Free Answer to Complaint - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Case No. 01-cv-00075-EWN-PAC ORIN LOOS, Plaintiff, v. LEVEL 3 COMMUNICATIONS, LLC, et al. Defendants. ______________________________________________________________________________ ANSWER OF DEFENDANTS SPRINT NEXTEL CORPORATION AND SPRINT COMMUNICATIONS COMPANY L.P. TO PLAINTIFF'S FIRST AMENDED COMPLAINT ______________________________________________________________________________ For their Answer to the claims asserted by plaintiff Orin Loos in his Amended Complaint, defendants Sprint Nextel Corporation, f/k/a Sprint Corporation, and Communications Company L.P. (collectively the "Sprint Defendants") state as follows: 1. The Sprint Defendants deny every allegation not specifically admitted herein. SUMMARY OF THE CASE 2. The Sprint Defendants admit that Sprint Communications Company L.P. and its Sprint

predecessors have installed and maintained a fiber optic telecommunications network in the United States, including in Colorado, admit that some of the fiber optic cable is located in buried conduits, and deny each and every other allegation contained in Paragraph 1 as they relate to the Sprint Defendants. The Sprint Defendants are without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraph 1 and therefore deny the same.

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3.

The Sprint Defendants admit that Sprint Communications Company L.P. or its

predecessors reached agreements with Union Pacific railroad and other railroads who own the right-of-ways in which fiber optic cable was installed and that those railroads have received and continue to receive compensation for the rights they granted and deny each and every other allegation contained in Paragraph 2 as they relate to the Sprint Defendants. The Sprint

Defendants are without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraph 2 and therefore deny the same. 4. 5. The Sprint Defendants deny the allegations of Paragraphs 3 and 4. The Sprint Defendants deny the allegations of Paragraph 5 as it relates to the

Sprint Defendants. The Sprint Defendants are without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraph 5, and therefore deny the same. 6. The Sprint Defendants deny the allegations of Paragraph 6. THE PARTIES 7. The Sprint Defendants admit that plaintiff sought to represent a class of persons

whom they allege are similarly situated, are without sufficient knowledge or information to form a belief as to the truth of the allegations concerning plaintiff's residence and therefore deny the same, and deny each and every other allegation contained in Paragraph 7. 8. The Sprint Defendants are without sufficient knowledge and information to form

a belief as to the truth of the allegations of Paragraphs 8, 9, and 11 and therefore deny the same. 9. In response to Paragraph 10, the Sprint Defendants state that, when this action

was commenced, Sprint Nextel Corporation was called Sprint Corporation, that Sprint

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Corporation was and Sprint Nextel Corporation is a Kansas corporation, and that its principal place of business was in Overland Park Kansas and now is in Reston, Virginia. The Sprint Defendants deny each and every other allegation of Paragraph 10. 10. The Sprint Defendants admit the allegations of Paragraph 10a. JURISDICTION AND VENUE 11. The Sprint Defendants admit that this Court has jurisdiction over the subject

matter of this action, under 28 U.S.C. § 1331, admit that Sprint Communications Company L.P. is transacting business and owns, uses, or possesses real property in Colorado, deny all other allegations of Paragraph 12 that pertain to the Sprint Defendants, and are without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraph 12 and therefore deny the same. 12. In response to Paragraph 13, the Sprint Defendants deny that plaintiff has

sustained any damages for which the Sprint Defendants are liable and state that, under 28 U.S.C. § 1331, there are no jurisdictional limits related to damages. 13. In response to Paragraph 14, the Sprint Defendants admit that venue is proper in

this Court, under 28 U.S.C. § 1391(b)(2), because the property that is the subject of the action is situated in this judicial district. CLASS ACTION REQUIREMENTS 14. In response to Paragraph 15, the Sprint Defendants admit that plaintiff sought to

maintain this action as a class action and deny that this action can be properly maintained as a class action.

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15.

In response to Paragraph 16, the Sprint Defendants admit that plaintiff has made

no claim for personal injury on behalf of himself or the putative class and deny each and every other allegation of Paragraph 15. 16. The Sprint Defendants deny that they have committed any trespass and are

without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraph 17 and therefore deny the same. 17. 23. GENERAL ALLEGATIONS 18. The Sprint Defendants deny the allegations of Paragraph 24 as they relate to the The Sprint Defendants deny the allegations of Paragraphs 18, 19, 20, 21, 22, and

Sprint Defendants. The Sprint Defendants are without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraph 24 and therefore deny the same. 19. The Sprint Defendants admit that Sprint Communications Company L.P. or its

predecessors constructed a fiber optic telecommunications network in the United States, including in the State of Colorado, deny each and every other allegation contained in Paragraph 25 that relates to the Sprint Defendants, and are without sufficient knowledge or information to form a belief as to the truth of the remaining allegations of Paragraph 25 and therefore deny the same. 20. The Sprint Defendants admit that Sprint Communications Company L.P. or its

predecessors contacted the persons who had the right to permit the installation of fiber optic cable and negotiated contracts with them for those rights and that the persons who granted those

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rights received compensation, deny each and every other allegation of Paragraph 26 that relates to the Sprint Defendants, and are without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraph 26 and therefore deny the same. 21. The Sprint Defendants admit that they did not contract with plaintiff or other

persons, including members of the putative class, who had no right to permit the installation of fiber optic cable on the property where it was installed, admit that Sprint Communications Company L.P. or its predecessors entered into an agreement with Union Pacific Railroad to install fiber optic cable in the railroad right-of-way that traverses plaintiff's property, deny each and every other allegation contained in Paragraph 27 that relates to the Sprint Defendants, and are without sufficient knowledge or information to form a belief as to the truth of the remaining allegations of Paragraph 27 and therefore deny the same. 22. The Sprint Defendants admit that they were to pay, have paid, and continue to pay

money to and otherwise compensate Union Pacific and other railroads for the right to use the right-of-ways that the railroads own, deny each and every other allegation contained in Paragraph 28 that relates to the Sprint Defendants, and are without sufficient knowledge or information to form a belief as to the truth of the remaining allegations of Paragraph 28 and therefore deny the same. 23. 24. The Sprint Defendants deny the allegations of Paragraphs 29 and 30. The Sprint Defendants admit that plaintiff did not give Sprint Communications

Company L.P. or its predecessors express permission to enter upon or to lay, operate, or maintain fiber optic cable on the right-of-way that Union Pacific owns, deny that Sprint Communications

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Company L.P. or its predecessors entered upon the land of plaintiff or laid, operated, or maintained fiber optic cable on that land, and are without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraph 31 and therefore deny the same. 25. 26. The Sprint Defendants deny the allegations of Paragraph 32. The Sprint Defendants deny that they entered upon or laid, operated, or

maintained fiber optic cable upon the land of plaintiff or any putative class member, and are without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraphs 30, 31, and 32 and therefore deny the same. FIRST CLAIM FOR RELIEF - TRESPASS 27. For their response to Paragraph 33, the Sprint Defendants incorporate by

reference and restate their answers to Paragraphs 1 through 32 of plaintiff's Amended Complaint. 28. The Sprint Defendants deny the allegations of Paragraphs 34, 35, 36, 37, 38, and The Sprint Defendants are without sufficient

39 as they relate to the Sprint Defendants.

knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraphs 34, 35, 36, 37, 38, and 39 and therefore deny the same. SECOND CLAIM FOR RELIEF - UNJUST ENRICHMENT 29. For their response to Paragraph 40, the Sprint Defendants incorporate by

reference and restate their answers to Paragraphs 1 through 39 of plaintiff's Amended Complaint.

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30.

The Sprint Defendants deny the allegations contained in Paragraphs 41, 42, and The Sprint Defendants are without sufficient

43 as they relate to the Sprint Defendants.

knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraphs 41, 42, and 43 and therefore deny the same. THIRD CLAIM FOR RELIEF - INJUNCTIVE RELIEF 31. For their response to Paragraph 44, the Sprint Defendants incorporate by

reference and restate their answers to Paragraphs 1 through 43 of plaintiff's Amended Complaint. 32. The Sprint Defendants deny that they have taken any action that affects real

property owned by plaintiff or any member of the putative class and are without sufficient knowledge or information to form a belief as to the truth of each and every other allegation contained in Paragraph 45 and therefore deny the same. 33. 34. The Sprint Defendants deny the allegations contained in Paragraph 46. The Sprint Defendants deny that plaintiff is entitled to any of the relief prayed for

in Paragraph 47. PRAYER FOR RELIEF 35. The Sprint Defendants deny that plaintiff is entitled to any of the relief prayed for. AFFIRMATIVE DEFENSES 1. granted. 2. The Court has no jurisdiction over the person of Sprint Nextel Corporation. Plaintiff's Amended Complaint fails to state a claim upon which relief can be

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3.

All or part of the claims of plaintiff are barred by the applicable statute of

limitations, by the applicable statute of response, by prescription, and/or by adverse possession. 4. All or part of the claims of plaintiff are barred by periods of limitation provided in

railroad charters or other statutes by which the railroads acquired property. 5. All or part of the claims of plaintiff are barred by the doctrine of laches, waiver

and estoppel, and/or unclean hands. 6. 7. 8. Plaintiff failed to mitigate his damages. The claims of plaintiff are preempted by federal law. Plaintiff's request for relief should be denied pursuant to the doctrine of accord

and satisfaction. 9. claims. 10. 11. 12. 13. Plaintiff acquiesced in, consented to, and/or ratified defendants' actions. Plaintiff's claims are barred by collateral estoppel and/or res judicata. Plaintiff's claims are barred by the doctrine of apportionment. The imposition of punitive damages would violate the Constitutions of the United Plaintiff has no standing and/or is not the real party in interest to prosecute these

States and the State of Colorado, including those provisions protecting against the deprivation of property without due process and those protecting against cruel and unusual punishment. JURY DEMAND The Sprint Defendants requests a trial by jury on all issues so triable herein.

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WHEREFORE, The Sprint Defendants pray that this Court dismiss this action or enter judgment in the Sprint Defendants' favor, and that the Court award the Sprint Defendants their costs and all other relief at law or in equity to which it may be justly entitled. Dated: January 10, 2005 Respectfully submitted,

_/s Jonathon D. Bergman Jonathon D. Bergman DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 FAX (303) 893-1379 E-mail: [email protected]

J. Emmett Logan STINSON MORRISON HECKER LLP 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 Telephone: (816) 842-8600 FAX (816) 691-3495 ATTORNEYS FOR DEFENDANT SPRINT NEXTEL CORPORATION AND SPRINT COMMUNICATIONS COMPANY L.P.

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CERTIFICATE OF SERVICE I hereby certify that on 10th day of January, 2006, I electronically filed the foregoing ANSWER OF DEFENDANTS SPRINT NEXTEL CORPORATION AND SPRINT COMMUNICATIONS COMPANY L.P. TO PLAINTIFF'S FIRST AMENDED COMPLAINT with the clerk of Court using the CM-ECF system which will send notification of such filing to the following e-mail addresses: Charles W. Lilley Moses Garcia LILLEY & GARCIA LLP 1600 Stout Street, Suite 1100 Denver, CO 80202 [email protected] Irwin B. Levin Scott D. Gilchrist COHEN & MALAD, P.C. 136 N. Delaware Street, Suite 300 P.O. Box 627 Indianapolis, IN 46206-0627 [email protected] Samuel D. Heins HEINS, MILLS & OLSON, P.L.C. 700 Northstar East 608 Second Avenue South Minneapolis, MN 55402 [email protected] Marc D. Callipari Level 3 Communications 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, NE 68102-2663 [email protected]

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Daniel Warden Bond & Morris 303 17th Avenue, #888 Denver, CO 80203 [email protected] J. Kevin Hayes Pamela S. Anderson HALL, ESTILL, HARDWICK, GABLE GOLDEN & NELSON, P.C. 320 South Boston #400 Tulsa, OK 74103 [email protected] Steven E. Napper Union Pacific Railroad Company 1331 17th Street, #406 Denver, CO 80202 [email protected] Gregory T. Wolf Ron Bodinson SHOOK, HARDY & BACON L.L.P. 84 Corporate Woods 10801 Mastin, Suite 1000 Overland Park, KS 66210-1669 [email protected] [email protected] [email protected]

_/s Jonathon D. Bergman Jonathon D. Bergman DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 FAX (303) 893-1379 E-mail: [email protected]

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