UNITED STATES DISTRICT COURT WESTERN DISTRICT OF …lawofficesofcarolynelefant.com/fercfights/wp... · 60.88 acres of land, more ) c. michael hill or less, in vermilion ) parish,

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

SABINE PIPE LINE LLC, ) CIVIL ACTION NUMBER: ) 6:11-CV-2050 Plaintiff ) ) JUDGE: RICHARD T. HAIK, SR. v. ) ) MAGISTRATE JUDGE: 60.88 ACRES OF LAND, MORE ) C. MICHAEL HILL OR LESS, IN VERMILION ) PARISH, LOUISIANA; MARCIA ) JURY DEMAND ANNE EVANS A/K/A MARCIA ) EVANS PAGEAU, ET AL.; AND ) ALL UNKNOWN OWNERS, ) ) Defendants )

OPPOSITION TO SABINE PIPE LINE LLC=S MOTION TO CONFIRM ITS RIGHT TO

ACQUIRE THE UNDIVIDED INTERESTS OWNED BY NON-ANSWERING DEFENDANTS

Case 6:11-cv-02050-RTH-CMH Document 145 Filed 07/08/12 Page 1 of 18 PageID #: 1955

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ........................................................................................................3 BACKGROUND ............................................................................................................................6 ARGUMENT ..................................................................................................................................9

A. Sabine cannot confirm a default based on alleged failure to answer where Sabine gave opposing counsel no notice of its intent to do so. 9

B. This court must dismiss Sabine=s condemnation action against 32 of the “non-answering” Defendants under FRCP 4(m). 11

C. All of the Defendants Timely Filed a Consolidated Motion to Dismiss and Answer in Response to the Complaint. 12

D. The Court lacks jurisdiction to over Sabine’s condemnation claims under the Natural Gas Act and jurisdictional challenges can be raised any time. 13

E. Alternatively, the court should allow Defendants to amend their March 9, 2012 response to include the “non-answering” Defendants under FRCP 15 because “non-answering” Defendants are indispensable parties as joint owners of undivided property interests. 15

CONCLUSION ............................................................................................................................17 CERTIFICATE OF SERVICE ..................................................................................................18


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TABLE OF AUTHORITIES

PAGE

STATUTES

15 U.S.C. ' 717f 6, 7, 14

La. C.C. Art. 716 5, 15, 16

FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P. 4 4, 5, 8, 11, 12, 17

Fed. R. Civ. P. 11 10

Fed. R. Civ. P. 15 5, 6, 15, 16, 17, 18

Fed. R. Civ. P. 71 16

Fed. R. Civ. P. 71.1 4, 5, 7, 8, 10, 11, 12, 16

CASES

Bank of Ocala v. Pelican Homestead & Sav. Assn., 874 F.2d 274 (5th Cir. 1989). 10

Greater Baton Rouge Port Commission v. Morley, 93 So. 2d 912 (La. 1957). 5, 15, 16

Gonzales v. City of New York, 104 F.Supp.2d 193 (S.D.N.Y. 2000). 10

Northern Natural Gas Company v. Approximately 9117.53 Acres, 2011 WL 2118642 (D. Kan. 2011) 16

Russell v. Illinois Central Gulf Railroad, 686 So.2d 817 (La. 1997). 10

U.S. v. 45.43 Acres of Land Situate in Ada County, Idaho, 2009 WL 1605127 (D. Idaho 2009). 16

U. S. v. 729.773 Acres of Land, 531 F. Supp. 967 (D. Hawaii 1982). 16

Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage, 524 F.3d 1090 (9th Cir. 2008). 14, 15


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NOW INTO COURT, through undersigned counsel, come Defendants, Marcia Anne

Evans a/k/a Marcia Evans Pageau, et al. (“Defendants”), joint owners of the 60.88 acres of land

that is the subject of this proceeding, to file this Opposition to Sabine Pipe Line LLC=s Motion to

Confirm Its Right to Acquire the Undivided Interests Owned by Non-Answering Defendants.1

First and foremost, this Court must not countenance Sabine=s blatant efforts to ensure that

certain defendants would not file answers within twenty-one days of the alleged service.

Although Sabine was advised that all owners of the subject property were represented by

undersigned counsel, Sabine made no effort whatsoever to inform undersigned counsel that it

had allegedly served their clients, much less advise that it considered their answers untimely and

would be moving to confirm the condemnation. Such failure to inform known opposing counsel

of this basic information is considered sharp practice, and cannot form the basis for what is

essentially a default. Compounding Sabine=s failure to provide notice to counsel whom they

knew to represent landowners who intended to defend this suit, Sabine willfully hid the fact of

service by declining to file returns of service (many of which were allegedly effected months

ago) until the very day they moved to confirm their specious condemnation.2

Second, Sabine=s entire condemnation action must be dismissed (albeit without prejudice)

pursuant to FRCP 4 against 32 of the Anon-answering” Defendants who were served after April

11, 2012 -- more than 120 days after December 14, 2012, the date that Sabine=s amended notice

was filed. See FRCP 71.1(d)(3). Ironically, Sabine is seeking to deprive defendants of

presenting their defense on timeliness grounds, when they themselves have failed to adhere to

1 The List of Defendants is attached as “Exhibit 1.” 2 Nearly half of the defendants in question have advised undersigned counsel that they were not personally served. However, undersigned counsel has not been able to investigate deficiencies in service due to Sabine=s concealment of the alleged service.


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the deadlines prescribed for their lawsuit. FRCP 71.1(d)(3) requires service of notice in

conformance with FRCP 4 which requires a complaint to be served within 120 days.3

Third, even if the court were to decline to dismiss Sabine=s petition, Sabine is not entitled

to a default judgment on the condemnation issue against all of the “non-answering” Defendants

because they filed a timely motion to dismiss and answer objecting to Sabine=s unlawful

expropriation. See Motion to Dismiss and Answer, Document Number 11 (January 10, 2012).

In any event, Defendants= primary objection to Sabine=s expropriation --- that the Natural Gas

Act does not authorize Sabine to condemn property that it can already use under an existing lease

-- is jurisdictional in nature and may be raised at any time in the proceeding.

Fourth, under Louisiana law, Sabine cannot expropriate the “non-answering” Defendants=

undivided interests in jointly-owned property until the remaining Defendants consent either

voluntarily or judicially.4 Accordingly, the “non-answering” Defendants are indispensable

parties and the court should allow the Defendants leave to amend their answer under Rule 15 to

include the “non-answering” Defendants as parties. A motion for leave to amend with a copy of

the amended answer was filed on June 27, 2012. See Motion for Leave to File an Amended

3 These Defendants are: Joseph Henry Baudoin, Nanette Marie Baudoin a/k/a Nanette Marie Baudoin Butcher, Pamela Ellen Sisson, Stephen Broussard a/k/a Stephen Louis Broussard, James Eugene Broussard, Emile R. Thibodeaux, Earl B. Thibodeaux, Samuel Thibodeaux, Rodney J. Dugas, Timothy Morton, Christine Morton Ortego, Daniel Morton, Mark Morton, Arnold Morton, Joseph Morton, Laura Falgout a/k/a Laura Falgout Broussard, Mary Elizabeth Hinckley, Charles Allen Vincent, Donald James Vincent, Natial Perrin d’Augereau, Maxine Marie Lemaire, Jo Ann Delcambre, Martian Preston Delcambre, Melinda Delcambre Primeaux, Lisa Marie Delcambre, Adrienne M. Delcambre, Elaine B. Broussard, Christopher Jude Broussard, Michael Roy Landry, Dolores Ann Broussard Landry a/k/a Delores Ann Broussard, Sandra Lee Broussard Landry a/k/a Sandra Lee Broussard, and Nanette Marie Baudoin Butcher, Trustee of The Baudoin Children's Trust. Sabine=s Motion for Confirmation, Exhibit B. 4 See La. C.C. Art. 716; see also Greater Baton Rouge Port Commission v. Morley, 93 So. 2d 912 (1957) (suspending execution of lease for easement on jointly owned property co-owners with undivided interest did not consent)


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Answer Pursuant to Rule 15 of the Federal Rules of Civil Procedure, Document Number 133

(June 27, 2012).

I. BACKGROUND

This proceeding arises out of Sabine Pipeline LLC=s (Sabine) ongoing efforts to

unlawfully expropriate 60.88 acres of lands in Vermilion Parish in a blatant attempt to free its

parent company, Chevron from responsibility for millions of dollars in remediation in a pending

Louisiana state court lawsuit. Defendant landowners (the Broussard Heirs) are the heirs of

Aristide Broussard, a descendant of one of the original Acadian settlers in Southwest Louisiana

who obtained the property in question more than a century ago. In 1998, the Broussard Heirs,

filed suit alleging that their family land had been contaminated by the activities of its lessee,

Chevron (successor in interest to the original lessee, Texaco). The Broussard Heirs brought suit

against Chevron in the 15th Judicial District court in Vermilion seeking restitution for the severe

environmental damage to their property. This lawsuit, which has been pending for some fifteen

years, is scheduled for trial in October, 2012. Just last year, not coincidentally shortly after the

Broussard Heirs presented expert reports estimating the cost of environmental mediation to be in

the hundreds of millions of dollars, Sabine sent letters to some, but not all, of the property

owners advising that they intended to take their property through condemnation. Sabine has

claimed that the subject property is necessary for operation of its FERC-authorized interstate

natural gas pipeline, even though Sabine has been operating continuously on Defendants=

property for more than forty years under the terms of a lease that does not expire until September

18, 2018.

Notwithstanding contractual rights to access property necessary for its pipeline, on

November 23, 2011, Sabine filed the Complaint for Condemnation and the Notice of

Condemnation to expropriate Defendants= property under the Natural Gas Act, 16 U.S.C.


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'717f(h). On December 14, 2012, Sabine amended the Notice and initiated attempts to serve

each of the one hundred Defendants. On January 10, 2012, undersigned counsel timely filed

Defendants’ Consolidated FRCP 71.1 Motion to Dismiss, Objections and Defenses, Answer and

Motion to Stay Proceeding. Given the large number of Defendant landowners, Sabine=s

protracted and ongoing process-serving efforts,5 and the short, 21-day time frame in which to

file an answer, counsel was not able to list by name each defendant represented in the January

10, 2012, response and, therefore, filed the motion and answer on behalf of Defendants “properly

served@ to avoid waiver of defenses under Rule 71.1.

On January 27, 2012, the court conducted a teleconference to discuss various preliminary

matters. The court determined that Defendants= consolidated response was procedurally

appropriate and timely,6 but asked Defendants to file a new version of the consolidated response

listing by name the Defendants on whose behalf the response had been filed. On March 9, 2012,

Defendants filed an amended consolidated response listing 44 Defendants whom counsel knew

had been personally served as of that date as well as an additional 11 Defendants that had been

improperly served.

After filing the March 9, 2012, motion to dismiss, motion to stay, and answer, Sabine

continued to personally serve Defendants while doing its best to conceal knowledge of service

from Defendants= counsel. Sabine was aware that undersigned counsel represented the

Defendants, yet it did not inform counsel of its efforts to effect personal service. Moreover, even

5 As Sabine=s Exhibit B shows, service of process took place over a series of months between December 2011 and May 2012. 6 Because Rule 71.1 allows only one response to a Complaint for Condemnation, Defendants consolidated the Motion to Dismiss and to Stay Proceedings as well as the Answer into one pleading. While consistent with the requirements of Rule 71.1, the consolidated motions and answer did not conform to this court=s local rules under which motions must be filed separately.


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though Sabine served most of the so-called Anon-answering” Defendants (i.e., those who had not

yet been served by and therefore not named in the March 9, 2012, amended response) sometime

in April or May 2012, Sabine did not file any of the returns of service with the court until June 7,

2012, the very same day it moved to confirm the default, thus ensuring that counsel would not

learn of service on Defendants through the court=s CM/ECF system.

In any event, on April 11, 2012, the 120-day deadline for timely service of a complaint

under FRCP 4(m)(which governs FRCP 71.1 condemnation proceedings) expired. Sabine did

not seek an extension of time to complete service, as required by FRCP 4(m) but instead,

continued to serve Defendants through April and May 2012. On June 7, 2012, Sabine filed

affidavits of service along with Sabine Pipe Line LLC’s Motion to Confirm Its Right to Acquire

the Undivided Interests Owned by Non-Answering Defendants. Sabine argues that the 56

Defendants listed in Exhibit A to Sabine=s motion did not answer the Complaint for

Condemnation within 21 days as required by FRCP 71.1 and, consequently, are barred from

challenging the merits of Sabine=s condemnation action. Defendants= opposition follows.

Although its own deadline for serving Defendants had long since passed, on June 7,

2012, Sabine filed its Motion to Confirm Default, asserting that certain Defendants had waived

their opposition to the condemnation by not providing individual answers within twenty-one

days of alleged service. That same day, Sabine finally filed returns of service on these plaintiffs

into the record, in many cases months after the alleged dates of service. Prior to that date, Sabine

had not filed a single return of service on any of the individuals against whom it moved to

confirm the default. At no time prior to filing the Motion to Confirm Default did Sabine make

any effort to advise undersigned counsel of their assertion that answers were deficient, even

though undersigned counsel had advised Sabine that they represented all owners of the subject

property and that all owners intended to oppose the condemnation.


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II. ARGUMENT

A. Sabine cannot confirm a default based on alleged failure to answer where Sabine gave opposing counsel no notice of its intent to do so.

Any purported failure of certain defendants to answer was orchestrated by Sabine, who

willfully concealed both that it claimed to have effected service and its assertion that certain

defendants had failed to provide timely answers. Long before Sabine even filed its

condemnation action, Sabine was on notice that undersigned counsel represented all of the

owners of the subject property and those property owners intended contest any attempt to

condemn their property.

The property owners and Sabine agreed before the magistrate that Sabine would continue

to obtain service on the property owners, and that undersigned counsel would answer the suits as

filed, which agreement was confirmed by Order dated March 12, 2012. Undersigned counsel

advised that their original answer was intended to apply to any and all claims of Sabine against

any of the landowners to condemn the subject property. In spite of this unequivocal expression

of intent to defend this suit, Sabine moved for default without even giving undersigned counsel

the courtesy of a phone call to advise that it considered certain defendants to be in default.

The fact that Sabine waited to file its returns of service until the very day that it filed its

motion to confirm the condemnation demonstrates Sabine=s lack of good faith. Undersigned

counsel affirms that they have been monitoring the court filings to ensure that all served suits

were answered timely, and Sabine=s unscrupulous delay in filing returns deprived Defendants of

this safeguard.

Taking a default without first advising the Defendant of the intent to do so is sharp

practice, particularly where the party seeking the default was aware of the opposing party=s

intention to oppose the suit and had opportunity to provide notice of the intent to seek a default.


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Russell v. Illinois Central Gulf Railroad, 96-2649 (La.1/10/97), 686 So.2d 817 Gonzales v. City

of New York, 104 F.Supp.2d 193, 198 (S.D.N.Y. 2000). The provisions for obtaining judgment

by default are intended to ensure the just and speedy resolution of controversies, not to allow a

party to terminate the litigation by procedural gamesmanship. Sun Bank of Ocala v. Pelican

Homestead & Sav. Assn., 874 F.2d 274 (5th Circ. 1989). Sabine=s use of such scurrilous tactics to

ensure an untimely answer must not be countenanced. Sabine made every effort to virtually

guarantee that undersigned counsel could not answer within the brief deadline provided by FRCP

71.1 depriving Defendants not only of an opportunity to file an answer to an obviously contested

claim, but even hid the very fact of (alleged) service. To confirm Sabine=s default would only

reward sharp practice, while fulfilling none of the intended ends of the requirements of timely

answers.

Such sharp practice is not only unprofessional, but also sanctionable under Rule 11 of the

Federal Rules of Civil Procedure. Rule 11 provides that court filings must not be Apresented for

any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost

of litigation...@ FRCP 11. Concealing service and manipulating the record to obtain an unfair

advantage violates this provision. In spite of the availability of sanctions, Defendants advised

Sabine of their intention to seek sanctions (more than Sabine did for them), and offered them

three days safe harbor to withdraw the frivolous and unscrupulous motion.7 As of the date of

filing, Sabine has not neither responded nor withdrawn the motion.

7 See June 26, 2012 letter from Stephen B. Murray to Frederick D. Junkin attached as “Exhibit 2.”


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B. This court must dismiss Sabine=s condemnation action against 32 of the “non-answering” Defendants under FRCP 4(m).

It is not Defendants= answer that is untimely, but Sabine=s service. Sabine=s alleged

service of thirty-two of the defendants against whom it seeks to confirm default was untimely,

and must be dismissed without prejudice. Hence, no confirmation of default can possibly be

entered against these defendants. FRCP 71.1(d)(3), which applies to service of process governs

in condemnation actions, provides:

When a defendant whose address is known resides within the United States or a territory subject to the administrative or judicial jurisdiction of the United States, personal service of the notice (without a copy of the complaint) must be made in accordance with Rule 4. In turn, FRCP 4(m) establishes deadlines for service of process: If a defendant is not served within 120 days after the complaint is filed, the courtCon motion or on its own after notice to the plaintiffCmust dismiss the action without prejudice against that defendant or order that service be made within a specified time. FRCP 4(m) (emphasis added). On November 23, 2011, Sabine filed the Complaint for Condemnation and the Notice of

Condemnation. On December 14, 2011, without having initiated service on any of the

Defendants, Sabine amended the initial notice. Therefore, under FRCP 4(m), made applicable

via FRCP 71.1, Sabine was required to serve the Amended Notice by April 11, 2012.8 Yet, by

Sabine=s own accounting, it did not serve 32 of the “non-answering” Defendants until after April

12, 2012. See Sabine Motion to Confirm, Exhibit A. Nor did Sabine ask the court for leave to

extend the time frame for effecting service, an option available under FRCP 4(m) upon a

showing of good cause. Because Sabine did not serve 32 of the “non-answering” defendants

within the time allotted, the court must either dismiss the action without prejudice or order

Sabine to serve the Defendants within a specified time.

Here, dismissal of the complaint as to the 32 “non-answering” defendants is appropriate. 8 Because Sabine is not required to serve the Complaint under Rule 71.1, the date of the Amended Notice rather than the date of the complaint serves as the starting point for the 120-day period for effecting service.


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Even though counsel informed Sabine on multiple occasions its represents all of the co-owners

of the subject property, Sabine did not send or even copy counsel with the amended notice

purported to be served on the Defendants. Further, by holding back on filing the affidavits of

service with the court until June 7, 2012 when Sabine filed the Motion to Confirm, Sabine

ensured that counsel did not learn that Defendants had been served until the deadline for

responding had passed. Given Sabine=s past conduct, dismissal of the complaint against the 32

“non-answering” defendants is warranted.

C. All of the Defendants Timely Filed a Consolidated Motion to Dismiss and Answer in Response to the Complaint. With regard to the 24 remaining so-called Anon-answering@ defendants who were served

in accordance FRCP 4(m), Sabine is not entitled to a default judgment on the condemnation issue

because all of the “non-answering” Defendants timely responded to the Amended Notice. On

January 10, 2012, counsel filed a consolidated Motion to Dismiss and Answer on behalf of

Defendants Aproperly served.@ Because the 56 “non-answering” defendants are now properly

served, the defenses and objections to Sabine=s condemnation asserted in the January 10, 2012,

apply to them as well.

On January 27, 2012, the court held a teleconference on preliminary matters related to

Defendants= answer. The court determined that Defendants filed a timely response and that the

consolidated answer and motion was appropriate given that Rule 71.1 allows only one responsive

pleading. Subsequently, the court asked counsel to refile the consolidated answer to list those

Defendants served. On March 9, 2012, counsel complied, filing a response naming the

defendants that had been served as of that date. The court did not set a hearing date for

Defendants= motion to dismiss and motion to stay proceeding at that time, as it was understood


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that Sabine would continue with its efforts to effect service, and counsel would periodically

update the response to add any newly served Defendants. See Court Order (March 12, 2012).

Because Defendants= timely consolidated motion/answer filed in January 10, 2012, was

on behalf of all defendants “properly served,” none of the Defendants served to date are in

default. The March 9, 2012, amended answer does not replace the January 10 filing; rather, it

simply updates the answer to include the names of each of the defendants served as of that date.

However, Sabine now attempts to capitalize on the court=s administrative requirement (to

specifically name each Defendant property served) to cut off the rights of Defendants who timely

answered the complaint back in January and simply had not yet been specifically identified.

Defendants= January 2012 answer on behalf of Defendants Aproperly served@ was timely on

behalf of all defendants and demonstrated an unequivocal attempt by each Defendant to oppose

Sabine=s unlawful taking. Accordingly the “non-answering” Defendants are not in default and

Sabine=s Motion to Confirm the Condemnation must be denied.

D. The Court lacks jurisdiction to over Sabine’s condemnation claims under the Natural Gas Act and jurisdictional challenges can be raised any time.

Because questions of jurisdiction are so significant, they typically can be raised any time

in a proceeding either by the parties or sua sponte by the courts. Defendants= main objection to

the condemnation action is that Sabine lacks authority under the NGA to invoke the

condemnation procedure. Whether Sabine=s attempted condemnation falls within its certificate is

a question of jurisdiction and therefore cannot be waived.

The Natural Gas Act expressly states that a federal district court only has jurisdiction

over a condemnation action when the pipeline holds a certificate and is unable contractually or

by negotiation to acquire rights for operation:


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When any holder of a certificate of public convenience and necessity cannot acquire [necessary property interests] by contract it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts. 15 U.S.C. sec. 717 (emphasis added).

Sabine has already stated in its Complaint for Condemnation that it has contractual rights

under a lease effective through 2018. By its own admission, Sabine simply does not meet the

statutory requirements necessary to trigger jurisdiction in this court.

Sabine may cite to the Ninth Circuit=s decision in Williston Basin Interstate Pipeline Co.

v. An Exclusive Gas Storage, 524 F.3d 1090 (9th Cir. 2008), to support an assertion that the

objection to the scope of the certificate does not present a question of jurisdiction. Such reliance

would be misplaced. In Williston, the Ninth Circuit considered whether a property owner=s

argument that the pipeline impermissibly expanded the scope of its project beyond the limits of

the certificate was a jurisdiction issue or merely a "failure to state a claim.@ The Williston court

concluded, under the facts presented, that Williston=s assertion of jurisdiction was appropriate,

but went on to find that Williston had failed to state a claim. The Ninth Circuit found that

because the scope of Williston=s certificate was unclear, the lower court had jurisdiction to

review the certificate and exercise discretion in order to reach its conclusion that the certificate

did not authorize Williston=s expansions.9

Williston is readily distinguished from the instant case. In Williston, the lower court was

required to review various maps and details of the project to determine whether the proposed

additions were authorized under the certificate. For that reason, the Ninth Circuit found that the

question of jurisdiction was intertwined with the question of merits, and it could not be said that,

Athe claim is so immaterial, insubstantial, or frivolous on its face as to defeat federal

9 After consideration of complex issues of maps and areas subject to the certificate, the district court concluded that Williston had failed to state a claim and dismissed the action.


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jurisdiction.@ Id., 524 F.3d at 2008. Here, the claim is facially deficient: immaterial,

insubstantial, and frivolous on its face. Sabine has admitted that it has contractual access to the

property, which unquestionably fails to meet the threshold jurisdictional requirement of the

statute that the holder of a certificate of public convenience and necessity not have a contract.

Because the Defendants= primary objection to the condemnation action is jurisdictional in

nature, they cannot have waived this defense. Thus, even assuming that the alleged “non-

answering” Defendants failed to file a timely answer, their defenses related to this court=s

jurisdiction to entertain Sabine=s condemnation action must still be considered before this Court

can confirm any default.

E. Alternatively, the court should allow Defendants to amend their March 9, 2012 response to include the “non-answering” Defendants under FRCP 15 because “non-answering” Defendants are indispensable parties as joint owners of undivided property interests.

Under Louisiana law, Sabine cannot acquire use through expropriation of the “non-

answering” Defendants= undivided interests in jointly-owned property for operation of its

pipeline unless the other Defendants consent either voluntarily or judicially.10 Article 716 of the

Louisiana Code states that:

When a co-owner has consented to the establishment of a predial servitude on his undivided part only, the consent of the other co-owners is not required, but the exercise of the servitude is suspended until his divided part is determined at the termination of the state of indivision. LSA-C.C. art. 716.

Because consent of all owners of undivided interests (either voluntarily or judicially) is

required to establish a servitude on jointly owner property, 11 all joint owners are considered

10 See La. C.C. Art. 716; see also Greater Baton Rouge Port Commission v. Morley, 93 So. 2d 912 (1957) (suspending execution of lease for easement on jointly owned property co-owners with undivided interest did not consent) 11 Sabine seeks to acquire not just a servitude interest in the joint property for its pipeline


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indispensable parties in a condemnation proceeding. 12

Accordingly, the court should grant leave to those Defendants that timely answered the

Complaint to amend the Answer under FRCP 15 to join the “non-answering” defendants as

indispensable parties. FRCP 71.1(f) permits parties to amend pleadings. Although subsection (f)

refers primarily to amendments to the complaint, Advisory Committee=s note to Rule 71A(f)(the

identical predecessor rule to 71.1) expressly recognizes a defendant's ability to amend an answer

in accordance with Fed. R. Civ. P. 15, which in turn, allows an amendment with the opposing

party=s consent or by leave of court, “The court should freely give leave when justice so

requires.” 13 Further, under Rule 15, the amended answer relates back to the original answer date

since it asserts defenses on behalf of the “non-answering” Defendants that arise out of the same

action, i.e., Sabine=s condemnation action. Fed. R. Civ. P. 15 (c)(1)(B). Several federal district

courts have allowed Defendants in a condemnation action filed under Fed. R. Civ. P. 71.1 to

amend their answer under Fed. R. Civ. P. 15 B in one instance, more than eight months after the

initial answer was filed -- with the amendment relating back to the original answer. 14

but full fee ownership. 12 C.f. Greater Baton Rouge Port Commission, 3 So. 2d 912 at 914 (noting that co-owners with identical, undivided interests in jointly owned property are considered indispensable parties). 13 United States v. 729.773 Acres of Land, 531 F.Supp. 967, 970 (D. Hawaii 1982)(discussing intent of Advisory Committee to have Rule 15 apply under Rule 71). 14 United States v. 729.773 Acres of Land, 531 F. Supp at 970 (allowing landowner to amend its initial answer eight months later to assert defenses not raised in the initial answer, with date of new defenses relating back to date of original complaint); U.S. v. 43.5 Acres of Land in Idaho, Case No. CV 08-463 (US Court D. Idaho June 2000 (permitting defendants to reserve the right to amend their answer under Fed. R. Civ. P. 71.1 and 15); c.f. Northern Natural Gas Company v. Approximately 9117.53 Acres, 2011 WL 2118642 (allowing Defendants to amend answer to identify ownership interests in property and to clarify defenses).


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If the court declines to either dismiss Sabine=s complaint as improper, untimely served, or

lacking jurisdiction or to find that the Consolidated Answer covers the “non-answering”

Defendants, then the Court should grant Defendants leave under Fed. R. Civ. P. 15 to amend the

answer to include the “non-answering” Defendants as indispensable parties so that they may join

in all defenses and objections to Sabine=s actions timely raised in Defendants= consolidated

motion to dismiss and answer filed on January 10, 2012.

Further B and as will be discussed in more detail in a Motion to Amend, the Court may

freely grant leave to amend where justice so requires, as it does here. In the absence of an

amendment, Sabine will obtain a default judgment against the “non-answering” Defendants, and,

so Sabine will argue, it will become a co-owner with the Broussard Heirs and can frustrate their

efforts to obtain environmental remediation from its parent company. Additionally, Defendant

landowners who fully intended to maintain ownership of property held in their family for over a

hundred years will lose it through Sabine=s exploitation of a technicality. Moreover, Sabine will

not be prejudiced by an amendment because it must still litigate the substantive objections to the

condemnation action with respect to the Aanswering@ Defendants, and it has been on notice of the

defenses to be asserted by those property owners since the outset of this litigation.

III. CONCLUSION

WHEREFORE, for the foregoing reasons, Defendants respectfully request that this

court DENY Sabine Pipe Line LLC=s Motion to Confirm Its Right to Acquire the Undivided

Interests Owned by Non-Answering Defendants and (1) dismiss Sabine=s action against the so-

called “non-answering” Defendants as untimely filed within the 120 day period for service of the

complaint allotted by Fed. R. Civ. P. 4(m); or (2) find that the “non-answering” Defendants

timely objected to Sabine=s Condemnation Complaint and set a date for hearing on Defendants=

consolidated Motion to Dismiss and Motion to Stay Proceedings; or (3) find jurisdiction lacking


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on its face and dismiss all of Sabine=s claims; or (4) grant Defendants leave under Fed. R. Civ. P.

15 to amend the complaint to add the “non-answering” Defendants as indispensable parties.

Respectfully Submitted,

s/ Stuart H. Smith Stuart H. Smith (La. 17805) Michael G. Stag (La. 23314) John L. Fontenot (La. 26640) Sean S. Cassidy (La. 26842) Robert McMillin (La. 29341) SMITH STAG, L.L.C. 365 Canal Street, Suite 2850 New Orleans, Louisiana 70130 Telephone: (504) 593-9600 Facsimile: (504) 593-9601 s/ Jessica W. Hayes Stephen B. Murray (La. 9858) Stephen B. Murray, Jr. (La. 23877) Arthur M. Murray (La. 27694) Nicole Ieyoub-Murray (La. 28088) Jessica W. Hayes (La. 28927) MURRAY LAW FIRM 650 Poydras Sreet, Suite 2150 New Orleans, LA 70130 Telephone: (504) 525-8100 Facsimile: (504) 584-5242

ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE I, Jessica W. Hayes, do hereby certify that on July 8, 2012, that I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record who are authorized to receive electronic servicing and a copy of the foregoing has been served upon all counsel of record who are not authorized to receive electronic servicing by placing same, properly addressed and postage prepaid, in the USPS Regular Mail. s/ Jessica W. Hayes Jessica W. Hayes


LIST OF DEFENDANTS

1. Marcia Anne Evans2. Patricia Katherine Lincourt a/k/a Patricia Katherine Schenck Lincourt 3. Christopher Richard Schenck4. Flora Fay (Mimi) Baudoin5. Joseph Henry Baudoin6. Nanette Marie Baudoin a/k/a Nanette Marie Baudoin Butcher7. Brenda Menard Baudoin8. Nicole Ann Baudoin a/k/a Nicole Ann Baudoin Vidrine9. Monique Iska Baudoin a/k/a Monique Baudoin Dupre10. Brendan Joseph Corkran11. Thomas Ryan Corkran12. Paul A. Romano13. Pamela Ellen Sisson14. Carol Ann Ford15. Ora Nell Corkran16. Julie Ann Thibodeaux17. Ester Lynn Thibodeaux Thompson18. Glenda Fay Thibodeaux McCord19. Raymond Paul Thibodeaux20. Rita Ellen Thibodeaux Menard21. Young Broussard, L.L.C. c/o Diane B. Frederick, Agent22. Stephen Broussard a/k/a Stephen Louis Broussard23. James Eugene Broussard24. Emile R. Thibodeaux25. Earl B. Thibodeaux26. Marshall C. Thibodeaux27. Brenda Thibodeaux LaBauve28. Emilie Thibodeaux Stewart29. Clevie Thibodeaux30. Samuel Thibodeaux31. Eluse Dugas32. Rodney J. Dugas33. Elsie Faye Dugas34. Ruth Bellamy a/k/a Ruth Bellamy Broussard35. James Reuben Broussard36. Thomas Andrew Broussard37. John S. Broussard, Trustee of the John S. Broussard & Bonnie B. Broussard Revocable

Living Trust38. Bonnie B. Broussard, Trustee of the John S. Broussard & Bonnie B. Broussard Revocable

Living Trust39. David G. Broussard, Jr.40. Darlene B. Menard41. Ann Catherine B. Nerren

Case 6:11-cv-02050-RTH-CMH Document 145-1 Filed 07/08/12 Page 1 of 3 PageID #: 1973

42. Timothy Morton43. Christine Morton Ortego44. Daniel Morton45. Mark Morton46. Arnold Morton47. Anne Morton Melancon48. Joseph Morton49. Laura Falgout a/k/a Laura Falgout Broussard50. Suzanne Broussard51. Rebecca Broussard a/k/a Rebecca Broussard Abshire52. Ruth Ann Broussard a/k/a Ruth Ann Broussard Faulk53. Julian John Hinckley54. Samuel Pulaski Hinckley55. Mary Elizabeth Hinckley56. Charles Allen Vincent57. Douglas Joseph Vincent58. Donald James Vincent59. Jonas Perrin60. Randall John Perrin61. Melissa Claire Boudreaux62. Natial Perrin d’Augereau63. Warren A. Perrin64. Melanie Perrin65. Angela Perrin Comeaux66. Kathleen Perrin-Moore67. Jan Denise Broussard, Independent Executrix of the Estate of Edwin Broussard68. Deanna Lemaire69. Maxine Marie Lemaire70. Hazel Lemaire71. Cheryle Dale Anne Lemaire a/k/a Cheryle Dale Anne Lemaire McNew72. Dennis Broussard73. Charlene Delcambre Coreil74. Jo Ann Delcambre75. Martian Preston Delcambre76. Melinda Delcambre Primeaux77. Marshal Delcambre78. Lisa Marie Delcambre79. Adrienne M. Delcambre80. Olive Mae Broussard, Individually and as Independent Executrix of the Estate of Chester

Broussard81. Elaine B. Broussard82. Gregory Aristide Broussard83. Christopher Jude Broussard84. Claire Broussard Wakeham85. Elaine Joyce LeBlanc Landry


86. Marla Rose Landry Dubois87. Michael Roy Landry88. Iretha Corkran89. Sylvia Valero Corkran Bigler90. Dolores Ann Broussard Landry a/k/a Delores Ann Broussard91. Sandra Lee Broussard Landry a/k/a Sandra Lee Broussard92. Diane Lynn Broussard Frederick a/k/a Diane Lynn Broussard93. Nanette Marie Baudoin Butcher, Trustee of The Baudoin Children's Trust94. Preston James Broussard95. Janice Marie Broussard Hardman96. Jerry Wayne Broussard97. Paul Joseph Broussard98. John Wallace Broussard




UNITED STATES DISTRICT COURT WESTERN DISTRICT OF …lawofficesofcarolynelefant.com/fercfights/wp... · 60.88 acres of land, more ) c. michael hill or less, in vermilion ) parish,

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