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BURKA v. AETNA LIFE INS. CO.

February 9, 1996

PAUL S. BURKA, et al., Plaintiffs,
v.
AETNA LIFE INSURANCE CO., et al., Defendants.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT COURT JUDGE

 INTRODUCTION

 Before the Court is a Motion for Preliminary Injunction, filed by the defendant The American University (the "University") on December 22, 1995 in the above-entitled case. The plaintiffs filed an Opposition thereto on January 2, 1996, which the plaintiffs supplemented on January 22, 1996. The University filed its Reply on January 29, 1996. On January 2, 1996, the defendant Aetna Life Insurance Company ("Aetna") filed a Statement in Support of Motion for Preliminary Infunction. Also before the Court, are the Motions of The Great Atlantic & Pacific Tea Company, Inc. ("A&P") and Salon Jean-Paul, Ltd. ("Jean-Paul") for Leave to Intervene in the above-entitled case. A&P and Jean-Paul have submitted Motions for Preliminary Injunction as well. Finally, on February 5, 1996, the plaintiffs filed a Motion to Dismiss the Counterclaim of the American University or, alternatively, to Remand the Case to the Superior Court of the District of Columbia.

 Based on the pleadings, the entire record herein, and the law applicable thereto, and for the following reasons, the Court shall deny the Motions of A&P and Jean-Paul for Leave to Intervene and for Preliminary Injunctions. The Court shall grant the University's Motion for Preliminary Injunction as provided herein. Also, the Court shall deny the Burkas' Motion to Dismiss and Motion to Remand, without prejudice to the Burkas' right to renew those motions after this case is remanded by the Court of Appeals.

 The above-entitled case involves a dispute concerning Lot 9, Square 1449 in the District of Columbia. For real estate tax assessment purposes, Lot 9 is further subdivided into two "assessment and taxation" lots, known as Lot 806 and Lot 807. Lot 806 contains a building known as 4801 Massachusetts Avenue, N.W., that the University now occupies as its law school. Lot 807 contains a supermarket and other retail stores, as well as a two-level parking deck with 106 spaces on the upper level and 110 spaces on the lower level.

 From the early 1970s until 1993, all of Lot 9 was owned by the Burkas or by various combinations of the Burka family members or trusts for their benefit. In 1978, the Burkas ground-leased Lot 806 to a limited partnership consisting of their family members and others to construct the building on Lot 806. By deed of trust dated May 29, 1979, the leasehold estate and fee title to Lot 806 were subjected to a lien to secure the repayment of financing provided by the defendant Aetna. The building was constructed in 1979-80, originally for retail and general office use. The building includes a three-level underground parking garage.

 A Declaration of Easement was executed on December 20, 1978 and recorded May 25, 1979, as Instrument No. 16911. The Declaration conveys

 
to the owners from time to time of . . . [Lot 806] . . . and any ground lessee, tenants, occupants, guests and business invitees, a non-exclusive easement for vehicular parking of not less than 236 automobiles on the parking areas located from time to time upon . . . [Lot 807].
 
* * *
 
The owners from time to time of [Lot 807] . . . shall, at its expense, maintain the driveways and parking areas located on . . . [Lot 807] at its sole expense. . . . The owners of . . . [Lot 807] shall have the right to establish uniform and reasonable rules, regulations ana conditions governing the use of the driveways and parking areas as may be appropriate for the convenience and safety of the persons making use thereof.

 In early 1993, Aetna foreclosed and acquired fee title to Lot 806. On April 22, 1994, the Burkas filed the above-captioned case in the Superior Court of the District of Columbia against the defendant Aetna, seeking, inter alia, to invalidate the foreclosure by which Aetna had acquired title to Lot 806 and to invalidate the parking easement conveyed by the 1978 Declaration.

 On May 3, 1994, Aetna removed the case to this Court on the basis of diversity jurisdiction. Aetna moved for and obtained summary judgment on all counts. On June 23, 1994, Aetna conveyed Lot 806 and the parking easement to the University by deed, retaining an interest as the secured party under a purchase-money deed of trust.

 The Court of Appeals affirmed summary judgment as to the validity of the foreclosure ana the Declaration of Easement. However, the Court of Appeals remanded the case for further consideration of the issue whether the building on Lot 806, known as 4801 Massachusetts Avenue, N.W., exceeded the gross floor area allocated to it under the Declaration of Easement. Burka v. Aetna Life Ins. Co., 312 U.S. App. D.C. 439, 56 F.3d 1509 (D.C. Cir. 1995). The Court of Appeals agreed with this Court that the gross floor area issue was not relevant to the validity of the contested documents but, rather, was relevant to the Burkas request for a declaration that neither Aetna nor its successors were entitled to use or erect any structure exceeding the 179,302 square feet specified in those documents. Id. at 1511-13.

 After remand, Aetna and the Burkas filed motions to bring the University into the case. Aetna's motion sought to substitute the University pursuant to Fed. R. Civ. P. 25(c), while the Burkas' motion sought to join the University as an indispensable party pursuant to Fed. R. Civ. P. 19. Under Rule 25(c), the substitution of a nondiverse party, such as the University, would not divest the court of jurisdiction. The Burkas argued for the University's joinder under Rule 19 and for a remand to Superior Court because, under 28 U.S.C. § 1447(e), the curt may not retain jurisdiction over a case when a non-diverse party is joined.

 The Burkas' petition to appeal was granted by the Court of Appeals on December 1, 1995. A briefing schedule, providing for oral argument on May 9, 1996, was issued on December 12, 1995.

 Meanwhile, in February 1995, the Burkas announced Parking Rules and Regulations purporting to regulate the use of the parking facilities on Lot 807. The University filed the pending motion for preliminary injunction on December 22, 1995, seeking an order enjoining the Burkas from enforcing the Rules and Regulations and from otherwise interfering with, restricting, or diminishing the rights granted and conveyed under the Declaration of Easement. It did so in anticipation of the opening on January 8, 1996 of its new law school facility at 4801 Massachusetts Avenue, N.W. *fn1" On January 2, 1996, the Court issued a "Notice to the Clerk" of the Court of Appeals, requesting that the Court of Appeals remand the above-entitled case for consideration of the University's Motion for Preliminary Injunction. By Order filed January 3, 1996, the Court of Appeals directed the parties to file responses to the Court's Notice.

 Also on January 3, 1996, the Court held a hearing on the University's Motion for Preliminary Injunction. At that hearing, the parties reached an interim arrangement, which was supplemented by the Court and counsel for the parties at the close of the hearing and was entered in the above-captioned case. The arrangement granted the University exclusive use of 73 parking spaces in the lower level of the Burkas' parking garage. The arrangement further provided that, in the event the Court grants the instant motion for preliminary injunction, the University will retain exclusive use of the 73 spaces for the duration of the litigation. Also, the arrangement requested that the Court decide the preliminary injunction without considering whether there may be any failure to join any necessary or indispensable party, consider potential harm to third persons, and consider applications made by any third party to join or intervene. The Burkas further agreed not to appeal an order granting the preliminary injunction on the ground that an indispensable party was not joined.

 On January 18, 1996, the Court of Appeals entered an Order stating that the District Court retains jurisdiction to consider the motion for preliminary injunction. The parties agree that the motion is ripe for the Court's disposition at this time, *fn2" Also for the Court's disposition are the Motions for Leave to Intervene by A&P and Jean-Paul, to which the Court turns first.

 DISCUSSION

 I. THE COURT SHALL DENY THE MOTIONS OF A&P AND JEAN-PAUL TO INTERVENE AS OF RIGHT PURSUANT TO RULE 24(a)(2) BECAUSE THEIR INTERESTS ARE ...


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