after roughly three and a half decades that columbia gas had been storing natural gas below their homes they found out by getting a written notice in the mail stating sign on the dotted line here we'll send you two hundred fifty bucks like a half mile down well you know interesting you say that because as we sit here in california right now there's one hundred ten thousand gallons of our entire pounds of gas per hour leaking out of one of those very same underground storage facilities just outside of los angeles it's been leaking since october and they not been able to cap that in they don't know one well it might be a half mile down but it it's still very much a concern for these people that they live over top of it but nobody knows geologically whether it's safe  but and these things do occasionally bust and that's why the lawsuit got filed in the first place that in the natural gas act which those that eminent domain proceedings need to commence for the purpose of paying these people just compensation the natural gas act also says that in order which of course that hasn't happened in this case procedurally they just skip right past that pool also says my people are entitled to sue for trespass for all the years that they weren't notified of this now with regards to that the natural gas act says that there are putative class members they're not actually been certified but they're punitive class members in a previous in certainly the merits of the case don't affect that issue i mean we just have to decide whether the first time rule applies in that type of situation in it was actually filed in two thousand and twelve we do we passed the three year anniversary on that case right now my clients were not me sorry finish your answer yes in that case the add every single property owner in ohio affected ok well that doesn't sound like a class certainly doesn't sound like sort of occasions anywhere even possibly a remotely possible and on top of which columbia guess was no asserting several seventy one point one is vehemently arguing against class certification so what they did is they attempted and that's an important word attempted to add every landowner in ohio affected by these undisclosed under undergrown natural gas storage facilities and i say attempted because they did it as a counterclaim a stand alone kind of claim they didn't manage answer in a counterclaim and then they made a mistake again by doing it as a second amended kind of are almost i thought the concept of the district court in this case was that the district court in the other case could resolve those challenges that you're raising right the i mean so if that's true then you can raise them now and talk about them but the idea is that they'll be resolved in the litigation well that's sort of the idea underlying what the district court did in this case what the district court in that did in this case is they dismissed our case understand stuff i'm not saying you're right or wrong on that i'm saying i thought the my understanding of what the district court's thinking about those issues was wasn't that you were right or wrong but that they ought to be resolved first in the in the case that first raised all this stuff but procedurally what we've gotten here is a real right or wrong part personally right what the court also said wrong with that the court did say i recognize that they may not have a forum to seek redress in the at all and she actually said those words were like a challenge to the relief that they gave first to file rule should have been applied but perhaps instead of dismissing stated or transferred on some other relief would that satisfy you well the answer is perhaps maybe partially that how does that not is first of all why should my clients in the northern district of ohio have to go south this is the docket in that case already all right they haven't got here it's not per se they haven't gotten to anything substantive it places more than three years old what's happening is litigation for take economic fatigue and thousands of other parties who are now tied up in this morass of what is now  apply if the first file the first filing is sort of burdensome no the first to follow rule doesn't apply here because they weren't the first to file my client's filed suit to this date they have been added in that other case there is no possibility class has been required to be named so that's not what a class action is there's no commonality possibility it's real estate by definition it's inherently unique we have residential property we have commercial properties we have farmland  just to get the bottom line of my question i know judge i'm sorry actions it's basically that a requirement a requirement that the district court simply modify it ruling from dismissal totally to state or some other lesser relief that allow the possibility of your ultimately getting relief if you if the rulings go the wrong way in the other court the only way that that is insufficient to meet your concerns is that it's just a burdensome litigation down there writers or some other way around i believe that this coach be telling the northern district that the first to file rule does not apply in this particular case the reason i also believe that is it doesn't afford us the remedies available in the case we filed after all we've been brought in procedurally as a counter claim how to counter claim a counter claim we are being deprived of our opportunity to bring our affirmative claims and we certainly would have the right to by the way refuse to be part of the class which we would the problem we have is my clients can't get relief right now if i'm in the southern district in the you know  situated a land owner in ohio that also wasn't received didn't receive knows but there are down in the southern district my clients don't and should have the opportunity to have their case heard where they file it should have the opportunity to argue it in the in their own district the northern district that first of all doesn't apply here these people are sorting it are not the ones who have the right to assert it it could be the plaintiffs in the wilson case but not the defendants and that's what i'm asking this court to do i'm sor said case i'm sorry say again what has happened if anything the other case the only substantive ruling that has occurred to date in their seven hundred eighty one filing so far as of yesterday is that the trial court there denied a motion to dismiss by columbia on state tort grounds for trespass for all the years that they did not comply with the natural gas act that's the only substantive ruling that's been made there are people still entering counterclaims as we said here and by the way service hasn't even happened is they had a courier drop it off on our front porch and then signed an affidavit saying they personally served us my people came home from work and found something there picks up on the front walk and that's how we were served in this case there's so many procedural rules that have been just look test i mean several thirteen itself even tells them where to go if you look at several thirteen ages go to several one thousand and twenty that that's how you add parties because it allows us the opportunity to countersue they didn't do that litigation within the natural gas act itself which requires appraisals and so forth none of that's happened nothing has happened it's more than three years old now i have a simple folks from medina county who are just looking for an avenue of redress a unassuming people not simple intelligence wise by any stretch but but just normal everyday hardworking people who who are very concerned about this gas being below their house and they have to disclose it on the residential property disclosure forms when they try to sell we've had more than one bank tell them they won't refinance when the reason these houses because of this it pulls up on the title search is now that's a problem it has affected a substantive right of these people in and  if we follow the procedures i mean we have procedural rules we have statutes for reasons they're supposed before and you know so far columbia hasn't followed them the trial court i don't believe has followed him my clients have followed them and you what the what additional weight there is to your argument that it's that it's affecting their ability to sell their house ok a couple things number one the lean would be there but if they were compensated that's fine when they sell their house for less than they could otherwise but they've been compensated with regards to but they can't get to the compensation that's true any litigant if they get their compensation they'll have more money than if they don't get their compensation but they aren't have an effect on the lean as i don't see how it could be any different but they haven't had the opportunity to actually go get their compensation because we're stuck we have we've been we don't have a mask and a limited very limited question of what the relevance is about the lean i just don't see well it's liens going to be affected just as much whether they get their compensation or not so if so we're back to whether they get the compensation which is literally that is the issue we just want to get the compensation but we need an opportunity to do it i am a thirty second so will i will wrap up for this round in to say i believe this court should reverse the trial court should remanded for trial tell the court that the first file rule does not apply in this circumstance and if it does my clients were in fact the first to file thank you morning your honour's may please the court i'm paul stockman for mcguire woods on behalf of apple the columbia gas transmission joining me at counsel table is my partner jody lawson your honour's really this is a straightforward application of the first to file rule and judge wells ruling dismissing a duplicative following lawsuit was well within the ample bounds of her discretion  of the wilson class and they're there as last and certified well but there is an abundance of case law that we cite in our brief for the proposition that that the first to file rule doesn't depend on a certified class that  court in a second filed action may provide that the second filed action gives way in favor of a class action that would encompass the same claims made doesn't mean that it has to win a may but but again this is an abuse of discretion standard and so the judge is evaluating the abuse of discretion we should take into account things like whether it's likely to be sort of no your honor i think that that like a pretty relevant factor that if successful would have compass the claims and under those circumstances mace in a may may consider it but you would think that looking at it and seeing that the classes unlikely to be certified that there's this hurdle and that hurdle might exercise discretion not to do that right i mean if judge wells had done that and if we were coming in on appeal complaining about the fact the judge wells did not dismiss the case or did not stay the case i mean i think we would have a very tough row to hoe because one of the lesser ways in which judge wells could wait and see what's happening down there and i understand where you're coming from your honor but as a practical matter the effect is the same  wouldn't object to remain and modify them to stay i mean as long as it would be like a state or transfer or something that would preserve their ability to sue in the northern district of some of the arguments that are made in the southern district preclude them from getting identical relief and i think it's just that i would not check to that or you would object i think it's a step t it's an extra case on the docket i mean because judge graham could dismiss them or if the class is certified they could opt out or if the class is not certified the statute you know any statutes of limitations are told so  members until the court has ruled on class certification i don't have a case citation for you but i think that's reasonably well established i think the one thing that's important to point out here is an appropriate venue of their choosing you know once judge graham has resolved the issues and in fact i but i would submit to the court that the equities favor colombia in this circumstance one of the core you can't i mean if you've got smith versus jones jones can't counter game against richards but could but jones can counter claim against smith and join richards under rule thirteen age they have to join them serving with process and that's that's what happened here the plaintiffs and appellants here were joined to the wilson case through the amended counterclaim and condemnation in them as a pla named they were served they have appeared through mr lynn or they filed a motion to dismiss i can't recall as i stand here whether or not you know some of the arguments that mr linda has made about service a process were raised in the motion to dismiss obviously if they weren't those have been waived because they have not been presented in the first operative response i have no objection just so we're clear on my earlier question you really yes a party you don't have an objection to re man to make it to to change the relief to a state or a transfer one of the other obvious just don't think we need to do it obviously i would be the court wouldn't like us if we did that obviously though i have any objection to that obviously i would and but i think the real reason that that you've got your client doesn't have any interest in getting the so the reason the my client is in a has has paid for me to come here and stand before you is because they want district where the property is located that's with statutes then you wouldn't have to be standing here they wouldn't have to pay you money we wouldn't have to be sitting well i mean your honor a bit what's interesting about the statute is that it does not it is never as far as we can tell has never been construed by any court and particularly in a situation as with columbia's counterclaims in the wilson case where there are properties located in multi and i think the answer is because this because this was a fight that was brought to columbia first with the wilson lawsuit and then in the course of of implementing the condemnation counterclaims and wilson  well it's it was our way of complying with the statute by still seeking eminent domain and the reason that we're here today is that all that the statute requires columbia prior to condemning to to seek to reach agreement  you know and it's not a legal question so much as a why did she do this kind of question you could have brought a condemnation claim in the district that the statute mentions well good of you just say that you could have done in this situation having been sued in the other situation yes i mean it principles of ancillary venue i mean i think you know we you know it's a fascinating issue because it's one that's had so little judicial scrutiny i mean a mr  talks about the general federal venue statute it does say that you bring a condemnation in the district where the property is located or if the property is located in more than one district either of those districts  this is this is not you know unprecedented that a counterclaim involving real property would be a brought in a in a venue other than that where the properties located the owner and domain  prior to pumping gas and anybody property of your clients seek to enter into some agreement well our client obtained firk certificates for all fourteen of it's ohio storage  fields in most cases the properties that that that overlay the fields were already subject to oil and gas leases storage leases storage easements but for a variety of reasons there  are in excess of one hundred thousand acres of land in ohio that overlay storage fields but and ninety eight percent of that land is subject to a lease or an easement to permit storage but for a variety of of historical reasons there's the remaining two percent where you know leases had expired or a land owners could not be located and that really that that two percent of the of the storage field area is what the wilson class action was intended to address the wilson class action and compass is about four to six thousand acres of land the appellant's here own five of those acres more or less why is that although brought us a class action it's pretty good it's not going to proceed as a class action well be the court has not ruled on class certification one way or another  mean and you know the the it's simply not brought out as a class action in the first place with the first to file rules still apply for you in your favor because then the and then they would have been punitive class members in the suit then arguably should've brought been brought in the northern that that's a much that's a much closer case however and in that case there would be a an alternative ground for a firm and it's because as as i pointed out your honor we reached out to these people to try and negotiate and they brought a lawsuit in response without waiting for as to initiate condemnation under those circumstances even if the case that's in front of the court were considered a second filed case it would have been appropriate to or or had been considered a first filed case it would have been appropriate to to dispose of it under an exception to the first to file rule for anticipatory lawsuits  if your honour's have no further questions i think we would be content to to rest on our briefs and and on the record below and we would ask the court to affirm the judgment of the district court a judgment that was  well within the bounds of judge wells discretion thank you your hon with that much of that sentence it is not columbia gets the brought this has been arguing for classification they've been arguing against it wilson brings as a class and has gotten every indication they're not going to get it my clients are getting negatively impacted by that were complicated cases of the parties are those are the negative things well there's a yes for example under ohio's eminent domain procedure my clients are entitled to jury view it's going to drag a jury up to medina ohio from down in cincinnati or columbus whichever courthouse it's in you know when there's procedural ever news that my clients are entitled to under ohio statute about being harmed because the jurors will be farther away well i'm talking as well i'm also talking about being harmed by the fact that my client every one of these cases are different there's not going to be any inconsistent result that would affect another case each one is not really factually precedential for one another they're all unique in so as a result my clients are being harmed by they right now they don't have a court that will hear their case that they're tied up in a three plus here case i mean these are away right and and i guess the associated fact that it's going to take you longer to get the money that you want out of the case i mean is that ok residential homeowners i'm just trying to see if there's any other harm in addition to understand those harms no i mean and that's fair the i'm sorry i'm blanking out at this moment i apologize but but ultimately it is the court said they are not hearing or for trial on the merits thank you you have raised a couple of times so you need land and that's why you should have a separate form and i correct yes what is are you talking the uniqueness in terms of damages or something else both something else but first of all each one of these homes are very different from one another lot sizes are very different from one another and that  ok and the something else is that some of these people desire to stay there until their dying day some of these people would like to leave some of these people would like to just simply refinance there's a lot of different damages  as well in the context of a class and it's trying to make one size formula fit all and you can't have that in this context when it when all we're really arguing about in the class is monetary damages that's the only thing at issue anyhow nobody's saying you don't have a right to do this under the federal statute we say it had no right to do it until you notified us and followed procedure under the federal statute but once you did that you do the biggest does have a right to do it so you're right we're only arguing about money damages but every one formula doesn't fit all  in so now we're six or seven years down the road and my people who filed suit in two thousand and fourteen now get to proceed forward on something they should have been able to do from the onset and that's why that's the unique sort of harm to itself the my clients why should they have to wait on this they've waited for years why shouldn't they be able to go get the redress there's no risk to the courts of inconsistent result all we're talking about is a dirty verdict on facts and damages that's it in any of these cases there's no legal issues involved in the substantive case it is factual so under that theory is stay would do you no good right that would still delay your day in court which is thus far the only thing i've heard that shows any kind of prejudice to be had well and you're right if they would do is no good and that's why i'm asking for the court to say first if i would not apply in this circumstance because of the fact that this is not a real class matter my clients were the first to file and you know the equities of everything would also be in the right i took the strongest crn derive from your filings is that you might be precluded from ever recovering because you know that's true with a dismissal that's true the state would protect that that's true but according to your brother comes of the statute or of limitations doesn't arise in this situation so we've already got a lawsuit filed and i just i just don't know when my clients when people out in the opportunity to simply get what they're going to ultimately have a thank you counsel case will be submitted please call the next case