interest to the grantees and grantors, respectively, of the 1950 and 1951 ROWs. Id. at 5-6, 24-29. Since purchasing the property, Vlahos has constructed and m aintained a fence. ECF No. 24 at 2 1-2; see ECF No. 20 at 5, 41 ("A fence ('Fence') on the Property is located within the Easem ent area (the 'Fenced Area'), however, the Fence is not located on top of the Pipeline."). Thus, the fifty-foot wide easem ent is divided by the fence on the property. Running across the property is a high-pressure natural gas transm ission pipeline-the Line VM 112 ("pipeline")which is m aintained and operated by Colum bia. Id. at 6, 34• Installed in 1951, the pipeline was constructed below cultivation on the property and within the easem ent. Id. at 6-7, 37-38. On March 5, 20 14, Colum bia filed suit against Vlahos in this Court, claim ing that the aboveground fence is an encroachm ent. Colum bia contends that this fence im pairs its ability to m aintain 2 and operate its pipeline in a safe and effective m anner, thereby posing a risk to person, property, and the uninterrupted delivery of natural gas to the Richm ond area of Virginia. Despite Colum bia's dem and, Vlahos refused to rem ove the fence. This suit followed, in which Colum bia requests that this Court find that the fence breaches the 1950 and 1951 ROWs and order its rem oval. On J anuary 12, 20 15, Colum bia filed the instant Motion. ECF No. 22. On February 2, 20 15, Vlahos filed his response. ECF No. 24. Colum bia subsequently filed its reply on February 5, 20 15. ECF No. 25. II. Le gal Sta n d ard A. Sum m ary Judgm en t The Fourth Circuit has held that "[W]e are always obliged to construe liberally the contentions being pursued by pro se parties." Sinclair v. M obile 360 , Inc., 417 F. App'x 235, 243 (4th Cir. 20 11) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). In short, therefore, "we im pose on pro se litigants-even those who m ay be cantankerous or m ake extraneous and inappropriate assertions against their opponents or the court-'less stringent standards than form al pleadings drafted by lawyers."' Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (20 0 7)). A m otion for sum m ary judgm ent should be granted where "the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also id. at 32224 (noting that once a party has properly filed evidence supporting the m otion for sum m ary judgm ent, the nonm oving party m ay not rest upon m ere allegations in the pleadings, but m ust instead set forth specific facts illustrating genuine issues for trial). If there is no genuine dispute as to any m aterial fact, it is the "affirm ative obligation of the trial judge to prevent factually unsupported claim s and defenses from proceeding to trial." Drew itt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal quotation m arks om itted). However, if the court finds that there is a genuine issue of m aterial fact, the m otion m ust be denied. A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 2720 (3d ed. 20 11). 3 A court m ust look to the specific facts pled to determ ine whether a triable issue exists. See Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 247-49 (1996). The m oving party bears the burden of establishing the nonexistence of a triable issue of fact by "showing-that is, pointing out to the district court that there is an absence of evidence to support the nonm oving party's case." Celotex, 477 U.S. at 325 (internal quotations om itted). Hence, "[w]hen the nonm oving party fails to m ake a sufficient showing establishing an essential elem ent of [her] case and [she] bears the burden of proof on that issue, there is no genuine issue of m aterial fact, since a com plete failure of proof concerning an essential elem ent of the nonm oving party's case necessarily renders all other facts im m aterial." Cole v. Food Lion, L.L.C., 370 F. Supp. 2d 434, 438 (E.D. Va. 20 0 5) (quoting Celotex, 477 U.S. at 322) (internal quotations om itted). All "factual disputes and any com peting, rational inferences [are resolved] in the light m ost favorable to the party opposing that m otion." Rossignol u. Voorhaar, 316 F.3d 516, 523 (4th Cir. 20 0 3) (internal quotation m arks and citations om itted). Only disputes over facts that m ight affect the outcom e of the suit under the governing law will properly preclude the entry of sum m ary judgm ent. Anderson, 477 U.S. at 248 . "Mere unsupported speculation is not sufficient to defeat a sum m ary judgm ent m otion if the undisputed evidence indicates the other party should win as a m atter of law." Francis u. Booz, Allen & Ham ilton, Inc., 452 F.3d 299,30 8 (4th Cir. 20 0 6). Thus, if the nonm oving party's evidence is only colorable or is not significantly probative, sum m ary judgm ent m ay be granted. Anderson, 477 at 249-50 . III. D is cu s s io n A. Parties’ Argum ents a. Colum bia Colum bia contends that the Court has subject m atter jurisdiction over the case sub judice under 28 U.S.C. § 1332 because there is com plete diversity between the parties and the controversy exceeds $ 75,0 0 0 . With regard to the latter requirem ent, Colum bia argues that, in determ ining whether the am ount in controversy is m et, the value in obtaining the injunction m ust be valued by 4 the potential catastrophic harm of denying relief. Here, Colum bia argues that failure to safely m aintain and operate the pipeline could have catastrophic consequences, including potentially substantial dam age to persons and property in or near the easem ent. Colum bia likens his argum en t to that asserted by the plaintiff in Texas Eastern Transm ission Corp. v. Giannaris, 818 F. Supp. 755, 759 (M.D. Pa. 1993). To m eet the am ount-in-controversy requirem ent, the plaintiff asserted that failing to grant the relief requested could result in a catastrophe-both to the environm ent and hum an life. The Court held as follows: The court concludes that Plaintiff has dem onstrated by a preponderance of the evidence that the value of the right-of-way, the public interest in safety, and the costs which Plaintiff would incur if the pipelines were closed in com bination, exceed the jurisdictional am ount . . . . Id. at 759. Therefore, Colum bia urges this Court to follow the approach taken by the court in Giannaris. Additionally, Colum bia argues that the $ 75,0 0 0 threshold also is m et because daily revenues from the Pipelines exceed $ 13,50 0 . Says Colum bia, "interference with the pipeline that m ay result in a failure of the pipeline threatens to result in lost revenues in addition to dam age to persons and property." ECF No. 23 at 11. In addition, Colum bia contends that there is an actual controversy between the parties concerning whether Vlahos is perm itted to retain the fence in the easem ent. Colum bia seeks a declaratory judgm ent pursuant to 28 U.S.C. § 220 1 that Vlahos' continued refusal to rem ove the fence from the property is a breach of the 1950 and 1951 ROWs. Accordingly, under 28 U.S.C. § 220 1, Colum bia argues that, because there is an actual controversy within the jurisdiction of this Court, the Court "m ay declare the rights and legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 220 1(a). Next, Colum bia argues that the uncontradicted opinion of its pipeline expert that a width of fifty feet free of encroachm ents is necessary for the purposes for which the easem ent was granted entitles Colum bia to sum m ary judgm ent on its claim for declaratory and injunctive relief. Colum bia contends that the uncontradicted facts prove that the fence interferes with the rights granted to Colum bia to safely operate and m aintain the pipeline in the easem ent. Colum bia 5 underscores that there is no question that the ROWs created a fifty foot wide easem ent, which crosses what is now Vlahos' Property. Colum bia argues that it is entitled to exercise the rights also given to it in the ROWS free of interference by Vlahos such as: (1) "the right to lay, m aintain, operate and rem ove a pipe line, or pipe lines, for the transportation of gas, oil, petroleum products, or any other liquids, gases or substances which can be transported through a pipe line;" (2) "the right of ingress and egress to, from and through" the property subject to the Easem ent; and (3) "the right at any tim e to lay additional lines of pipe approxim ately parallel to the first line herein provided, upon the paym ent of the price above m entioned for each additional line." ECF No. 23 at 14. As supported by the declaration of its pipeline expert, Colum bia argues that the continuing presence of the fence in the easem ent interferes with Colum bia's reasonable and proper enjoym ent of the easem ent. Specifically, Colum bia insists that it interferes with it ability to safely operate and m aintain the pipeline. In the event that Colum bia m ust visually inspect or repair the pipeline, Colum bia asserts that it will need the entire easem ent cleared of encroachm ents to have sufficient space for the required trench, spoil pile, and equipm ent. Should the fence rem ain on the property when an em ergency repair is required, Colum bia asserts that the repair will be delayed by the tim e needed to plan for the rem oval of the fence, to deliver equipm ent needed to rem ove the fence, and to actually rem ove the fence. Colum bia underscores that the im portance of preventing unreasonable interference with the easem ent is heightened because the pipeline is a high-pressure natural gas pipeline. Says Colum bia, the potential dangers from a failure of the pipeline are dem onstrated by the fact that Vlahos' residence an d portions of neighboring properties are located within the 174-foot potential im pact radius of the pipeline. Therefore, Colum bia argues that the harm from the interfering use is irreparable and cannot be adequately addressed in dam ages. Accordingly, for these reasons, Colum bia believes that it is entitled to a perm anent injunction requiring the rem oval of the encroachm ents in addition to declaratory relief. b. Vlahos In general, Vlahos attem pts to dispute the opinions asserted by Colum bia's pipeline expert 6 regarding the operation, m aintenance, repair, and proper trenching for high pressure natural gas pipelines. Vlahos opines that the fence does not interfere with Colum bia's rights to operate and m aintain the pipeline and he, specifically, attem pts to rebut Colum bia's pipeline expert's opinion on proper m ethods of trenching, space required for trenching, the significance of delays to repair of the pipeline, and a few other issues. First, he sum m arily states that the soil conditions and the excavation requirem ents of the property are not accurately depicted by Colum bia's pipeline expert. ECF No. 24. at 4. Second, he argues that Colum bia fails to detail the scope of routine m aintenance program s and the specific im pact of the fence on these procedures; Vlahos asserts that the lack of specific data creates a genuine dispute of m aterial fact. Id. Next, Vlahos argues that Colum bia's expert does not state the specific im pact and delay that rem oving the fence would have on excavation schedule. Id. 2-3. Vlahos argues that, because he only installed a "chain-link" fence, as opposed to a "brick fence on the property" that "requires specialized dem olition equipm ent," the fence can be safely and swiftly rem oved "in term s of m inutes by unskilled workers with com m on hand tools." ECF No. 24. at 4, 3. Finally, Vlahos asserts that "m ultiple encroachm ents including fences" have "existed for years [sic] along and across" the pipeline. As such, Vlahos believes that his fence is acceptable and asserts that Colum bia's failure to provide "specific details as to why particular fences in sim ilar proxim ity to the [p]ipeline are acceptable and others are not." Id. 6. B. An aly sis a. Vlahos' Failure to Com ply with the Roseboro Warning Requirem ents Colum bia included the requirem ents set forth in Roseboro v. Garrison, 528 F.2d 30 9 (4th Cir. 1975) in its Motion and accom panying m em orandum of law. ECF No. 22 at 1; ECF No. 23 at 20 . Thus, Vlahos was put on notice twice of the requirem ents of Rule 56 and Local Rule 7(K) of the Eastern District of Virginia of the consequences of failing to properly respond to a m otion for sum m ary judgm ent. Specifically, in relevant part, Colum bia's m oving papers provided that "[t]he Court could dism iss the action on the basis of the m oving party's papers 7 if the pro se party does not file a response; and [t]he pro se party m ust identify all facts stated by the m oving party with which the pro se party disagrees and m ust set forth the pro se party's version of the facts by offering affidavits (written statem ents signed before a notary public an d under oath) or by filing sown statem ents (bearing a certificate that it is signed under the penalty of perjury) . . . .” Colum bia supports its sum m ary judgm ent Motion by subm itting exhibits and testim ony from an expert, attached as "Exhibits" to its m em orandum of law. Vlahos opposes Colum bia's Motion by subm itting a conclusory five-page m em orandum , which, although pointing the Court to various portions of Colum bia's argum ent, does not direct the Court to any evidence in the record or elsewhere to support his assertions. Instead, Vlahos' opposition includes factual contentions that am ount to m ere allegations and un authenticated docum ents.1 See Causey v . Balog, 162 F.3d 795, 80 2 (4th Cir. 1998) (holding that conclusory statem ents, without specific evidentiary support, are insufficient to defeat a m otion for sum m ary judgm ent). Colum bia, as the m oving party, has sustained its sum m ary judgm ent burden 5 6(c) under Rule of dem onstrating absence of any genuine dispute of m aterial fact, see Celotex Corp, 477 U.S. at 323, and Vlahos, as the party opposing sum m ary judgm ent, has failed to com e forward with evidence showing that there is a genuine dispute as to any m aterial fact for trial. See id. at 324. Moreover, Vlahos has not com plied with Local Rule 7(K)(3). This rule, which essentially m irrors the language contained in the Roseboro warnings, provides, The pro se party m ust identify all facts stated by the m oving party with which the pro se party disagrees and m ust set forth the pro se party's version of the facts by offering affidavits (written statem ents signed before a notary public and under oath) or by filing sworn statem ents (bearing a certificate that it is signed under penalty of petjury) E.D. Va. Loc. Civ. R. 7(K)(3). Although he expressed awareness that evidence offered in his 1 Vlahos also identifies him self as an expert, who "holds a Bachelor of Science degree in Electrical Engineering from Virginia Com m onwealth University and has extensive professional experience in both traditional and technology-focused construction industries." ECF No. 24 at 6. He also asserts that his "educational and professional achievem ents have provided him with the necessary skills to effectively discuss, analyze, and question the technical details of Colum bia's claim s regarding the Pipeline." Id. The Court notes that Vlahos' purported expert opinion are not tim ely disclosed in a m anner required under this Court's Scheduling Order. ECF No. 18. 8 opposition m ust be presented in a certain form , Vlahos ignored this rule. See ECF No. 24 at 3 (recognizing that "[t]he non-m oving party's opposition, however, m ust consists of m ore than m ere unsupported allegations or denials and m ust be supported by affidavits or other com petent evidence setting forth specific facts showing that there is a genuine issue for trial") (citing Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324). Vlahos did not provide evidence in the form of an affidavit signed under oath before a notary and did not provide a certification that he signed under penalty of perjury. He only swore to providing true and com plete inform ation. See ECF No. 24 at 5· Although Vlahos identified facts that he alleges are disputed, contentions, he fails to indicate as to m any of the factual personal knowledge or present other com petent and authenticated evidence that supports his view of the facts, thereby failing to com ply with the requirem ents of Federal Rule of Civil Procedure 56(c)(4). See Fed. R. Civ. P. 56(c)(4). Also, appended to Vlahos' opposition are num erous photographs. However, these photographs are not properly authenticated. "It is well established that unsworn, unauthenticated docum ents cannot be considered on a m otion for sum m ary judgm ent." Orsi v. Kirkw ood, 999 F.2d 86, 92 (4th Cir. 1993). "For docum ents to be considered, they 'm ust be authenticated by and attached to an affidavit' that m eets the strictures of Rule 56." Cam pbell v. Verizon Va., Inc., 812 F. Supp. 2d 748 , 750 (E.D. Va. 20 11) (quoting Orsi, 999 F.2d. at 92). Because of the aforem entioned reasons, the Court is em powered under Rule 56 to deem adm itted all of the m aterial facts set forth in Colum bia's Motion. Vlahos was given adequate notice of his obligation to properly respond to Colum bia's Motion and the consequences of not doing so. Because of Vlahos' failure to com ply with the requirem ents set forth in Rule 56, Local Rule 7(K), and the Roseboro warning contained in Colum bia's Motion, this Court will accept the truth of Colum bia's factual allegations and determ ine whether it is entitled to sum m ary judgm ent. 9 b. J urisdiction and Venue The Court 2 m ay properly exercise subject-m atter jurisdiction on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). First, there is com plete diversity of citizenship between the parties: Vlahos, an individual, is a citizen of Virginia and Colum bia, a lim ited liability com pany with its sole m em ber being CEG, is a citizen of Delaware (where CEG is incorporated) and Ohio (where CEG has its principal place of business). See ECF No. 1 at 1, 3; ECF No. 23 at 3, 4; ECF No. 20 , at 1, 4. Second, the am ount-in-controversy exceeds $ 75,ooo.oo. See ECF No. 23 at 11 ("Colum bia seeks to avoid 'catastrophic' harm that would easily and obviously exceed $ 75,0 0 0 "); id. ("The $ 75,0 0 0 threshold also is m et because daily revenues from the Pipeline[] exceed[s] $ 13,50 0 ."); Tex. E. Transm ission Corp. v. Giannaris, 818 F. Supp. 755, 759 (M.D. Pa. 1993) (concluding that the plaintiff "dem onstrated by a preponderance of the evidence that the value of the natural gas pipeline right-of-way, the public interest in" preventing the physical and environm ental catastrophe that could result from an im properly m aintained pipeline, and the costs which the plaintiff would "incur if the pipelines were closed" exceed the jurisdictional am ount). The Court exercises general personal jurisdiction over Vlahos, a citizen of Virginia. Finally, venue is appropriate in this Court as the property that is subject of this suit is located in Henrico County, Virginia. c. Declaratory J udgm ent Colum bia requests declaratory relief, pursuant to 28 U.S.C. § 220 1, by asking this Court to construe the term s of the 1950 and 1951 ROWs an d find that the fence Vlahos m aintains on his property breaches these ROWs. That statute provides that "[i]n a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, m ay declare the rights and other legal relations of any interested whether or not further relief is or could be sought." party seeking such declaration, 28 U.S.C. § 220 1(a). "The Court has 2 The Court "has an independent obligation to determ ine whether subject-m atter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 546 U.S. 50 0 , 514 (2oo6) (internal citations om itted). 10 considerable discretion whether to grant declaratory relief, and should only do so in appropriate cases." Colum bia Gas Transm ission, LLC u. Ott, 984 F. Supp. 2d 50 8, 515 (E.D. Va. 20 13) (citing Centennial Life Ins. Co. u. Poston, 88 F.3d 255, 256 (4th Cir. 1996)). One such case is where "a plaintiff has an objective and reasonable apprehension of future litigation, which is of sufficient im m ediacy and reality, that a declaration of legal rights will term inate and afford relief from uncertainty, insecurity, and controversy giving rise to the proceeding." Id. (quoting Energy Recouery , Inc. u. Hauge, 133 F. Supp. 2d 814, 817 (E.D. Va. 20 0 0 ) (internal quotations om itted)). Accordingly, Colum bia has the burden of establishing by a preponderance of the evidence that an actual controversy exists. Id. "An actual controversy exists where the dispute between the parties is 'definite and concrete, touching the legal relations of parties having adverse legal interests,' such that the Court m ay m ake an 'im m ediate and definite determ ination of the legal rights of the parties in an adversary proceeding upon the facts alleged."' Id. (quoting Aetna Life Ins. Co. u. Haw orth, 30 0 U.S. 227, 241 (1937)). Here, an actual controversy exists as to the legal rights and obligations that Colum bia and Vlahos have under the 1950 and 1951 ROWs: Colum bia contends that the fence Vlahos m aintains on the property breaches these ROWs and m ust be rem oved, whereas Vlahos refuses rem oval prim arily on the ground that the fence does not substantially interfere with Colum bia's rights under the ROWs by increasing the risk of catastrophic harm s to persons, property, and natural gas service for the City of Richm ond. Thus, a definite and concrete dispute between Colum bia and Vlahos is evidenced and, as such, declaratory relief is appropriate here. d. Injunctive Relief Colum bia also requests injunctive relief by asking this Court to order Vlahos to rem ove the fence subject to these 1950 and 1951 ROWs. See ECF No.1 at 1 ¶¶ 35-39; ECF No. 23 at 17-19. As the Court confirm ed in Colum bia Gas Transm ission, LLC v. Ott, 984 F. Supp. 2d 50 8, 515 (E.D. Va. 20 13), "[i]n Virginia, injunctions are an extraordinary rem edy, and the decision whether to grant injunctive relief lies within the sound discretion of the Court, taking into account the nature and circum stances of the case." 984 F. Supp. 2d at 515 (citing Levisa Coal Co. v. Consolidation Coal 11 Co., 276 Va. 44, 53 (Va. 20 0 8)).3 In order to secure an injunction, the party requesting the injunction has the burden of proving that it will suffer irreparable harm and the lack of an adequate rem edy at law. See Shenandoah Acres, Inc. v. D.M. Connor, Inc., 256 Va. 337, 342 (1998) (citing Black & W hite Cars, Inc. v. Grom m e Transp., Inc., 247 Va. 426, 431-32 (1994)). Moreover, the party "seeking relief m ust show that the alleged harm is im m inent, and not m erely speculative or potential." Id. at 342 (citing Ridgw ell v. Brasco Bay Corp., 254Va. 458 , 462-63 (Va. 1997)). This m atter involves a refusal by Vlahos, despite Colum bia's dem and, to rem ove the fence that he continues to m aintain on the property, thereby im m inently threatening physical and irreparable dam age to the pipeline, to the public safety, and to the continuous supply of gas to the City of Richm ond if Colum bia cannot safely operate, inspect, and repair the pipeline, particularly in the event of an em ergency. Therefore, injunctive relief as to Vlahos' fence is appropriate. e. Sum m ary J udgm ent Virginia law governs this m atter. See Erie R.R. Co. v. Tom pkins, 30 4 U.S. 64, 78 (1938). "Where the easem ent or right of way has been granted by deed the rights of the parties m ust be ascertained from the words of the deed, and the extent of the easem ent cannot be determ ined from any other source." Gordon v. Hoy , 211 Va. 539, 541 (Va. 1971). Accordingly, the Virginia Suprem e Court has held that when the language of a deed is "clear, unam biguous, and explicit," a court construing it "should look no further than the four corners of the instrum ent under review." Langm an v. Alum ni Ass'n of the Univ. of Va., 247Va. 491, 498 (Va. 1994) (citation and internal quotation m arks om itted). Only when the language of a deed is am biguous m ay the court look to parol evidence or, specifically, "the language em ployed in the light of the circum stances surrounding the parties and the land at the tim e the deed was executed." Hoy , 211 Va. at 541 (citing The Court applies state law when deciding whether to issue a perm anent injunction in cases arising under diversity jurisdiction. See Patrick Henry Estates Hom eow ners Ass'n v. Miller, 462 F. App'x 339 (4th Cir. 20 12) (applying West Virginia law); Safew ay Inc. v. CESC Plaza Ltd. P'ship, 261 F.Supp.2d 439, 467-68 (E.D. Va. 20 0 3) (finding that the use of state law, specifically Virginia law, was proper in determ ining whether a perm anent injunction should issue). 3 12 Cushm an Va. Corp. v. Barnes, 20 4 Va. 245, 251 (Va. 1963); Stephen Putney Shoe Co. u. R.F. & P.R. Co., 116 Va. 211, 217 (Va. 1914)). Vlahos essentially presents two argum ents. First, Vlahos contends that m ore specificity by Colum bia is needed regarding the planning, m aterials, and am ount of tim e needed to rem ove the fence. He contends that Colum bia's pipeline engineer expert does not describe the im pacts felt by Colum bia from the presence of the fence in enough detail. Second, Vlahos contends that other fences exist along the pipeline and other pipelines in the area and because Colum bia "has not provided any specific details as to why particular fences in sim ilar proxim ity to the Pipeline are acceptable and others are not," the fence on Vlahos' property does not interfere with Colum bia's rights under the ROWs. ECF No. 24 at 4, 6. Put succinctly, Colum bia's m ain argum ents are that Vlahos ignores the part of the ROWs that explicitly subjugate Vlahos' right to Colum bia's ability to m aintain and operate its pipeline in a safe and effective m anner and fails to present any expert opinion with which to rebut the opinions of Colum bia's pipeline expert. No party could fairly claim that Vlahos' right to fully use and enjoy his property is not subjugated to Colum bia's ability to m aintain and operate its pipeline as plainly expressed in both the 1950 and 1951 ROWs. Both ROWs confirm that "Grantor m ay fully use and enjoy the prem ises, subject to the rights of the Grantee to m aintain and operate said line or lines." ECF 23 at 5, 19 (citing ECF Nos. 3-4) (em phasis added); see ECF No. at 5, 31. Here, via the 1950 and 1951 ROWs, both of which were recorded prior to Vlahos' acquisition of the property, the grant of an easem ent to Colum bia to m aintain and operate certain pipelines on Vlahos' property is not am biguous. To determ ine the scope of the ROWs, though, this Court m ust look to Virginia law for direction. "[U]nder Virginia law, use of an easem ent 'includes those uses which are incidental and necessary to the reasonable and proper enjoym ent of the easem ent, but is lim ited to those that burden the servient estate as little as possible."' Bernier v. Colum bia Gas Transm ission Corp., 20 0 5 WL 2621989, at *5 (W.D. Va. Oct. 12, 20 0 5) (quoting Scott v. Karm y , 52 Va. Cir. 118, 124 (Va. Cir. Ct. 20 0 0 )). The only evidence the Court has before it to determ ine the use that is "incidental 13 and necessary to the reasonable and proper enjoym ent of' Colum bia's right to m aintain and operate its pipeline is the Declaration of Andrew Kvasnicka ("Kvasnicka "). ECF No. 23, Ex. 3 ("Kvasnicka Decl."). Vlahos offered nothing in response to this evidence. Kvasnicka, as one of Colum bia's engineers, averred that the pipeline, which is am ong the prim ary sources for natural gas to the City of Richm ond, Virginia, m ust be safely m aintained and operated to sustain a continuous supply of gas to the area. Id. ¶ 9. A width of fifty feet, as granted under the 1950 and 1951 ROWs, is necessary to safely access the pipeline for m aintenance, visual inspection, replacem ent, and repair to com ply with the regulations of the Occupational Safety and Health Adm inistration and provisions of the Code of Federal Regulations. Id. ¶¶ 10 -21. According to Kvasnicka, encroachm ents, like the fence, on the property interfere with these objectives, id.15, thereby possibly causing "dam age to person or property and or a loss of supply of natural gas," id.¶ 19. Additionally, encroachm ents such as the fence in the case sub judice interfere with Colum bia's ability to prevent third-party dam age, which is a leading cause of pipeline incidents. In particular, Kvasnicka opined that the presence of the fence im pedes excavation purposes and access to the pipelines in the event of repair or replacem ent because Colum bia "needs the full width of the easem ent" to, specifically, dig a trench. Id. ¶ 19. These concerns becom e even m ore im portant since the "[p]otential [i]m pact [r]adius for a pipeline is the radius of a circle within which the potential failure of a pipeline could have significant im pact on people or property. " Id. ¶ 21. The ROWs provide that "Grantor m ay fully use and enjoy the prem ises, subject to the rights of the Grantee to m aintain and operate said line or lines." See ECF 23 at 14; ECF Nos. 3-4. Therefore, both ROWs plainly granted Colum bia the right to m aintain and operate certain pipelines on Vlahos' property; a right that clearly supersedes Vlahos' rights. In ascertaining the incidental and necessary use to which Colum bia m ay reasonably and properly enjoy the easem ent it was granted, the only evidence the Court has before it upon which to m ake such a determ ination is the Kvasnicka Declaration. This Declaration supports Colum bia's claim that the fence, which is 14 situated on Vlahos' property, encroaches upon the easem ent granted by the 1950 and 1951 ROWs and im pedes Colum bia's ability to m aintain and operate its pipelines. This evidence rem ains uncontradicted. For exam ple, although he did not, Vlahos could have subm itted a dueling declaration from an engineer or other expert, which m ight have placed in dispute whether an above-ground fence interferes with Colum bia's right under the ROWs. There is no doubt that he did not designate any expert witnesses in this case nor has he filed any expert reports and the deadline to have done so expired on J anuary 8, 20 15 pursuant to this Court's Scheduling Order. See ECF 18.4 Thus, the evidence rem ains undisputed an d this Court, in light of the Kvasnicka Declaration and Virginia law, finds that Vlahos continues to violate the 1950 and 1951 ROWs by m aintaining on the easem ent and his property the fence that im pairs Colum bia's right and ability to operate and attend to its pipelines. In challenging the Kvasnicka Declaration, Vlahos attaches to his brief a num ber of unsworn, unauthenticated docum ents, includingground-level photographs of various properties. Regarding this docum entary evidence, such "unsworn, unauthenticated docum ents cannot be considered on a m otion for sum m ary judgm ent. To be adm issible at the sum m ary judgm ent stage, docum ents m ust be authenticated by and attached to an affidavit that m eets the requirem ents of Rule 56(e)—that the docum ents be adm issible in evidence." Miskin v. Baxter Healthcare Corp., 10 7 F. Supp. 2d 669, 671 (D. Md. 1999) (citing Orsi, 999 F.2d. at 92). Therefore, these docum ents m ay not defeat Colum bia's properly supported Motion. Even if the Court m ay appropriately consider this evidence, it still fails to raise a genuin e issue of m aterial fact. The fact that Vlahos' "neighbors currently m aintain on their property a . . . fence does not directly contradict . . . [Kvasnicka's] opinion that the . . . [fence Vlahos] m aintains on his property interefere[s] with Colum bia's rights under the ROWs." Colum bia Gas, 984 F. Vlahos' opposition is filled with his purported expert opinions regarding whether the fence interferes with Colum bia granted rights to operate and m ain tain the pipeline in the easem ent. However, the operation and m aintenance of a high-pressure natural gas pipeline is beyond the scope of perm issible lay testim ony and expert testim ony is required. See Certain Underw riters at Lloy d's London v. Sinkovich, 232 F.3d 20 0 , 20 3 (4th Cir. 20 0 0 ); Adam son v. Colum bia Gas Transm ission LLC, 987 F. Supp. 2d at 70 6, affd 579 Fed. Appx. 175 (4th Cir. J uly 28, 20 14) ("The installation, m aintenance and operation of a natural gas pipeline is clearly beyond the ken of a lay witness."). 4 15 Supp. 2d at 522. Additionally, as Colum bia points out, Vlahos neglects to challenge Kvasnicka's qualification to render an opinion as to the safe m aintenance and operation of Colum bia's pipeline. See ECF No. 25 at 12 IV. Co n clu s io n For the aforem entioned reasons, the Court hereby GRANTS Colum bia's Motion for Sum m ary J udgm ent. ECF No. 22. Having found Vlahos in breach of the 1950 and 1951 right-ofway agreem ents, the Court DIRECTS Vlahos to rem ove the fence that is located on the property within thirty days of entry of the Final Order. Let the Clerk send a copy of this Mem orandum Opinion to all counsel of record. It is SO ORDERED. _________________/s/______________ James R. Spencer Senior U. S. District Judge ENTERED this _ 4th day of March 20 15. 16
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