Free Pretrial Order - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00075-EWN-PAC ORIN LOOS, Plaintiff, v. LEVEL 3 COMMUNICATIONS, LLC WILLIAMS COMMUNICATIONS, INC. SPRINT CORPORATION, and UNION PACIFIC RAILROAD, Defendants ________________________________________________________________________ PRELIMINARY PRETRIAL ORDER _____________________________________________________________________ 1.DATE OF CONFERENCE January 31, 2006. 2.JURISDICTION The Court has jurisdiction under 28 U.S.C. § 1332 because Plaintiff' claims s require determination of who owns what interests in the railroad right of way that traverses Plaintiff' property and the right of way was created by the Federal Land s Grant Act of July 1, 1862, 12 Stat. 489, amended July 2, 1864, 13 Stat. 356, July 3, 1866, 14 Stat. 79, and March 3, 1869, 15 Stat. 324 (the " ). Act" 3. CLAIMS AND DEFENSES

Plaintiff owns land in Weld County, Colorado (the " Loos Property" Defendant ). Union Pacific Railroad Company (" Union Pacific" owns a railroad right of way that ) traverses the Loos Property. Union Pacific entered into contracts with the Defendants Level 3 Communications, LLC, WilTel Communications, LLC, and Sprint Communications Company L.P. or their predecessors to allow them to install fiber optic cable in the Right of Way. Plaintiff contends that, under the Act, the Right of Way is an easement, that the fiber optic cable in the Right of Way exceeds the scope of the

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easement, and that Plaintiff is entitled to compensation for the installation of the fiber optic cable in the Right of Way. Plaintiff has alleged trespass and unjust enrichment and prayed for actual damages, punitive damages, and injunctive relief. Defendants contend that, under the Act, Union Pacific, through its predecessors, owns fee title to the Right of Way, subject only to a limited right of reverter in the event that Union Pacific ceases to use the Right of Way for its railroad, that the limited right of reverter has been retained by the United States, that Plaintiff has no interest in the Right of Way, and that Plaintiff therefore has no viable claim against any Defendant. Defendants contend further that, even if the Act could be interpreted to have conveyed less than fee title in the Right of Way, Union Pacific has sufficient authority to permit a telecommunications utility to use the Right of Way. Further, Defendants contend that if Plaintiff had a viable claim, his damages must be measured by any difference between the value of the Loos Property before the installation of the fiber optic cable and the value of the property after installation and that Plaintiff has sustained no compensable damages. Finally, the Sprint Defendants contend that Plaintiff' claims against them s are barred by the statute of limitations and that Defendant Sprint Nextel Corporation engaged in none of the conduct alleged in the Amended Complaint. 4.PENDING MOTIONS All Defendants filed a Motion for Summary Judgment on January 3, 2006. It is pending. 5. WITNESSES a. List all persons who may be called as witnesses by each party, together with the address and telephone number of each witness, if that information has not already been supplied under Fed. R. Civ. P. 26(a)(1). (1) (2) (3) Plaintiff - see Exhibit A attached hereto. Defendant(s) - see Exhibit B attached hereto. Other Parties - none.

b. The names, addresses, and telephone numbers of any additional non-expert witnesses must be disclosed in writing to opposing counsel within ten (10) days of the date on which they become known or, in the exercise of due diligence, should have become known. See Fed. R. Civ. P. 26(a)(3). Failure to disclose a witness under the terms of this paragraph precludes listing the witness in the Final Pretrial Order, unless the party can show good cause for the omission. 2

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c. Disclosure of Expert Testimony No later than eleven days after entry of this Preliminary Pretrial Order, any party with the burden of proof on an issue shall serve all other parties with a report which shall identify any person whom that party expects to call as an expert witness at trial under Fed. R. Evid. 702. Except as otherwise stated in this paragraph, the report shall contain all the information specified in Fed. R. Civ. P. 26(a)(2)(B). Within eleven days after such service, any other party wishing to call a rebuttal expert shall serve all other parties with a report which shall identify such expert and which, except as otherwise stated in this paragraph, shall contain all the information specified in Fed. R. Civ. P. 26(a)(2)(B). This Preliminary Pretrial Order requires rule 26(a)(2)(B) reports from any person who will provide expert testimony - including, for example, a treating physician except that a treating physician' report need not contain a recitation of compensation s paid to the physician or a list of other cases in which the physician has given testimony. See Fed. R. Civ. P. 26(a)(2) advisory committee' note (" s requirement of written report may be . . . imposed upon additional persons who will provide opinions under [r]ule 702" ). 6.REMAINING DISCOVERY Defendants' responses to Plaintiff' Interrogatories and Requests for Production s of Documents to Defendants Level 3, WilTel, and Sprint are due February 13, 2006. All fact and expert depositions will be scheduled to be completed by February 20, 2006. 7.SETTLEMENT The undersigned counsel for the parties hereby certify that: a. Counsel for the parties have met repeatedly in person and by telephone over a period of several years to discuss the settlement of this and related claims. b. (1) The following persons participated in the settlement conferences: For Plaintiff: Irwin Levin and Scott Gilchrist, counsel for Plaintiff.

(2) For the Sprint Defendants: Emmett Logan, retained counsel, and Nancy Shelledy, in-house counsel. (3) For Defendant Level 3 Communications LLC: Joe Jones, retained counsel, and Chris Yost, in-house counsel. (4) For Defendant WilTel Communications LLC: Kevin Hayes, retained counsel, and Candace Cheeseman and Tom Plake, in-house counsel. 3

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(5) c.

For Defendant Union Pacific: Ron Bodinson, retained counsel. The parties were promptly informed of all offers of settlement.

d. Counsel do not intend to hold future settlement conferences prior to the close of discovery. e. It appears from the discussion by all counsel that there is little possibility of settlement. f. The following specific problems have created a hindrance to settlement of this case: the parties have substantially differing views of the merits of Plaintiff' s claims. g. No settlement conferences have been scheduled before the Magistrate Judge. Counsel are to conference call the Court if they wish to have a settlement conference before trial. 8.SPECIAL ISSUES a. There are no discovery or scheduling issues on which counsel have been unable to reach an agreement. b. There are no other issues the parties believe that the Court may wish to consider prior to the Final Pretrial Conference. 9.TRIAL AND ESTIMATED TRIAL TIME a. Trial is to a jury. The parties estimate that trial will take four days. The situs of the trial is Denver, Colorado. b. Trial is set for March 6, 2006. Subject to other matters on the court' s docket, the trial date and a date for a trial preparation conference will be set by the court at the Final Pretrial Conference heretofore scheduled. Counsel and the parties shall schedule all proceedings in the case so that the case is ready for trial on March 6, 2006. Specifically, counsel and the parties will strictly observe (a) the discovery cutoff date and (b) the dispositive motion date, so that the court will have the opportunity to consider dispositive motions in advance of the Final Pretrial Conference. 10.EFFECT OF PRELIMINARY PRETRIAL ORDER 4

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The Preliminary Pretrial Order may be altered or amended upon a showing of good cause. 11.WAIVER OF PRELIMINARY PRETRIAL CONFERENCE The parties have agreed to waive the Preliminary Pretrial Conference. DATED this 30th day of January, 2006. BY THE COURT: s/Patricia A. Coan Patricia A. Coan United States Magistrate Judge

PRELIMINARY PRETRIAL ORDER TENDERED FOR REVIEW: /s/Charles W. Lilley Charles W. Lilley Lilley & Garcia, LLP 1600 Stout Street, Ste. 1100 Denver, CO 80202 (303) 293-9800 Fax: (303) 298-8975

Irwin B. Levin Scott D. Gilchrist Cohen & Malad, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 (317) 636-6481 Attorneys for Plaintiff /s/Jonathon D. Bergman Jonathon D. Bergman DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 5

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Denver, CO 80202 (303) 892-9400

J. Emmett Logan STINSON MORRISON HECKER LLP 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 (816) 842-8600 Fax: (816) 691-3495 Attorneys for Defendants Sprint Nextel Corporation, f/k/a Sprint Corporation, and Sprint Communications Company L.P. Samuel D. Heins Stacey L. Mills Heins Mills & Olson, P.L.C. 700 Northstar East 608 Second Avenue South Minneapolis, MN 55402 (612) 338-4605 Attorneys for Plaintiff

s/Marc D. Callipari Marc D. Callipari 1025 Eldorado Blvd. Broomfield, CO 80021

Joseph E. Jones Mark C. Laughlin FRASER, STRYKER, MEUSEY, OLSON, BOYER & BLOCH, P.C. 500 Energy Plaza 409 South 17th Street Omaha, Nebraska 68102-2663 (402) 341-6000 Fax: (402) 341-8290

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Attorneys for Defendant Level 3 Communications, Inc.

/s/Daniel F. Warden Daniel F. Warden Bond & Morris 303 17th Avenue, #888 Denver, CO 80203

J. Kevin Hayes Pamela S. Anderson HALL, ESTILL, HARDWICK, GABLE GOLDEN & NELSON, P.C. 320 South Boston #400 Tulsa, OK 74103 (918) 594-0400 Fax: (918) 594-0505 Attorneys for Defendant WilTel Communications, LLC, f/k/a Williams Communications, Inc. /Steven E. Napper Steven E. Napper Union Pacific Railroad Company 1331 17th Street, #406 Denver, CO 80202 Gregory T. Wolf Ron Bodinson SHOOK, HARDY & BACON L.L.P. 84 Corporate Woods 10801 Mastin, Suite 1000 Overland Park, KS 66210-1669 (913) 451-6060 Fax: (913) 451-8879 Attorneys for Defendant Union Pacific Railroad Company

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EXHIBIT A PLAINTIFF' WITNESS LIST S 1. Albert Orin Loos 2218 East 12th Street Cheyenne, WY 82001 (307) 632-1832 Subjects: The allegations of the Plaintiff' Complaint, including without limitation his s acquisition and ownership of the property that is the subject of this action in Weld County, Colorado; the existence and location of Union Pacific' right-of-way crossing s his property; the placement by the Telecommunications Defendants of fiber optic cable and related hardware in the right-of-way crossing his property; any communications he may have had with any Defendant concerning the placement of fiber optic cable and related hardware in the right-of-way; the value of his property; damage to or diminution of value in his property caused by the placement by the Telecommunications Defendants of fiber optic cable and related hardware in the right-of-way crossing his property; the damages, restitution and injunctive relief sought in this action. 2. James E. Ferrell , Director Fiber Optics and Asset Utilization Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179 (402) 544-5000

Subjects: Fiber optic contracts with Level 3 Communications, Williams Communications, and Sprint; negotiations between Union Pacific and Level 3 Communications, Williams Communications, and Sprint prior and leading to entering any contract purporting to permit them to place fiber optic cable and related hardware in Union Pacific' rights-of way; documents, including valuation maps, deeds or other s conveyance instruments, title opinions, deed summaries, or other documents, reviewed by or made available to Level 3 Communications, Williams Communications, and Sprint prior and leading to entering any contract purporting to permit them to place fiber optic cable and related hardware in Union Pacific' rights-of way; the payments, benefits, s capacity or other consideration received by Union Pacific from Level 3 Communications, Williams Communications, and Sprint for the use of Union Pacific' s right-of-ways; the value of any capacity or other in-kind consideration received by Union Pacific from Level 3 Communications, Williams Communications, and Sprint for the use of Union Pacific' right-of-ways; the installation, location and use of fiber optic s 8

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cable and related hardware in the Union Pacific right-of-way crossing the Plaintiff' s Property by Level 3 Communications, Williams Communications, and Sprint. 3. Frank Fillebeck, Sr. Manager-Engineering Services Fiber Optics and Asset Utilization Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179 (402) 544-5000

Subjects: Acquisition of right of way documents and valuation maps; Union Pacific' acquisition of the right-of-way crossing the Plaintiff' property; fiber optic s s contracts with Level 3 Communications, Williams Communications, and Sprint; negotiations between Union Pacific and Level 3 Communications, Williams Communications, and Sprint prior and leading to entering any contract purporting to permit them to place fiber optic cable and related hardware in Union Pacific' rights-of s way; documents, including valuation maps, deeds or other conveyance instruments, title opinions, deed summaries, or other documents, reviewed by or made available to Level 3 Communications, Williams Communications, and Sprint prior and leading to entering any contract purporting to permit them to place fiber optic cable and related hardware in Union Pacific' rights-of way; the payments, benefits, capacity or other s consideration received by Union Pacific from Level 3 Communications, Williams Communications, and Sprint for the use of Union Pacific' right-of-ways; the value of s any capacity or other in-kind consideration received by Union Pacific from Level 3 Communications, Williams Communications, and Sprint for the use of Union Pacific' s right-of-ways; the installation, location and use of fiber optic cable and related hardware in the Union Pacific right-of-way crossing the Plaintiff' Property by Level 3 s Communications, Williams Communications, and Sprint.

4.

Roger Sullivan Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179 (402) 544-5000

Subjects: Railroad uses of fiber optic communications systems; Union Pacific' s acquisition of the right-of-way crossing the Plaintiff' property; fiber optic contracts with s Level 3 Communications, Williams Communications, and Sprint; negotiations between Union Pacific and Level 3 Communications, Williams Communications, and Sprint prior and leading to entering any contract purporting to permit them to place fiber optic cable 9

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and related hardware in Union Pacific' rights-of way; documents, including valuation s maps, deeds or other conveyance instruments, title opinions, deed summaries, or other documents, reviewed by or made available to Level 3 Communications, Williams Communications, and Sprint prior and leading to entering any contract purporting to permit them to place fiber optic cable and related hardware in Union Pacific' rights-of s way; the payments, benefits, capacity or other consideration received by Union Pacific from Level 3 Communications, Williams Communications, and Sprint for the use of Union Pacific' right-of-ways; the value of any capacity or other in-kind consideration s received by Union Pacific from Level 3 Communications, Williams Communications, and Sprint for the use of Union Pacific' right-of-ways; the installation, location and use s of fiber optic cable and related hardware in the Union Pacific right-of-way crossing the Plaintiff' Property by Level 3 Communications, Williams Communications, and Sprint. s

5.

Any witness listed by any other party.

6. All witnesses necessary to establish the admissibility of any documents for which the parties have not stipulated to the requirements (other than relevance) for admissibility. 7. All witnesses necessary for impeachment and rebuttal.

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EXHIBIT B DEFENDANTS' WITNESS LIST James E. Farrell, Director Fiber Optics and Asset Utilization Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179 402/544-5000 Subjects: Fiber optic contracts with Level 3 Communications, WilTel Communications, and Sprint. 2. Frank Fillebeck, Sr. Manager-Engineering Services Fiber Optics and Asset Utilization Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179 402/544-5000 Subjects: Acquisition of right of way documents and valuation maps. Roger Sullivan Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179 402/544-5000 Subjects: Railroad uses of fiber optic communication systems. Tom Ogee Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179 402/544-5000 Subjects: The nature, extent, and requirements of Union Pacific' s right of way. Robert Brenner Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179 402/544-5000 11 1.

3.

4.

5.

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Subjects: 6. Greg Floerke Miami, FL Subjects: 7.

Payment of taxes on railroad right of way.

WilTel' fiber optic contracts with Union Pacific Railroad s

Bob Jackson WilTel Communications, LLC Tulsa, OK c/o J. Kevin Hayes 320 S. Boston Avenue Tulsa, OK 74103 (918) 594-0400 Subjects: WilTel' fiber optic contracts with Union Pacific Railroad s

8.

Bill Harwell WilTel Communications, LLC Tulsa, OK c/o J. Kevin Hayes 320 S. Boston Avenue Tulsa, OK 74103 (918) 594-0400 Subjects: WilTel' fiber installation on Union Pacific Railroad right of way s

9.

Christy Wallace WilTel Communications, LLC Tulsa, OK c/o J. Kevin Hayes 320 S. Boston Avenue Tulsa, OK 74103 (918) 594-0400 Subjects: WilTel' fiber installation on Union Pacific Railroad right of way s

10.

Clinton Gray WilTel Communications, LLC Tulsa, OK c/o J. Kevin Hayes 12

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320 S. Boston Avenue Tulsa, OK 74103 (918) 594-0400 Subjects: 11. WilTel' fiber installation on Union Pacific Railroad right of way s

Michael Nash, expert witness Nash-Johnson Associates, Inc. 4045 South Broadway, Suite 204 Englewood, CO 80110 Subjects: Whether there has been any diminution in value of the property on which Defendants' fiber optic cable has been installed and, if so,

how much. 12. Jim Farris Sprint c/o J. Emmett Logan 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 (816) 842-8600 Subjects: 13. Sprint' fiber optic cable and installation s

Steve Gordon Level 3 Denver, CO c/o Joseph E. Jones 500 Energy Plaza 409 South 17th Street Omaha, NE 68102-2663 (402) 341-6000 Subjects: Contracts with Union Pacific and installation of Level 3 cable on Pacific Railroad right of way

Union

14.

John Scarano Level 3 Denver, CO c/o Joseph E. Jones 13

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500 Energy Plaza 409 South 17th Street Omaha, NE 68102-2663 (402) 341-6000 Subjects: Union Pacific Railroad right of way 15. 16. All witnesses listed by Plaintiff. Witnesses necessary for impeachment and rebuttal. Contracts with Union Pacific and installation of Level 3 cable on

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