Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-0075-DBS-PAC ORIN LOOS et al., Plaintiffs, vs. LEVEL 3 COMMUNICATIONS, LLC, WILLIAMS COMMUNICATIONS, INC. SPRINT CORPORATION, and UNION PACIFIC RAILROAD COMPANY, Defendants.

MEMORANDUM OF DEFENDANTS SPRINT CORPORATION, LEVEL 3 LLC, AND WILTEL COMMUNICATIONS, LLC IN OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION ______________________________________________________________________________

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TABLE OF CONTENTS I. ANALYSIS OF PLAINTIFF'S CLAIMS. ......................................................................... 5 A. Determination of the Railroads' Interest in Right-of-Ways Created by the Act........................................................................................................................... 6 B. Determination of the Railroads' Interest in Private Conveyance Right-ofWays. .................................................................................................................... 11 C. Determination of Who Owns Any Interest the Railroad Doesn't......................... 14 D. Passage of Time Defenses. ................................................................................... 14 E. Time of Acquisition. ............................................................................................. 16 F. Damages................................................................................................................ 16 CLASS CERTIFICATION STANDARDS...................................................................... 17 THE COURT MAY NOT CERTIFY A CLASS WHOSE MEMBERS CAN BE IDENTIFIED ONLY BY LITIGATING WHO OWNS WHAT INTERESTS IN THE RIGHT-OF-WAYS. ................................................................................................. 18 CERTIFICATION UNDER RULE 23(B)(3) IS INAPPROPRIATE BECAUSE INDIVIDUAL ISSUES PREDOMINATE OVER ANY COMMON QUESTIONS. ................................................................................................................... 21 A. Individual Issues Pertaining to the Railroad's Interests in the Right-ofWays Predominate. ............................................................................................... 21 B. Individual Issues Pertaining to Class Member's Interests in the Right-ofWays Predominate. ............................................................................................... 23 C. Individual Issues Pertaining to Passage of Time Defenses Predominate. ............ 25 D. Individual Issues Pertaining to Time of Acquisition Predominate. ...................... 26 E. Individual Issues Pertaining To Damages Predominate. ...................................... 26 CERTIFICATION UNDER RULE 23(B)(2) IS INAPPROPRIATE. ............................. 28 DEFENDANTS ARE NOT ESTOPPED FROM ARGUING THAT ANY REQUIREMENT OF CLASS CERTIFICATION HAS NOT BEEN MET. ................... 29 A. The Elements of Judicial Estoppel Are Not Present............................................. 30 B. The Cases On Which Plaintiff Relies Do Not Support Estoppel Here. ................ 34 C. Estoppel Would Provide No Basis For Class Certification. ................................. 35 PLAINTIFF CANNOT CARRY HIS BURDEN OF ESTABLISHING TYPICALITY. .................................................................................................................. 37 A. Proof that Plaintiff Owns an Interest in a Parcel of the Right-of-Ways Would Not Prove That Other Class Members Own Any Interest. ....................... 38 B. Plaintiff Cannot Shown That His Claims Are Typical On Damages. .................. 39 PLAINTIFF CANNOT CARRY HIS BURDEN OF ESTABLISHING ADEQUACY OF REPRESENTATION. ......................................................................... 40

II. III.

IV.

V. VI.

VII.

VIII.

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IX. X.

THE AUTHORITY ON WHICH PLAINTIFF RELIES DOES NOT SUPPORT CLASS CERTIFICATION............................................................................................... 41 PLAINTIFF MAY NOT USE RULE 23(C)(4)(A) TO MANUFACTURE COMPLIANCE WITH RULES 23(A) AND (B)............................................................. 44

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TABLE OF AUTHORITIES Cases Adamson v. Bowen, 855 F.2d 668 (10th Cir. 1988)...................................................................... 29 Alabama v. Blue Bird Body Co., 573 F.2d 309 (5th Cir. 1978) .................................................... 21 Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1990) ...................................... 28, 29, 45 Arch v. American Tobacco Co., 175 F.R.D. 469 (E.D. Pa. 1997)................................................ 45 Barnes v. Winford, 833 P.2d 756 (Colo. Ct. App. 1992)........................................................ 14, 23 Bell Atlantic Corp. v. AT&T, 339 F.3d 294 (5th Cir. 2003) ......................................................... 21 Buford v. H&R Block, Inc., 168 F.R.D. 340 (S.D. Ga. 1996)...................................................... 34 Buhl v. Sprint Communications Co., 840 S.W.2d 904 (Tenn. 1992) ............................................. 4 Buttz v. Northern Pacific Ry. Co., 119 U.S. 55 (1886) .................................................................. 6 Calhoun v. K.C. Southern, Case No. 3-03CV1511 (W.D. La. Jul. 12, 2004) ............................................................................. 1, 19, 24, 27, 37, 38, 40 Calhoun v. K.C. Southern, Case No. 3-03CV1511 (W.D. La. June 8, 2004)................................. 1 Carnegie v. Household Int'l, 376 F.3d 656 (7th Cir. 2004)..................................................... 32, 34 Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) ............................................ 43, 44 Chambers v. MCI WorldCom Network Services, Inc., Case No. 00-C-348-C (W.D. Wisc. March 2, 2001)............................................................................ 2, 19, 20, 21, 23, 26, 37, 38, 40 Chambers v. Sprint Corporation, Case No. 00-C-349-C (W.D. Wisc. March 2, 2001) ................. 2 Clairmont v. United States, 225 U.S. 551 (1912) ........................................................................... 6 Cohn v. Massachusetts Mut. Life Ins. Co., 189 F.R.D. 209 (D. Conn. 1999).............................. 45 Colorado Bridge & Construction Co., 224 P. 222 (1924) ............................................................ 16 Cook v. Rockwell International Corp., 273 F. Supp. 2d 1175 (D. Colo. 2003) ........................... 15 Corley v. Entergy Corp., 220 F.R.D. 478 (E.D. Tex. 2004)......................................... 2, 28, 31, 43 Corley v. Entergy Corp., 222 F.R.D. 316 (E.D. Tex. 2004)............................................... 2, 25, 29 Crawford v. French, 633 P.2d 524 (Colo. 1981) .......................................................................... 17 Currier v. Doran, 242 F.3d 905 (10th Cir. 2001)........................................................................... 10 Davis v. MCI Tel. Corp., 606 So.2d 734 (Fla. Ct. App. 1992)....................................................... 4 DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970)............................................................ 17, 18 Denning v. U.S. Sprint Communication Co., Case No. CIV-90-1317-R (W.D. Okla. 1991) ........................................................................................................................................... 4 Denver & S.L. Ry. Co. v. Pacific Lumber Co., 86 Colo. 86, 278 P. 1022 (1929).......................... 4 Energy Transp. Sys., Inc. v. Union Pac. R.R. Co., 606 F.2d 934 (10th Cir. 1979) ......................... 8 Energy Transp. Sys., Inc. v. Union Pac. R.R. Co., 619 F.2d 696 (8th Cir. 1980) ........................... 8 Farmers, Reservoir & Irrigation Co. v. Sun Production Co., 721 P.2d 1198 (Colo. Ct. App. 1986) .......................................................................................................................... 12, 13 Fisher v. Virginia Electric and Power Co., 217 F.R.D. 201 (E.D. Va. 2003)................... 41, 42, 43 Frankfort Oil Co. v. Abrams, 413 P.2d 190 (1966) ................................................................ 16, 42 Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982) ........................................................ 40 Gipson v. Sprint Communications Company L.P., 81 P.3d 65 (Okla. Ct. App. 2003) ....................................................................................... 2, 20, 22, 31, 36, 39 Great Northern Railway Co. v. United States, 315 U.S. 262 (1942) .............................................. 6 Hallaba v. WorldCom Network Services, Inc., 196 F.R.D. 630 (N.D. Okla. 2000) ............................................................................................. 2, 19, 21, 25, 36, 41 iii

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Harrison v. Pinnacol Assurance, 107 P.3d 969 (Colo. Ct. App. 2004)................................... 15, 25 Haynes v. Williams, 88 F.3d 898 n. 4 (10th Cir. 1996)................................................................. 10 Hebert v. Doyle Land Service, Inc., Case No. 00-1851 (W.D. La. April 24, 2002)....................... 2 Hebert v. Doyle Land Service, Inc., Case No. 00-1851 (W.D. La. March 5, 2002)..... 2, 22, 24, 27 Home on the Range v. AT&T Corp., 386 F. Supp.2d 999, 1016 (S.D. Ind. 2005) .................... 8, 9 Hugunin v. McCunniff, 2 Colo. 367, 369-70, 1874 W.L. 192 * 2 (Colo. Terr. 1874) ........... 16, 26 Hynek v. MCI World Communications, Inc., 202 F. Supp. 2d 831 (N.D. Ind. 2002) ................... 4 In re American Medical Sys., 75 F.3d 1069 (5th Cir. 1996) ......................................................... 40 In re WorldCom, Inc., 2005 WL 1208527 (S.D.N.Y. 2005) ................................................ 1, 5, 41 In re WorldCom, Inc., 320 B.R. 772, 776-784 (S.D.N.Y. 2005).................................................. 15 In re WorldCom, Inc., 328 B.R. 35 (Bankr. S.D.N.Y. 2005) ....................................................... 15 In re WorldCom, Inc., Case No. 01-13533(ASG) (Bankr. S.D.N.Y. Dec. 28, 2004)2, 5, 23, 31, 39 In re WorldCom, Inc., Case No. 02-13533(ASG) (Bankr. S.D.N.Y. Jan. 3, 2005)............ 2, 23, 39 Internat'l Paper Co. v. MCI WorldCom Network Services, Inc., 202 F. Supp. 2d 895 (W.D. Ark. 2002)........................................................................................................................ 4 Isaacs v. Sprint Corp., 261 F.3d 679 (7th Cir. 2001)......................................... 1, 18, 20, 21, 25, 36 Johnson v. K.C. Southern, 224 F.R.D. 382 (S.D. Miss. 2004) ................... 1, 20, 25, 26, 32, 36, 41 Johnson v. K.C. Southern, Case No. 3:03CV360LN (S.D. Miss. Feb. 10, 2005) .......................... 4 Johnson v. Lindon City Corp., 405 F.3d 1065 (10th Cir. 2005).............................................. 30, 32 Kershaw Sunnyside Ranches, Inc. v. Yakima Inter Urgan Lines Ass'n., 91 P.3d 104 (Wash. Ct. App. 2004) ................................................................................................................ 4 Kirkman v. North Carolina R.R. Co., 220 F.R.D. 49 (M.D.N.C. 2004)..... 2, 24, 26, 27, 29, 39, 41 Kunzman v. Union Pac. R.R. Co., 456 P.2d 743 (Colo. 1986)....................................................... 8 Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229 (Colo. 1998) ............................... 13, 25 Lincoln Savings and Loan Ass'n v. Colorado, 768 P.2d 733 (Colo. Ct. App. 1988). 12, 14, 23, 46 Luttgen v. Fischer, 107 P.3d 1152 (Colo. Ct. at 2005) ................................................................. 14 Mauler v. Bayfield County, 309 F.3d 997 (7th Cir. 2002) ...................................................... 6, 7, 9 McGuire v. Internat'l Paper Co., 1994 WL 261360 (S.D. Miss. 1994)....................................... 18 McHan v. Grandbouche, 99 F.R.D. 260 (D. Kan. 1983) .............................................................. 18 Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632 (Tenn. 1996)............................. 36 Mellon v. Southern Pac. Transp. Co., 750 F. Supp. 226 (W.D. Tex. 1990) ................................... 4 Midland Valley Railroad Co. v. Sutter, 28 F.2d 163 (8th Cir. 1928) .............................................. 4 Missouri, Kansas, & Texas Ry. Co. v. Early, 641 F.2d 856, 860 (10th Cir. 1981) ................... 7, 10 Missouri, Kansas, & Texas Ry. Co. v. Oklahoma, 271 U.S. 303 (1926) ....................................... 6 Missouri, Kansas, & Texas Ry. Co. v. Roberts, 152 U.S. 114 (1894)........................................ 6, 9 Monreal v. Potter, 367 F.3d 1224 (10th Cir. 2004) ....................................................................... 28 Neely v. Ethicon, Inc., 2001 WL 1090204, * 5 (E.D. Tex. 2001) ................................................ 45 New Hampshire v. Maine, 532 U.S. 742 (2001) .................................................................... 30, 32 New Mexico v. United States Trust Co., 172 U.S. 171 (1898) .................................................. 6, 9 Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267 (1903) ................................................ 6, 7, 9 Nudell v. The Burlington Northern and Santa Fe Railroad Co., 2002 WL 1543725 (D.N.D. 2002) ............................................................................................... 2, 20, 26, 39, 40, 41 Nudell v. The Burlington Northern and Santa Fe Railroad Co., Case No. A3-01-41 (D.N.D. Nov. 6, 2002) ................................................................................................................ 2 Ostler v. Level 3 Communications, Inc., Case No. IP 00-0718-C H/K (S.D. Ind. Aug. 27, 2002) ......................................................................................................................... 2, 22, 31, 37 iv

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Oxford v. Williams Cos., 154 F. Supp. 2d 942 (E.D. Tex. 2001) .................................................. 4 Oxford v. Williams Cos., Inc., 137 F. Supp. 2d 756 (E.D. Tex. 2001) .................................... 2, 36 Premier Elec. Constr. Co. v. NECA, Inc., 814 F.2d 358 (7th Cir. 1987) ............................... 18, 20 Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) ......................................................... 12 Public Service Co. of Colorado v. Van Wyk, 27 P.3d 377 (Colo. 2001) ..................................... 15 Radetsky v. Jorgensen, 202 P. 175 (Colo. 1921) .......................................................................... 12 Regan v. Williams Communications, Inc., Case No. S-01-0779 WBS JFM (E.D. Cal. June 17, 2005)........................................................................................................................... 32 Regan v. Williams Communications, Inc., Case No. S-01-0779 WBS JFM (E.D. Cal. May 16, 2003)....................................................................................................................... 2, 38 Rice v. United States, 479 F.2d 58 (8th Cir. 1973)...................................................................... 7, 9 Rink v. Cheminova, 203 F.R.D. 648 (M.D. Fla. 2001) ................................................................ 45 Roman v. ESB, Inc., 550 F.2d 1343 (4th Cir. 1976) ..................................................................... 17 Sandoval v. Archdiocese of Denver, 8 P.3d 598 (Colo. Ct. App. 2000) ................................ 15, 25 Schweizer v. Level 3 Communications, Inc., Case No. 99 CV 1323 (Colo. Dist. Ct. Nov. 25, 2002) .............................................................................. 1, 2, 16, 20, 21, 23, 24, 26, 27 Shockley v. Public Service Co. of Colorado, 525 P.2d 1183 (Colo. Ct. App. 1974) ................... 14 Shook v. El Paso County, 386 F.3d 963 (10th Cir. 2004) ............................................. 3, 17, 18, 29 Skokut v. MCI, 613 A.2d 55 (Pa. Commw. Ct. 1992).................................................................... 4 Smith v. MCI WorldCom, Inc., Case No. 99-CV-681-H (N.D. Okla. March 31, 2000).................................................................................. 2, 19, 21, 25, 41 Smith v. Sprint Communications Co. L.P., 387 F.3d 612 (7th Cir. 2004) ............................ 1, 3, 33 Southwestern Refining Co., Inc. v. Bernal, 22 S.W. 3d 425 (Tex. 2000) .............................. 27, 43 Sprague v. General Motors Corp., 133 F.3d 388 (6th Cir. 1998) .................................................. 37 St. Joseph and Denver City Railroad Co. v. Baldwin, 103 U.S. 426 (1880) .................................. 6 Stirman v. Exxon Corp., 280 F.3d 554 (5th Cir. 2002) ........................................................... 18, 40 Sullivan v. Clements, 1 Colo. 261 (1871 W.L. 160 * 1) ........................................................ 16, 26 Swisher v. United States, 189 F.R.D. 638 (D. Kan. 1999) ......................................... 11, 26, 37, 38 Union Pacific Ry. Co. v. City of Atoka, 2001 WL 273298, *3-5 (10th Cir. 2001)................... 7, 10 Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996) ................................................. 43 Webster v. Boone, 982 P.2d 1183 (Colo. Ct. App. 2000) ...................................................... 17, 26 Wilcox v. Jackson, 38 U.S. 498 (1839) .......................................................................................... 7 Williams v. Boeing Co., 225 F.R.D. 626 (W.D. Wash. 2005) ..................................................... 35 Wyoming v. Udall, 379 F.2d 635 (10th Cir. 1967)...................................................................... 7, 9 Statutes Colo. Rev. Stat. § 13-80-102 ........................................................................................................ 14 Colo. Rev. Stat. § 38-30-107 ........................................................................................................ 12 Federal Land Grant Act of July 1, 1862, 12 Stat. 489 .................................................................... 5 Other Authorities Manual for Complex Litigation 2d § 30.14 at 213 (1985)............................................................ 18 Manual for Complex Litigation 3d at 217 (1995)......................................................................... 18 Restatement (Third) of Property § 4.1 cmt. d ............................................................................... 13

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Rules Fed. R. Civ. P. 23(a) ..................................................................................................................... 17 Fed. R. Civ. P. 23(c)(4)(A) ........................................................................................................... 44 Rule 23(b)(2)................................................................................................................................. 28

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-0075-DBS-PAC ORIN LOOS et al., Plaintiffs, vs. LEVEL 3 COMMUNICATIONS, LLC, WILLIAMS COMMUNICATIONS, INC. SPRINT CORPORATION, and UNION PACIFIC RAILROAD COMPANY, Defendants.

MEMORANDUM OF DEFENDANTS SPRINT CORPORATION, LEVEL 3 LLC, AND WILTEL COMMUNICATIONS, LLC IN OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION Fiber optic right-of-way litigation presents "a nightmare of a class action." Isaacs v. Sprint Corp., 261 F.3d 679, 682 (7th Cir. 2001); see also Schweizer v. Level 3 Communications, Inc., Case No. 99 CV 1323 (Colo. Dist. Ct. Nov. 25, 2002), slip op. at 20 (Ex. 1). Federal courts, therefore, have held unanimously that a litigation class may not be certified in cases where plaintiff complains of the installation of fiber optic cable in railroad right-of-ways. Smith v. Sprint Communications Co. L.P., 387 F.3d 612, 614 (7th Cir. 2004); Isaacs, 261 F.3d at 682; In re WorldCom, Inc., 2005 WL 1208527 (S.D.N.Y. 2005) ("WorldCom III") (Ex. 2); Johnson v. K.C. Southern, 224 F.R.D. 382 (S.D. Miss. 2004); Calhoun v. K.C. Southern, Case No. 303CV1511 (W.D. La. Jul. 12, 2004) (Ex. 3); Calhoun v. K.C. Southern, Case No. 3-03CV1511 (W.D. La. June 8, 2004) (Ex. 3a);1 Kirkman v. North Carolina R.R. Co., 220 F.R.D. 49
1

The June 8, 2004 Calhoun opinion is a Magistrate's Recommendation. On July 12, 2004, the district court, based on "an independent review of the entire record," denied class certification for the reasons contained in the Recommendation. Subsequent citations to Calhoun refer to the Magistrate's Recommendation.

1

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(M.D.N.C. 2004); Regan v. Williams Communications, Inc., Case No. S-01-0779 WBS JFM (E.D. Cal. May 16, 2003) ("Regan I") (Ex. 4); Hebert v. Doyle Land Service, Inc., Case No. 001851 (W.D. La. April 24, 2002) (Ex. 5); Hebert v. Doyle Land Service, Inc., Case No. 00-1851 (W.D. La. March 5, 2002) (Ex. 5a);2 Nudell v. The Burlington Northern and Santa Fe Railroad Co., Case No. A3-01-41 (D.N.D. Nov. 6, 2002); (Ex. 6); Nudell v. The Burlington Northern and Santa Fe Railroad Co., 2002 WL 1543725 (D.N.D. 2002); Oxford v. Williams Cos., Inc., 137 F. Supp. 2d 756 (E.D. Tex. 2001); Chambers v. MCI WorldCom Network Services, Inc., Case No. 00-C-348-C (W.D. Wisc. March 2, 2001) (Ex. 7); Chambers v. Sprint Corporation, Case No. 00-C-349-C (W.D. Wisc. March 2, 2001) (Ex. 8);3 Hallaba v. WorldCom Network Services, Inc., 196 F.R.D. 630 (N.D. Okla. 2000); Smith v. MCI WorldCom, Inc., Case No. 99-CV-681-H (N.D. Okla. March 31, 2000) (Ex. 9); In re WorldCom, Inc., Case No. 02-13533(ASG) (Bankr. S.D.N.Y. Jan. 3, 2005) ("WorldCom II") (Ex. 10); In re WorldCom, Inc., Case No. 0113533(ASG) (Bankr. S.D.N.Y. Dec. 28, 2004) ("WorldCom I") (Ex. 11); see also Corley v. Entergy Corp., 222 F.R.D. 316 (E.D. Tex. 2004) (electric utility easements); Corley v. Entergy Corp., 220 F.R.D. 478 (E.D. Tex. 2004); Ostler v. Level 3 Communications, Inc., Case No. IP 00-0718-C H/K (S.D. Ind. Aug. 27, 2002) (Ex. 12) (highway right-of-way). State courts also have held that fiber optic right-of-way cases may not be litigated as class actions. Gipson v. Sprint Communications Company L.P., 81 P.3d 65 (Okla. Ct. App. 2003); Schweizer, supra. In moving for class certification here plaintiff4 wholly ignores the 22 federal and state decisions that have held that fiber optic right-of-way cases may not be maintained as class
2

The March 5, 2002 Hebert opinion is a Magistrate's Recommendation. On April 24, 2002, the district court concluded that "the findings in the report and recommendation are clearly correct," and denied class certification. Subsequent citations to Hebert refer to the Magistrate's Recommendation.
3 4

Subsequent citations to Chambers are to the Chambers v. MCI WorldCom opinion.

Plaintiffs are Orin Loos and Timothy J. Thompson. After Union Pacific noticed Mr. Thompson's deposition, plaintiffs' counsel informed defendants' counsel that Mr. Thompson would not make a request to be appointed as

2

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actions. Instead, he makes conclusory assertions as to the perceived merits of his claims and rails at defendants for having had the temerity to install telecommunication lines in railroad right-of-ways. That plaintiff is so far off base on both counts should not affect the Court's class certification decision. Shook v. El Paso County, 386 F.3d 963, 971 (10th Cir. 2004). Still, in order to avoid any misperceptions based on plaintiff's misplaced emphasis, defendants feel compelled briefly to point out why plaintiff is wrong. First, plaintiff asserts that "[r]ailroads, including UP, typically do not own land underlying their rights-of-way, but possess only an easement for their use in operating a railroad." Memorandum in Support at 1. Plaintiff presents no evidence in support of this assertion. In the context of the proposed nationwide settlement in Smith v. Sprint, however, plaintiff's counsel stated: Based on the research completed by plaintiffs' experts . . . it is estimated that at least 25% of the miles adjacent to the Right-of-Way here are held by landowners with titles superior to the railroads'. Plaintiffs' Memorandum in Support of Preliminary Approval at 1-2 (Ex. 13)5. They then explained that their experts reviewed more than 8,400 railroad source deeds to support this conclusion. Id. at 6-7. Second, telecommunications companies have installed their lines in railroad right-ofways since the right-of-ways were created. Thus, for example, the Federal Land Grant Act of July 1, 1862, under which the right-of-way adjacent to plaintiff's property was created, is titled "An Act to Aid in the Construction of a Railroad and Telegraph Line." 12 Stat. 489 (Ex. 14). Third, as the Colorado Supreme Court has stated:
class representative. The Motion for Class Certification is made only by plaintiff Loos. Subsequent references in this Memorandum to plaintiff are to Mr. Loos.
5

This 64 page Memorandum was filed under seal in Smith. Upon request, defendants will submit it for filing under seal here.

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The decisions of the national courts and of a majority of the state jurisdictions, however, are to the effect that the railroad company is entitled to the exclusive use and possession of its right-of-way, and that the owner of the servient estate has no right to occupy the surface of the land conveyed for a right-of-way, in any mode, or for any purpose, without the railroad company's consent. Denver & S.L. Ry. Co. v. Pacific Lumber Co., 86 Colo. 86, 89-90, 278 P. 1022, 1023-24 (1929) (quoting Midland Valley Railroad Co. v. Sutter, 28 F.2d 163, 165 (8th Cir. 1928)). A Colorado court, therefore, would add to the nearly unanimous body of case law holding that installation of fiber optic cable is within the scope of an easement for railroad purposes. See Johnson v. K.C. Southern, Case No. 3:03CV360LN (S.D. Miss. Feb. 10, 2005) (Ex. 15), slip op. at 3 n.2; Internat'l Paper Co. v. MCI WorldCom Network Services, Inc., 202 F. Supp. 2d 895 (W.D. Ark. 2002); Hynek v. MCI World Communications, Inc., 202 F. Supp. 2d 831 (N.D. Ind. 2002); Oxford v. Williams Cos., 154 F. Supp. 2d 942 (E.D. Tex. 2001); Denning v. U.S. Sprint Communication Co., Case No. CIV-90-1317-R (W.D. Okla. 1991) (Ex. 16), slip op. at 16; Mellon v. Southern Pac. Transp. Co., 750 F. Supp. 226 (W.D. Tex. 1990); Kershaw Sunnyside Ranches, Inc. v. Yakima Inter Urgan Lines Ass'n., 91 P.3d 104 (Wash. Ct. App. 2004); Davis v. MCI Tel. Corp., 606 So.2d 734 (Fla. Ct. App. 1992), review denied 618 So. 2d 208 (Fla. 1993); Skokut v. MCI, 613 A.2d 55 (Pa. Commw. Ct. 1992).6

6

Buhl v. Sprint Communications Co., 840 S.W.2d 904 (Tenn. 1992) is the only case in which a court has held that the owner of the underlying fee may be entitled to compensation when fiber optic cable is installed in an easement for railroad purposes. The Buhl decision reversed the trial court's grant of summary judgment, concluding that the summary judgment record showed that "the telephone cable was not constructed for [the railroad's] use and is not used by [the railroad]." Id. at 910.

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In light of these decisions, plaintiff's counsel has recognized, that even if a litigation class could be certified, "trial would have significant risks for plaintiff." Plaintiff's Memorandum in Support of Preliminary Approval at 21. A litigation class, however, may not be certified. There are a number of predominate individual issues that would have to be considered to determine the claims of plaintiff and all putative class members. These individual issues preclude plaintiff from meeting his burden to show that the requirements of Fed. R. Civ. P. 23 have been met. As explained by the WorldCom court: The reason so many courts have denied class certification in these circumstances is obvious: the rights of the individual landowners here implicated vary radically from landowner to landowner and often require resort to complicated and hoary documents to make any kind of determination. Thus "[e]ach of the Claimants' claims is based on facts specific to that Claimant" and the "facts and legal arguments surrounding each of the Claimants are separate and distinct from one another." WorldCom III, slip op. at *3 (Ex. 2) (quoting WorldCom I, slip op. at 8). The Court, therefore, should follow every other federal court that has considered the issue and deny class certification. I. ANALYSIS OF PLAINTIFF'S CLAIMS. Plaintiff alleges that he and putative class members own real property adjacent to portions of railroad right-of-ways (the "Right-of-Ways") in which the telecom defendants have installed fiber optic cables (the "Fiber Optic Cables"). Defendant Union Pacific Railroad Company ("Union Pacific") owns portions of the Right-of-Ways. The portion of the Right-of-Ways adjacent to plaintiff's property was created by the Federal Land Grant Act of July 1, 1862, 12 Stat. 489, as amended by the Act of July 2, 1864 (the "Act") (Ex. 14). Fillebeck Declaration (Ex. 17). The class plaintiff seeks to represent also would include persons who own property adjacent to portions of the Right-of-Ways that were created by private conveyance. Complaint, ¶ 15. The method by which plaintiff would have to 5

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prove that any individual class member owned an interest in the Right-of-Ways varies, depending on how the Right-of-Way was created. A. Determination of the Railroads' Interest in Right-of-Ways Created by the Act. 1. The Act Conveyed Fee Title to Land then in the Public Domain.

In the middle of the nineteenth century, "Congress embarked on a policy of subsidizing railroad construction by lavish grants from the public domain." Great Northern Railway Co. v. United States, 315 U.S. 262, 273 (1942). Thus, prior to 1875, federal land grants to railroads included not just the land necessary for their right-of-ways, but also substantial additional public lands in alternating sections on either side of the right-of-way. For example, Section 3 of the Act granted to the railroad "every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road." In Great Northern, the Supreme Court pointed out that "[w]hen Congress made outright grants to a railroad of alternate sections of public lands along the right-of-way, there is little reason to suppose that it intended to give only an easement in the right-of-way granted in the same act." Great Northern, 315 U.S. at 278. The Supreme Court, therefore, consistently has held that the right-of-way granted in pre-1875 acts is held by the railroad in fee. Missouri, Kansas, & Texas Ry. Co. v. Oklahoma, 271 U.S. 303, 304, 308 (1926); Clairmont v. United States, 225 U.S. 551, 556 (1912); Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 271 (1903); New Mexico v. United States Trust Co., 172 U.S. 171 (1898); Missouri, Kansas, & Texas Ry. Co. v. Roberts, 152 U.S. 114, 116-17 (1894); Buttz v. Northern Pacific Ry. Co., 119 U.S. 55, 66 (1886); St. Joseph and Denver City Railroad Co. v. Baldwin, 103 U.S. 426, 429-30 (1880); see also Mauler v. Bayfield County, 309 F.3d 997 (7th Cir. 2002); Union Pacific Ry. Co.

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v. City of Atoka, 2001 WL 273298, *3-5 (10th Cir. 2001); Missouri, Kansas, & Texas Ry. Co. v. Early, 641 F.2d 856, 860 (10th Cir. 1981). Where the railroad did not receive title in fee simple absolute, the remaining property interest was a right of reverter, in the event that the railroad abandoned the right-of-way. Townsend, 190 U.S. at 271. 2. The United States Retained any Interest that the Act did not Convey.

The grant of fee title in the right-of-ways appropriated the public land and removed it from the public domain. The land therefore became subject to the "appropriation doctrine," under which: whensoever a tract of land shall have been once legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands: and no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it: although no other reservation were made of it. Wilcox v. Jackson, 38 U.S. 498, 513 (1839). Therefore, when the United States subsequently conveyed public land traversed by a right-of-way created by the Act, the grantee did not acquire that remaining property interest. As the Townsend court stated: [T]he land forming the right-of-way therein was taken out the category of public land subject to preemption and sale, and the land department was therefore without authority to convey rights therein. It follows that the homesteaders acquired no interest in the land within the right-of-way because of the fact that the grant to them was in the full legal subdivisions. Townsend, 190 U.S. at 270; see also Mauler, 309 F.3d at 1002 (adjoining property owners "never possessed a legal interest in the former railroad corridor"); Wyoming v. Udall, 379 F.2d 635; 640 (10th Cir. 1967) (when the United States granted Wyoming land traversed by pre-1872 right-of-way, "title to the servient estate did not pass with the conveyance of the encumbered tract. Instead it remained in the United States and the United States retains the rights ... not granted to the railroad."); Rice v. United States, 479 F.2d 58, 59 (8th Cir. 1973) (homestead grant 7

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of land traversed by pre-1872 right-of-way conveyed no interest in the right-of-way because "under [Townsend] the 400-foot strip of land conveyed to the railroad was taken out of the category of public land subject to preemption and sale"); Home on the Range v. AT&T Corp., 386 F. Supp.2d 999, 1016 (S.D. Ind. 2005) ("under Wilcox and the consistent line of Supreme Court precedent following it, the land ­ surface and subsurface ­ therefore was severed from the category of public lands and did not pass with the patents even though the patents made no express exception for the rights of way"); Kunzman v. Union Pac. R.R. Co., 456 P.2d 743, 746 (Colo. 1986) ("having no interest in the right-of-way, [plaintiffs] have no standing to challenge Union Pacific's actions with respect thereto"). In the face of this authority, plaintiffs in other fiber optic right-of-way actions have relied on Energy Transp. Sys., Inc. v. Union Pac. R.R. Co., 619 F.2d 696 (8th Cir. 1980) ("ETSI-8"); and Energy Transp. Sys., Inc. v. Union Pac. R.R. Co., 606 F.2d 934 (10th Cir. 1979) ("ETSI10"). Each case involved the Act. In ETSI-8, the court held that the railroad's interest in a rightof-way adjacent to an even-numbered section, which was granted by Section 2 of the Act, "is limited to surface and other rights used in the construction and operation of the railroad", 619 F.2d at 699, and that the United States had authority to grant the remaining interest in the rightof-way to the State of Nebraska. Id. at 700. The ESTI-10 court held that the right-of-way adjacent to an even-numbered section did not include the servient estate underlying the right-ofway and that the United States had authority to convey the servient estate to a subsequent homesteader, 606 F.2d at 937, that the right-of-way adjacent to odd-numbered sections was granted by Section 3 of the Act and included the servient estate, Id. at 938, and that the railroad, by deeds, had conveyed the servient estate to plaintiffs' predecessors. Id.

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Despite the ETSI decisions, the holding of the Supreme Court in Townsend - that the entire right-of-way granted by the Act of July 1, 1862 was taken out of the category of public land and that the United States was therefore without authority to convey further rights therein remains good law. Mauler, 309 F.3d at 999; Udall, 379 F.2d at 640, Home on the Range, 386 F. Supp.2d at 1004-07, 1011, 1014, 1015, 1016. The ETSI holdings that the United States could convey its interest directly conflicts with Townsend, other Supreme Court decisions, Tenth Circuit precedent established in Udall, and Eighth Circuit precedent established in Rice. The analysis on which the holdings are based, moreover, cannot withstand scrutiny. At the heart of the ETSI decisions is the courts' conclusion that the railroad obtained a lesser interest in the right-of-way granted by Section 2 of the Act, which conveyed the right-ofway only, than in the right-of-way granted by Section 3, which included the conveyance of adjacent property. If that conclusion were correct, then the Supreme Court cases that hold that the railroads obtained fee title to the right-of-ways under the Act would necessarily involve only odd-numbered sections, that is, those to which Section 3 applies. The right-of-way at issue in Townsend, however, was adjacent to land in an even-numbered section. 190 U.S. at 269. Further, in New Mexico, the Court held that the railroad owned its right-of-way in fee in an entire county. 172 U.S. at 171. In Roberts, the Court held that the railroad owned fee simple absolute title in the right-of-way, under the Act of July 26, 1866, 14 Stat. 270. It conveyed oddnumbered sections to the railroad. The property at issue was in section 16. Roberts, 152 U.S. at 114. Udall involved right-of-way granted under the Act of July 1, 1862 in school sections. School sections are sections 16 and 36. Udall, 379 F.2d at 637; see 26 Stat. 222. In Rice, the court considered patents for 160 acre tracts of land in section 8. Rice, 479 F.2d at 58.

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The Court is bound to follow the decisions of the United States Supreme Court and not the contradictory decision in ETSI-10. Currier v. Doran, 242 F.3d 905, 912 (10th Cir. 2001). The court also is bound by Udall. That decision is "binding circuit precedent . . . absent en banc reconsideration or a superceding contrary decision by the Supreme Court." Haynes v. Williams, 88 F.3d 898, 900 n. 4 (10th Cir. 1996). Thus, to resolve the intra-circuit conflict created by ETSI-10, a court in the Tenth Circuit "should follow earlier, settled precedent over a subsequent deviation therefrom." Id. That principle is illustrated by City of Atoka and Early, which were decided after ETSI-10. In each case, the Tenth Circuit held that provisions of federal land grant acts that are substantively the same as Section 2 of the Act, granted fee simple absolute title to the railroad. City of Atoka, 2001 WL 273298, *3-5; Early, 641 F.2d at 860. 3. Plaintiff has not Shown that he Owns an Interest in the Right-of-Way.

Under Townsend and its progeny, in order to show that the predecessor of any class member obtained an interest in a pre-1872 federal land grant Right-of-Way, plaintiff would have to prove, on an individual basis, that (1) the land that is subject to the pertinent portion of the Right-of-Ways was taken out of the public domain prior to the federal land grant or (2) the railroad conveyed that interest to the predecessor after the grant. Plaintiff has attempted to demonstrate his ownership of an interest in the Right-of-Way adjacent to his property by submitting a Certificate of Homestead and a Land Patent from the United States. Nothing on the face of these documents or in any other material that plaintiff has submitted connects them to land that he owns. The Certificate of Homestead, moreover, is dated August 8, 1913. Plaintiff's Appendix, Ex. W. The Land Patent is dated February 13, 1914. Id. Therefore, even if plaintiff could demonstrate that the patentee was plaintiff's predecessor-intitle, he would not be able to establish that he has any interest in the Right-of-Way. The land that

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is subject to the Right-of-Way was taken out of the public domain years before the issuance of the Certificate of Homestead or the Land Patent. Because the railroad obtained fee title to the Right-of-Way before plaintiff's predecessor acquired any interest in the adjoining land, to show that he has any interest in the Right-of-Way, plaintiff would have to prove that the railroad granted it to his predecessor-in-title, after 1862. The abstract plaintiff has produced includes no deed from the railroad. It does however include multiple agricultural leases of the Right-of-Way from the railroad to plaintiff's predecessors, including plaintiff's parents. Loos Depo. Ex. 3 (Ex.18). Plaintiff's parents executed a lease while plaintiff and his brother were the fee simple owners of the property. Loos. Depo Ex. 4. The leases reflect the recognition by plaintiff's predecessors that the railroad owns fee title to the Right-of-Way. They provide further that they are "subject to all outstanding superior rights, including those in favor of telegraph and telephone companies" and that they are "subject to the right of [the railroad] to grant such licenses and easements to third persons as it in its sole discretion shall deem to be necessary, convenient, or appropriate." Loos Depo. Ex. 3 at 2. The fact that plaintiff has not been able and apparently will not be able to demonstrate that even he owns an interest in the Right-of-Way illustrates that it would be impossible to manage such proof for thousands of putative class members. B. Determination of the Railroads' Interest in Private Conveyance Right-ofWays.

Where the railroad derives its interest in a right-of-way through private conveyance, "[t]o evaluate the railroad's property interest, the Court must review each deed or other instrument, the governing state law at the time of the original conveyance and the facts and circumstances of the transaction." Swisher v. United States, 189 F.R.D. 638, 641 (D. Kan. 1999). This review entails

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"a close examination of the conveying instruments, read in light of the common law and statutes of [the state] then in effect." Preseault v. United States, 100 F.3d 1525, 1534 (Fed. Cir. 1996). Under Colorado law, every estate in land conveyed to another is presumed to be a fee simple estate. Farmers, Reservoir & Irrigation Co. v. Sun Production Co., 721 P.2d 1198, 1200 (Colo. Ct. App. 1986). Ambiguities in a deed are construed in favor of the grantee. Id. at 11991200. The presumption of fee simple conveyance, however, is rebuttable where "a lesser estate is . . . specified by express words." Id. at 1200; see also Colo. Rev. Stat. § 38-30-107. In order to determine whether the presumption of fee simple conveyance is rebutted, in the context of a deed to a railroad, a court must determine "the intention of the parties as shown by the whole instrument, taken in connection with the railroad company's charter or governing statutes." Radetsky v. Jorgensen, 202 P. 175, 176 (Colo. 1921) (quoting 33 Cyc. 167); see also Lincoln Savings and Loan Ass'n v. Colorado, 768 P.2d 733, 735 (Colo. Ct. App. 1988) (railroad deed construction based upon "an examination of the entire instrument"). A deed that conveys a lot, parcel, or strip of land indicates an intention to convey fee simple title. Radetsky, 202 P. at 176. This is so even where other portions of the deed indicate that the land was acquired for a railroad right-of-way. Id., 70 Colo. at 429, 202 P. at 177 (Teller, J. dissenting). A granting clause that conveys a right-of-way over, across, or upon certain land indicates an intention to create an easement. Lincoln, 768 P.2d at 735. There are, however, many other factors that are considered. For example, in Farmers Reservoir, the court weighed the following factors: (i) the premises were described as a strip of land, indicating fee, (ii) the strip of land was described as "through, upon, over and across" the grantor's land, indicating an easement, (iii) the ingress and egress clause purported to grant a right-of-way over land appurtenant to the described premises as well as over the described land itself, indicating an

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easement, (iv) the right of ingress and egress was given "to and from said land," indicating a fee, (v) the stated purpose in one deed was "to construct a ditch," indicating an easement, (vi) the consideration in one deed was stated to be "full compensation for all damages which may be awarded in a condemnation action," indicating an easement, (vii) one deed stated that part of the consideration was given as compensation for "damages to the residue," indicating an easement, (viii) the instrument was designated a warranty deed, indicating a fee, (ix) "the language `upon, over and across' . . . is coupled with the word `land' rather than the word `ground,' coupled with the terms `right-of-way'," indicating a fee, (x) the conveyances were to the grantee and "its successors and assigns forever," indicating a fee, (xi) the legal description in each deed was sufficiently definite to warrant the conclusion that a fee simple interest had been conveyed, and (xii) the grantee's articles of incorporation indicated that it had specific authority to acquire ownership of a fee simple interest in realty. Farmers Reservoir, 721 P.2d at 1200-1201. Under Colorado law, moreover, the Court is "to consider `all the circumstances' surrounding the servitude's creation to ascertain the meaning of the servitude's language." Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1236-37 (Colo. 1998) (quoting Restatement (Third) of Property § 4.1 cmt. d). All circumstances must be considered first, in determining whether there is any ambiguity and second, "as a useful starting point in the court's determination of the actual intention of the parties." Id. at 1236. Thus, to show that the predecessor in interest of any class member conveyed less than fee title in a parcel of the Right-of-Ways, plaintiff would have to produce the pertinent deed, provide evidence of all surrounding circumstances, demonstrate that that the deed includes "express words" reflecting an intention to convey less than fee, show that the surrounding circumstances

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do not introduce any ambiguity, and prove which parcel of the Right-of-Ways is affected by the deed. C. Determination of Who Owns Any Interest the Railroad Doesn't.

If plaintiff were able to demonstrate that the railroad does not own fee title to any parcel of the Right-of-Ways, he would next be required to show who does own the fee. Colorado courts look to the specific language of a deed to determine whether the grantor intended to convey any interest that he or she owned in a railroad right-of-way that abuts or bisects the property that is the subject of the deed. Barnes v. Winford, 833 P.2d 756, 758 (Colo. Ct. App. 1992); Lincoln Savings, 768 P.2d at 735-36. In Lincoln Savings, for example, the court held that patents that conveyed property "less One and 96/100 (1.96) acres deducted for Right-of-Way No. 540" and "less One and 44/100 (1.44) acres contained in Right-of-Way No. 540" excluded from the transfers the fee title underlying a right-of-way easement. Here, the Right-of-Ways were created more than 140 years ago. The thousands of parcels abutting the Right-of-Ways have been conveyed many times since. In order to determine who owns an interest in any parcel of the Right-of-Ways not held by the railroad, it would be necessary to examine each deed and every chain of title to ascertain the intent of the grantor. D. Passage of Time Defenses.

A three year limitations period applies to plaintiffs' claims for unjust enrichment. Luttgen v. Fischer, 107 P.3d 1152, 1157 (Colo. Ct. at 2005). The period of limitations applicable to plaintiffs' trespass claims is two years. Colo. Rev. Stat. § 13-80-102. "Where the alleged trespass arises in connection with construction of permanent improvements, the right of action accrues, and the statute of limitations begins to run, upon the completion of those improvements." Shockley v. Public Service Co. of Colorado, 525 P.2d 1183, 1184 (Colo. Ct. App. 1974). In Shockley, therefore, the court rejected plaintiffs' argument that the encroachment 14

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of a county road on plaintiff's property was a continuing trespass based on "the continual use by these defendants of the completed roadway." Id. Under Colorado law, moreover, intangible invasions of real property are actionable as trespass only upon proof of specific physical damage. Public Service Co. of Colorado v. Van Wyk, 27 P.3d 377, 391 (Colo. 2001); see also Cook v. Rockwell International Corp., 273 F. Supp. 2d 1175, 1200-01 (D. Colo. 2003). Therefore, plaintiff would not be able to establish that the passage of light through the fiber optic cable gives rise to serial causes of action, even if Shockley had not made clear that a permanent encroachment does not give rise to a continuing trespass though it is in continuous use. See In re WorldCom, Inc., 328 B.R. 35, 50-54 (Bankr. S.D.N.Y. 2005) (under Georgia law, light signals do not give rise to legally cognizable damages and a single cause of action therefore accrues on installation of fiber optic cable); In re WorldCom, Inc., 320 B.R. 772 (S.D.N.Y. 2005) (same result under Oregon, Kansas and Alabama law). Plaintiffs commenced this action on December 15, 2000. Thus, as to each putative class member whose claim is based upon Fiber Optic Cable that was installed prior to December 15, 1998, plaintiff would have the burden to prove that the statute of limitations was tolled. Sandoval v. Archdiocese of Denver, 8 P.3d 598, 604-05 (Colo. Ct. App. 2000). This would require proof, on an individual basis, that the putative class member did not discover, or in the exercise of reasonable diligence could not have discovered, the existence of facts forming the basis of a claim. Id. at 604; see also Harrison v. Pinnacol Assurance, 107 P.3d 969, 972 (Colo. Ct. App. 2004) (discovery rule involves inquiry into when plaintiff knew or should have discovered "the essential facts, rather than the applicable legal theory"). The Fiber Optic Cables were installed beginning in the mid-1980s.

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Plaintiff has testified that one of the three telecom defendants sent him a letter, before installing Fiber Optic Cable, to inform him that it might be doing so. Loos Depo. at 70. He doesn't remember when or which telecom, didn't respond to the letter, and no longer has it. Id. at 101-04, 115-16. He also testified that there is at least one sign that marks the presence of the Fiber Optic Cable in the Right-of-Way but that he has never read it or asked his farm tenant whose sign it is or what it says. Id. at 100-01. Plaintiff, therefore, will be unable to prove that the statute of limitations was tolled for his own claims. His difficulty in marshalling proof on the discovery tolling rule, even for himself, illustrates that such evidence cannot be gatherer and submitted on a class-wide basis. E. Time of Acquisition.

Under Colorado law, to maintain a trespass action, plaintiff must have had actual or constructive possession of the subject property at the date of the alleged trespass. Hugunin v. McCunniff, 2 Colo. 367, 369-70, 1874 W.L. 192 * 2 (Colo. Terr. 1874); Sullivan v. Clements, 1 Colo. 261, 262 (1871 W.L. 160 * 1) (Colo. Terr. 1871). In the nearly twenty years since installation of the Fiber Optic Cables commenced, many parcels of property adjacent to the Right-of-Ways have changed hands, in some instances multiple times. Plaintiff's burden to show that each class member has standing to bring a trespass action, therefore, would present another complex individual issue. F. Damages.

The primary measure of damages in a trespass action is the difference in market value of the land before and after the trespass. Frankfort Oil Co. v. Abrams, 413 P.2d 190, 196 (1966); Schweizer, slip op. at 18. Other damages, however, are available, if necessary to compensate plaintiff for any actual loss sustained. Colorado Bridge & Construction Co., 224 P. 222, 223 (1924); Schweizer, slip op. at 18. Plaintiff may recover any costs of restoration, damages for 16

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loss of use, and damages for discomfort and annoyance. Webster v. Boone, 982 P.2d 1183, 1185 (Colo. Ct. App. 2000). A plaintiff who can prove no actual damage resulting from a trespass is entitled to nominal damages only. Crawford v. French, 633 P.2d 524, 527 (Colo. 1981). Plaintiff has testified that he may have lost crop yield in the Right-of-Way as a result of the installation of the Fiber Optic Cable, but he doesn't know for sure. Loos Depo. at 117-18. He testified further that he believes that the value of his property has been diminished by the presence of the Fiber Optic Cable, but that he has taken no steps to assess that diminution. Id. at 119-21. Again, plaintiff's difficulty in proving even his own damages illustrates that he cannot manage such proof for the putative class. This analysis demonstrates that the claims of plaintiff and putative class members present a large number of complex individual issues. Those issues have led federal courts to conclude that a class may not be certified for litigation purposes. The Court should follow those decisions. II. CLASS CERTIFICATION STANDARDS. Fed. R. Civ. P. 23(a) sets forth four prerequisites to a class action. They are: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of a class, and (4) the representative parties will fairly and adequately protect the interests of the class. The "court's first inquiry is whether the plaintiff can show the existence of the four threshold requirements of Rule 23(a)." Shook, 386 F.3d at 971. A putative class also must qualify under one of the three provisions of Fed. R. Civ. P. 23(b). In addition, plaintiff must show that the putative class is readily ascertainable. Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970). This "requires that the class be defined `in objective terms that are capable of present ascertainment.'" McGuire v. Internat'l Paper Co., 1994 WL 261360 * 3 (S.D. Miss. 1994) (quoting Manual for Complex Litigation 2d

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§ 30.14 at 213 (1985)). Plaintiff has the burden of proof on each requirement of Rule 23. Shook, 386 F.3d at 968; Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002). Here, plaintiff cannot meet his burden to show that the putative class is identifiable without litigation on the merits or that the requirements of typicality, adequacy of representation, predominance, or superiority have been met. III. THE COURT MAY NOT CERTIFY A CLASS WHOSE MEMBERS CAN BE IDENTIFIED ONLY BY LITIGATING WHO OWNS WHAT INTERESTS IN THE RIGHT-OF-WAYS. "It is elementary that in order to maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable." DeBremaecker, 433 F.2d at 734. Class definition "is of critical importance because it identifies the persons (1) entitled to relief, (2) bound by a final judgment, and (3) entitled to notice in a Rule 23(b)(3) action." Nudell, 2002 WL 1543725 *1 (quoting Manual for Complex Litigation 3d at 217 (1995); see also In re Monumental Life Ins. Co., 365 F.3d 408, 413 (5th Cir. 2004); McHan v. Grandbouche, 99 F.R.D. 260, 265 (D. Kan. 1983). The class must not be defined in a manner that requires the court to make decisions on the merits before class members are identified, provided with notice, and given an opportunity to opt out of the class. Premier Elec. Constr. Co. v. NECA, Inc., 814 F.2d 358, 362 (7th Cir. 1987). Otherwise, putative class members may engage in "one-way intervention," a practice the 1966 revision to Rule 23 was designed to eliminate. Id. A class whose members can only be identified by merits-based determinations is a "fail-safe class," which may not be certified. Isaacs, 261 F.3d at 681-82. The Complaint defines the class to include persons who own property that "is or was subject to a railroad right-of-way easement in which fiber optic cable was installed." Complaint, ¶ 15. Plaintiff asserts further that "the class is defined as including the persons and entities with the title superior to that of the railroads crossing their property." Memorandum in Support at 2818

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29. No class member can be identified, therefore, without first determining who owns the fee interest in each parcel of the Right-of-Way. See Hallaba, 196 F.R.D. at 636 (defendants "placed cable on property owned by Plaintiffs only if the Court first determines that the railroad owned an easement, and not a fee"); Smith, slip op. at 6 (same); Chambers, slip op. at 11 (identifying the appropriate person to whom any compensation should be paid "depends, among other things, on the type of interest the railroad owns in the right-of-way and whether the adjoining landowner owns any interest superior to the railroad's"). Calhoun involved a putative class that, like the class plaintiff defines here, excluded persons who own property adjoining a parcel of right-of-way that the railroad owns in fee. The court stated: It is impossible to tell at this point who those persons are. The identity of the class, therefore, depends on a prior determination of who the landowners are and of the nature of their rights vis a vis the railroad. This in turn depends not only on the construction and interpretation of their ownership documents, but also on construction and interpretation of any servitude or other grant of rights. Calhoun, slip op. at 4. The court concluded, therefore, that "the determination of the class in this case would require in large part a determination of many of the primary issues on the merits." Id. at 5-6. In Johnson, the court first considered motions for summary judgment that were based upon defendants' contentions that certain named plaintiffs did not own an interest in the right-ofway. After an extensive analysis of source documents, survey plats, and the location of fiber optic cable, the court dismissed the claims of certain plaintiffs and retained those of others. Turning to class certification, the court stated: Here, it has become manifest from the court's consideration of the summary judgment motions that there are an abundance of individualized issues involved in determining the nature of the interest owned by the railroad in each parcel of land comprising the railroad corridor in question and ascertaining who owns any interest in the corridor not owned by the railroad in fee. These determinations 19

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alone ­ which go in the first instance only to the question of whether a particular person even qualifies for class membership ­ would require individualized review of thousands of title documents containing differing and diverse conveyance language that would have to be analyzed according to the specific language used and applicable case law to ascertain the intention of the parties to the conveyances and the legal effect of the instruments. Johnson, 224 F.R.D. at 389 (emphasis supplied). Plaintiff's class definition also excludes those who have consented to or were paid for the installation. Complaint, ¶ 15. Therefore, in order to ascertain class membership, the court would be required to determine whether each putative class member consented to the installation of the Fiber Optic Cables. As the Schweizer court stated, in concluding that the issue of consent added to the predominance of individual issues: If after conducting such title search and examination for each such class member, the Court still finds that the class members' consent was required, the Court will next need to determine whether the landowner has in any way consented to the installation of Level 3's fiber optic network. Schweizer, slip op. at 18. Here, consent would have to be determined to identify class members. Therefore, the "merits of the case must be resolved in order to determine class membership." Chambers, slip op. at 12. The merits based determination of who owns each parcel of the Right-of-Ways and who consented to installation would necessarily precede identification and notification of class members. The putative class defined by plaintiff is therefore a fail-safe class that permits one-way intervention. Premier Elec., 814 F.2d at 362. To certify a class defined in that manner is not appropriate. Isaacs, 261 F.3d at 682; Nudell, 2002 WL 1543725, *3 ("notice to class members is a virtual impossibility . . . since they cannot be identified); Chambers, slip op. at 12; Gipson, 81 P.3d at 72 (proposed class was fail-safe because it would require "a merits trial of each individual's claim to class membership").

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IV.

CERTIFICATION UNDER RULE 23(B)(3) IS INAPPROPRIATE BECAUSE INDIVIDUAL ISSUES PREDOMINATE OVER ANY COMMON QUESTIONS. A means to test the predominance issue is through analysis of "whether the addition or

subtraction of any of the plaintiffs to or from the class will have a substantial effect on the substance or quantity of evidence offered." Alabama v. Blue Bird Body Co., 573 F.2d 309, 322 (5th Cir. 1978). The test also requires consideration of "how a trial on the merits would be conducted if a class were certified." Bell Atlantic Corp. v. AT&T, 339 F.3d 294, 302 (5th Cir. 2003). Here, the addition or subtraction of any of the thousands of putative class members would substantially change the evidence to be offered on class member identification and ownership of property, passage of time defenses, and damages. Those issues, moreover would turn a trial on the merits of class claims into a "nightmare." Isaacs, 261 F.3d at 682; Schweizer, slip op. at 20. A. Individual Issues Pertaining to the Railroad's Interests in the Right-ofWays Predominate.

Plaintiff's claims would require analysis of individual patents, deeds from pre-land grant patentees, deeds from railroads to class members' predecessors, deeds from class members' predecessors to railroads, and other railroad source documents to determine what interests are now owned by the railroads in each parcel of the Right-of-Ways. This would entail "an

inherently factual inquiry that requires a careful review of not only the deed, but also, in many instances, the surrounding circumstances." Hallaba, 196 F.R.D. at 640; Smith, slip op. at 14-15. "This highly individualized inquiry would not promote economies of time, effort and expense but instead would require the Court to conduct thousands of mini-trials." Chambers, slip op. at 22-23.

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Case 1:01-cv-00075-EWN-PAC

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Page 29 of 57

Courts have concluded consistently that the highly individualized inquiries required to determine the railroads' interests in the right-of-ways predominate over any common issues. For example, the Ostler court held that individual issues predominate because: Any individual plaintiff's proof would need to start with evidence of the plaintiff's own title and with evidence of the creation of the relevant right-of-way for the public road. The evidence of each item will be specific to a single property or to a small group of properties. There is no way to avoid such individualized proof in establishing any liability on the part of Level 3. Ostler, slip op. at 21. In Hebert, the court concluded that individual issues pertaining to ownership of the rightof-way predominated, in part because of the variety of railroad source documents. The court stated: Whether these agreements conveyed sufficient rights to the railroads to allow the railroads to grant a valid servitude to defendants will be subject to contention. Resolution of this issue will likely require consideration of the intent of the parties originally, and, where the language is ambiguous, the consideration of parol evidence with regard to individual agreements.