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LLC v. New Cingular Wireless PCS, LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

March 27, 2017

K2 HOLDINGS, LLC, Plaintiff,
v.
NEW CINGULAR WIRELESS, PCS, LLC, and CROWN CASTLE PT, INC., Defendants.

          ORDER & OPINION

          KAREN K. CALDWELL, CHIEF JUDGE

         When a 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.

         I.

         On 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).

         Throughout 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).

         The 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).

         On 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 agreements.

         Defendant 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).

         But, as 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).

         Kevin 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.

         K2 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.

         On May 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 ...


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