     Case: 09-60569     Document: 00511023206          Page: 1    Date Filed: 02/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 9, 2010

                                     No. 09-60569                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ROBERT CHARLES ERVIN,

                                                   Plaintiff - Appellant
v.

SPRINT COMMUNICATIONS COMPANY LP,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:09-CV-47


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellant Robert Charles Ervin appeals the district court’s grant of
summary judgment to Appellee Sprint Communications Co., L.P. (“Sprint”) on
all claims and the denial of his motion to remand. Mr. Ervin sued Sprint under
Mississippi law for trespass, unjust enrichment, and slander to title based on
Sprint’s installation of underground fiber optic cable on property that Mr. Ervin
asserted that he owns. Mr. Ervin further sought an injunction requiring Sprint


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                   No. 09-60569

to remove the cable from his land and a declaratory judgment that Sprint had
no right to install and has no right to operate the telecommunications cable.
        We conclude that Mr. Ervin’s purported claims met the amount in
controversy requirement so as to create diversity jurisdiction, and we therefore
AFFIRM the district court’s denial of his motion to remand.
        Under this Circuit’s precedent, Mr. Ervin’s failure to respond to the
summary judgment motion effectively waives his opportunity to offer evidence
or legal argument in opposition to summary judgment. Further, we conclude
that Sprint offered uncontroverted summary judgment evidence under which
Mr. Ervin cannot prevail. We thus AFFIRM the district court’s judgment as
well.
                                     I. Facts
        In 1853, James Sturgis deeded land from a certain parcel of property to
the New Orleans, Jackson and Great Northern Rail Road Company (“Great
Northern”) for construction of a rail corridor. The state of Mississippi had
statutorily chartered Great Northern the previous year. Mr. Sturgis’s deed (the
“Deed”), which is in large part the subject of this dispute, provided that Sturgis
        donates, grants, alienates, and conveys, and by these presents do[es]
        donate, grant, alien and convey unto the said New Orleans, Jackson
        and Great Northern Rail Road Company such part and portion of
        the aforesaid tract of land as may be necessary under the provisions
        of the Charter of said Company to build and construct said Road,
        together with all such timber, stone, earth, gravel and other
        materials which may be found on said tract of land necessary and
        proper to be used in the construction of said Road.
Great Northern subsequently constructed a railroad through the land passed by
this Deed (the “Railroad Grant Land”). In 1987, Sprint’s predecessor, U.S.
Telecom, Inc., installed underground fiber optic cable on the Railroad Grant
Land pursuant to a 1986 easement granted by Illinois Central Gulf Railroad




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Company, Great Northern’s successor.1 At that time, Velma Ervin owned the
residual property not conveyed by the Deed (the “Ervin Property”). In 1992,
Velma Ervin conveyed the Ervin Property by quitclaim deed to Robert Carlos
Ervin. When Robert Carlos Ervin died, Plaintiff-Appellant Robert Charles Ervin
obtained title to the Ervin Property through a Judgment Closing Estate recorded
in 1995.
        Mr. Ervin filed this lawsuit against Sprint and several other defendants
in Mississippi state court on December 15, 2008. The defendants removed to the
United States District Court for the Southern District of Mississippi on January
23, 2009. Mr. Ervin and all defendants other than Sprint shortly afterward
stipulated to a dismissal of all claims. Mr. Ervin filed a motion to remand on
March 10, 2009, arguing that the amount in controversy was less than $75,000.
The district court denied the motion, and Sprint immediately filed for summary
judgment. Mr. Ervin failed to respond to the motion for summary judgment. On
May 18, 2009, the district court granted summary judgment in favor of Sprint,
ruling that Mr. Ervin lacked standing to pursue his claims because the summary
judgment evidence showed that Sprint owned the Railroad Grant Land in fee
simple.
        Mr. Ervin now appeals both the denial of his motion to remand and the
dismissal with prejudice of his claims.
                                       II. Analysis
A.      Denial of the Motion to Remand
        We first reject Mr. Ervin’s argument that this court and the district court
lack jurisdiction because Sprint has not shown that the amount in controversy
here exceeded $75,000 as required by 28 U.S.C. § 1332(a).2 We review the denial

        1
        Illinois Central Gulf Railroad Company was subsequently renamed Illinois Central
Railroad Company.
        2
            The parties are diverse.

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of a motion to remand de novo, “look[ing] only to the face of the complaint and
ask[ing] whether the amount in controversy exceeds” the jurisdictional
threshold. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996).
“[O]nce a defendant is able to show that the amount in controversy exceeds the
jurisdictional amount, removal is proper, provided plaintiff has not shown that
it is legally certain that his recovery will not exceed the amount stated in the
state complaint.” De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
Mr. Ervin’s original complaint in Mississippi court claimed that Sprint had
“recei[ved] . . . and ret[ained] . . . millions of dollars in the form of rents, profits,
and other benefits properly payable to Plaintiff” and sought their disgorgement
as unjust enrichment. In a case in which the plaintiff seeks equitable monetary
relief, such as disgorgement or restitution, “‘it is well established that the
amount in controversy is measured by the value of the object of the litigation’”—
that is, the amount of equitable monetary relief sought. See Garcia v. Koch Oil
Co. of Tex., Inc., 351 F.3d 636, 640 (5th Cir. 2003) (quoting Hunt v. Wash. State
Apple Adver. Comm’n, 432 U.S. 333, 347 (1977)). There is nothing in the record
to suggest that the disgorgement claims were made in bad faith, nor has the
plaintiff offered any meaningful evidence or legal argument that those claims
are for less than $75,000.3 We thus decline to find that “it . . . appear[s] to a
legal certainty that the claim is really for less than the jurisdictional amount.”
Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439, 455 n.6
(5th Cir. 2008). We therefore affirm the district court’s denial of the motion to
remand.
B.      Grant of the Motion for Summary Judgment
        Mr. Ervin’s arguments on appeal seeking reversal of the district court’s
grant of summary judgment are waived because he failed to oppose Sprint’s

        3
         The record discloses that Mr. Ervin sought a settlement of $1,000,000, suggesting
that he did in fact seek recovery of these amounts.

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motion in the district court. We have explained that “[i]t is well settled in this
Circuit that the scope of appellate review on a summary judgment order is
limited to matters presented to the district court.” Keelan v. Majesco Software,
Inc., 407 F.3d 332, 339 (5th Cir. 2005). “If a party fails to assert a legal reason
why summary judgment should not be granted, that ground is waived and
cannot be considered or raised on appeal.” Vaughner v. Pulito, 804 F.2d 873, 877
n.2 (5th Cir. 1986). Here, Mr. Ervin raised no arguments in opposition to
summary judgment in the district court,4 and we thus do not consider the legal
arguments he advances for the first time on appeal.
       Nevertheless, in our de novo review, we, like the district court, are obliged
to assess whether “[t]he movant has [met] the burden of establishing the absence
of a genuine issue of material fact . . . regardless of whether any response was
filed.” Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995)
(quotation marks and citation omitted). We agree with the district court that
Sprint’s summary judgment evidence established that Sprint owns the Railroad
Grant Land in fee simple under Mississippi law.5 Mr. Ervin’s arguments to the


       4
         Mr. Ervin did raise some of the arguments he makes on appeal after entry of
judgment in what the district court interpreted as a motion under Federal Rule of Civil
Procedure 59(e) and denied. However, such “[m]otions for a new trial or to alter or amend a
judgment must clearly establish either a manifest error of law or fact or must present newly
discovered evidence. These motions cannot be used to raise arguments which could, and
should, have been made before the judgment issued.” Simon v. United States, 891 F.2d 1154,
1159 (5th Cir. 1990) (quotation marks and citation omitted). A legal argument not raised in
opposition to summary judgment but improperly raised for the first time in a Rule 59(e)
motion is still waived because such an argument was never properly before the district court.
See id. For the same reason, we affirm the district court’s denial of the Rule 59(e) motion
under the deferential abuse of discretion standard. See Marseilles Homeowners Condo. Ass’n
v. Fid. Nat’l Ins. Co., 542 F.3d 1053, 1058 (5th Cir. 2008) (holding that “[t]he district court did
not abuse its considerable discretion in denying [the appellant] the opportunity to raise [a]
claim after judgment” that should have been argued before judgment was entered).
       5
         As our recent decision in Franks Investment Co. LLC v. Union Pacific Railroad Co.,
___ F.3d ___, No. 08-30236, 2010 WL 22337 (5th Cir. Jan. 6, 2010) (en banc), confirms, a
diversity action sounding in state property law is permissible here and not preempted by the
Interstate Commerce Commission Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803.

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contrary are unavailing in light of controlling Mississippi Supreme Court
precedent.
       Mr. Ervin cannot prevail on his claims because he does not own the land
in dispute.    The Deed granted Great Northern an unspecified section of a
particular parcel of land without specifying the precise interest in the land
transferred. Applying Mississippi law, we read the Deed to convey, as a matter
of law, fee title to the railroad in the land where the rail line was installed.
       First, as to what land was conveyed, the Mississippi Supreme Court in
Alabama & Vicksburg Railway Co. v. Mashburn, 109 So. 2d 533 (Miss. 1959),
addressed this very question. Mashburn held that
       where property is conveyed by a grantor to a railroad company for
       purpose of its right-of-way, without the full description of the land
       conveyed, the occupancy of a particular route by the grantee with
       the consent of the grantor will identify and locate the property for
       such purpose. It indeed would be a travesty on justice to hold a
       deed void for imperfect description where a railroad has constructed
       its right-of-way and has been operating trains over the same for
       over one hundred years.
Id. at 537 (internal citation omitted). We find that Mashburn governs this issue
and establishes that the scope of land at issue is that actually occupied by the
railroad for the last century and a half, notwithstanding the lack of description
in the Deed.
       Second, as to what interest in the land was conveyed, Mashburn is again
highly instructive.6 Under Mashburn, the court is to look to the language of the
deed read in conjunction with the railroad’s statutory charter. Id. at 535. In
assessing the language of the deed, moreover, we are to apply Mississippi’s
statutory presumption that “[e]very estate in lands . . . granted, conveyed, or



       6
         We have previously applied Mashburn to the facts of a very similar but non-
precedential case to reach the same result as here. See Johnson v. Kan. City S. Ry. Co., 208
F. App’x 292 (5th Cir. 2006) (unpublished).

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devised . . . shall be deemed a fee-simple if a less estate be not limited by express
words or do not appear to have been granted, conveyed, or devised by
construction or operation of law.” H UTCHINSON’S M ISS. C ODE, ch. 42, art. 1, para.
23 (1848); see also M ISS. C ODE A NN . § 89-1-5 (1999) (“Every estate in lands
granted, conveyed, or devised . . . shall be deemed a fee-simple if a less estate be
not limited by express words, or unless it clearly appear from the conveyance . . .
that a less estate was intended to be passed thereby.”).
       Applying these three considerations here, we find, like the Mashburn
court, that the Railroad Grant Land was conveyed in fee simple to Great
Northern. In Mashburn, the Mississippi Supreme Court found that the use of
the word “land” in the text of the deed, read together with both the statutory
presumption and the railroad’s charter authorizing land acquisition in fee
simple, was ultimately determinative. 109 So. 2d at 536 (“[T]he deed itself . . .
conveyed that portion of the ‘land’ necessary or useful in the construction, use,
and preservation of the Railroad. It did not convey a right. It conveyed the
land.”).
       We find the same conditions here. The deed grants a “part and portion of
the . . . tract of land”—not a right or set of rights in that land. 7 The statutory
presumption is the same. The charter provided for a “complete title.”8 We
therefore conclude that the Railroad Grant Land was conveyed in fee to the
Great Northern, and that Mr. Ervin thus has no rights in the land.
       The summary judgment evidence that Sprint advanced establishes that
Great Northern and its successors have owned the disputed land in fee simple



       7
          This difference distinguishes Ervin’s case from the case upon which he relies, New
Orleans & Northeastern Railroad v. Morrison, 35 So. 2d 68 (Miss. 1948) (en banc). In that
case, the grantor deeded a “right of way,” which, the court held, signified an easement.
       8
          The governing charter in this case provided for procedures that would “vest a
complete title in said [railroad] company.”

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since 1853. That fact completely defeats Mr. Ervin’s claims, which are all based
upon the premise that he owns the land in question; Illinois Central, as the
successive fee owner, lawfully granted Sprint an easement to install the cable
without any possible cognizable offense to Mr. Ervin or his antecedents.
                                   III. Conclusion
      We therefore AFFIRM the district court’s denial of the motion to remand
and its judgment of dismissal with prejudice. We DENY as MOOT Sprint’s
motion to strike the portions of Mr. Ervin’s brief that rely on arguments not
presented to the district court.




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