United States District Court, E.D. Kentucky, Central Division, Lexington
ORDER & OPINION
K. CALDWELL, CHIEF JUDGE
plaintiff moves to remand a case-one originally brought in
state court but removed to federal court-for lack of subject
matter jurisdiction, it is the defendant's burden to keep
the case in federal court. Gafford v. Gen. Elec.
Co., 997 F.2d 150, 155 (6th Cir. 1993), abrogated on
other grounds by Hertz Corp. v. Friend, 130 S.Ct. 1181
(2010). Because Defendants New Cingular Wireless PCS, LLC and
Crown Castle PT, Inc. have failed to prove by a preponderance
of the evidence that the amount in controversy in this case
exceeds $75, 000, they have not satisfied that burden. The
Court will therefore GRANT K2 Holdings,
LLC's motion (DE 10) to remand.
September 9, 2010, K2 Holdings purchased real property now
known as 2600 and 2602 Gribbin Drive (“Property”)
in Lexington, Kentucky at a Master Commissioner's sale.
(Compl. ¶ 6). Fourteen years before, the original owners
(“Grantors”) of the Property-Town and Country
Rentals, Inc., Moneywatch Richmond Road Investors, Inc., J.
Jeffrey Scates, and Theresa Scates-entered into a Memorandum
of Option and Lease Agreement with BellSouth Mobility, Inc.
(Compl. ¶ 7), leasing a 1, 600 square foot portion of
the Property (“Tower Site”) together with a Right
of Way-a non-exclusive, twenty-foot access and utility
easement. Collectively this is known as 2602 Gribbin Drive,
Lexington, Kentucky (collectively, “Leased
Property”). (Compl. ¶ 7-8).
the years, this 1996 Lease Agreement was added to and
amended, and it exchanged hands through various successors in
interest. On June 2, 1999, BellSouth entered into a Site
Designation Supplement and Memorandum of Sublease with Crown
Castle South, Inc. to sublease the Leased Property. (Compl.
¶ 9). Months later, on May 9, 2000, the Grantors entered
into a Declaration of Easement and an Addendum of Declaration
of Easement with Crown Communications, granting Crown
Communications a perpetual right to exclusively use the
Leased Property, subject to BellSouth's rights under the
1996 Agreement. (Compl. ¶ 10). That 2000 Easement
described the Right of Way as allowing
for ingress and egress, seven (7) days per weeks, 24 hours
per day, on foot or vehicle, including trucks, and for the
installation and maintenance of utilities, wires, poles,
cables, conduits and pipers over, under or along a 20 feet
wide Right of Way across the Property extending from the
nearest public right of way to the [Leased Property].
(Compl. ¶ 13, Ex. 3 and 4).
next year, Crown Communications, Inc. entered into an
Assignment of Perpetual Easement with Cingular Real Estate
Holdings of Georgia, LLC, which assigned all of Crown
Communications, Inc.'s rights under the May 2000 Easement
to Cingular of Georgia. (Compl. ¶ 16, Ex. 6). In June
2001, BellSouth Mobility, a successor in interest to
BellSouth, and Cingular of Georgia entered into an Amended
and Restated Site Designation Supplement and Memorandum of
Lease with Crown Castle South, Inc., a subsidiary of Crown
Communications, Inc., making Cingular of Georgia a party to
the Crown Castle Sublease. (Compl. ¶ 18, Ex. 7).
March 19, 2004, the Grantors, now comprised of only Town and
Country Rentals, Inc. and Moneywatch Richmond Road Investors,
Inc., (Compl ¶ 20), conveyed the Property to Nuti
Builders, Inc. (Compl. ¶ 21), who entered into an
Amendment to Declaration of Easement, Addendum of Declaration
of Easement, and Memorandum of Easement with Cingular Real
Estate Holdings of the Southeast, LLC (a successor by merger
with Cingular of Georgia) in 2006. (Compl. ¶ 22). Nuti
Builders and Cingular Southeast agreed to amend the May 2000
Easement to relocate the right of way included in the
easement so that it “basically follows the driveway of
the building back to the Tower Site.” (Compl. ¶
23). K2 Holdings bought the Property subject to these
New Cingular is a successor, by merger to BellSouth and to
Cingular Southeast, to the Leased Property (Compl. ¶ 23)
and is subject to the various agreements made by its
predecessors in interest, including a perpetual easement for
the exclusive use of a 40' x 40' area and a
non-exclusive use of the Right of Way for access. New
Cingular and Crown Castle PT, “or their predecessors in
interest, ” erected a cellular phone tower on the
Property, purportedly on the Tower Site. (Compl. ¶ 32).
The 2006 Amendment to Easement showed the Tower Site to be
located “about four-fifths down” the lot from
Gribbin Drive. (Compl. ¶ 36).
is true with all things related to real property, location is
everything. On October 31, 2014, Anthony Mandak, a real
estate specialist for Crown Castle PT, sent K2 Holdings an
email claiming that the 2006 Agreement, which relocated the
Right of Way in the easement, “included an incorrect
legal description'” for the cell phone tower
located on the Property. (Compl. ¶ 38). This incorrect
location, according to Mandak, showed “[the
defendant's] lease area being in the middle of the road
leading to your parking lot in the back of your
building.” (Compl. ¶ 40). Mandak sent K2 Holdings
a letter reiterating that the “previous legal
description and survey defined our easement area incorrectly
at the site.” (Compl. ¶ 41). Mandak attached to
the letter a proposed Second Amendment to Declaration of
Easement, Addendum to Declaration of Easement, and Memorandum
of Interest which sought to relocate the easement area. The
same letter also included a November 5, 2014 survey of the
Property, which according to K2 Holdings, showed that the
cell phone tower was actually located “at the end of
the lot from Gribbin Drive.” (Compl. ¶ 43).
Balcirak, the sole member of K2 Holdings, responded with a
letter of his own, asserting that Crown Castle PT or its
predecessors in interest “had actually constructed the
cell phone tower in an incorrect location on the
Property” (Compl. ¶ 45) behind the defined
easement area and outside the permitted area.
Holdings filed suit in Fayette County Circuit Court to
resolve this property dispute. K2 Holdings alleges five
causes of action: (1) a declaration of rights pursuant to KRS
418.040 regarding the alleged trespass; (2) a breach of the
2001 memorandum of easement; (3) a breach of the 2006
memorandum of easement; (4) unjust enrichment; and (5)
harassment. K2 Holdings seeks injunctive relief, a
declaration of rights, as well as monetary damages.
3, 2016, New Cingular and Crown Castle PT removed this action
pursuant to 28 U.S.C. §§ 1441, 1446, stating that
this Court has jurisdiction under 28 U.S.C. § 1332
because the citizenship of the parties is diverse and the
amount in controversy is satisfied by combining ...