Free Answer to Amended Complaint - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

Civil Action No. 01-S-0075 ­ EWN-PAC ORIN LOOS, individually and on behalf of himself and all others similarly situated, Plaintiff, v. LEVEL 3 COMMUNICATIONS, LLC, WILTEL COMMUNICATIONS, LLC f/k/a WILLIAMS COMMUNICATIONS, SPRINT NEXTEL f/k/a SPRINT CORPORATION, SPRINT COMMUNICATIONS CORPORATION, L.P., and UNION PACIFIC RAILROAD CO., Defendants. ______________________________________________________________________________ ANSWER AND AFFIRMATIVE DEFENSES OF WILTEL COMMUNICATIONS, LLC TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL AND JOINDER OF DEFENDANT ______________________________________________________________________________ Introductory Allegations For its Answer to the Amended Class Action Complaint and Demand for Jury Trial and Joinder of Defendant (the "Amended Complaint") filed by Plaintiff Orin Loos, Defendant WilTel Communications, LLC, formerly known as Williams Communications, LLC, formerly known as Williams Communications, Inc. ("WilTel") respectfully states as follows. Unless expressly admitted herein, each of the allegations contained in the Amended Complaint is specifically denied. Moreover, unless expressly admitted, with respect to the allegations against Level 3 Communications, LLC ("Level 3"), Sprint Nextel Corporation ("Sprint Nextel"), Sprint Communications Corporation, L.P. ("Sprint Communications") and Union Pacific Railroad Co.

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("Union Pacific"), WilTel lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations. Summary of the Case 1. WilTel admits that it owns fiber optic cable which was previously installed in

Colorado. WilTel further admits that this fiber optic cable is buried beneath the surface of the land. WilTel further admits that it and/or related entities own fiber optic cable at various locations throughout the United States. WilTel denies the remainder of the allegations contained in paragraph one, except, with respect to allegations concerning Level 3, Sprint Nextel, Sprint Communications, and/or Union Pacific, WilTel lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 2. WilTel admits that at least some of the fiber optic it owns in Colorado is on Union

Pacific railroad right-of-way, with the permission of Union Pacific. WilTel further admits that it and/or related entities have compensated some companies that own railroad rights-of-way for the use of that right-of-way. WilTel denies the remainder of the allegations contained in paragraph two, except, with respect to allegations concerning Level 3, Sprint Nextel, Sprint Communications, and/or Union Pacific, WilTel lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action.

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3.

WilTel denies the allegations contained in paragraph three. To the extent Plaintiff

makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 4. 5. WilTel denies the allegations contained in paragraph four. WilTel denies the allegations contained in paragraph five. To the extent Plaintiff

makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 6. WilTel denies the allegations contained in paragraph six. To the extent Plaintiff

makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. The Parties 7. 8. WilTel denies the allegations contained in paragraph 7. WilTel lacks knowledge or information sufficient to form a belief as to the truth

or falsity of the allegations contained in paragraph eight. 9. WilTel lacks knowledge or information sufficient to form a belief as to the truth

or falsity of the allegations contained in paragraph nine. 10. WilTel lacks knowledge or information sufficient to form a belief as to the truth

or falsity of the allegations contained in paragraph ten. 10a. WilTel lacks knowledge or information sufficient to form a belief as to the truth

or falsity of the allegations contained in paragraph eleven. 11. WilTel denies that it is a corporation organized and existing under the laws of the

State of Delaware. WilTel is a limited liability company. WilTel admits that its principal place of business is in Tulsa, Oklahoma. WilTel further admits that it owns fiber optic cable which -3-

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was previously installed in Colorado. WilTel denies the remainder of the allegations contained in paragraph eleven. Jurisdiction and Venue 12. WilTel denies that Plaintiff has been damaged. WilTel denies the allegations

contained in paragraph twelve. 13. 14. WilTel denies the allegations contained in paragraph thirteen. WilTel admits that venue in Weld County, Colorado is appropriate pursuant

Defendants' January 12, 2001, removal of the lawsuit to the United States District Court for Colorado. WilTel admits that venue is proper in the United States District Court for Colorado. WilTel lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph fourteen that "the Plaintiff and a significant number of Class members own property in Weld County, Colorado." To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. Class Action Requirements 15. WilTel denies that the allegations contained in the Amended Complaint support

class certification pursuant to Fed. R. Civ. P. 23. WilTel further specifically denies that the putative class identified in paragraph fifteen of the Amended Complaint can properly support certification of this action as a class action lawsuit under Fed. R. Civ. P. 23. To the extent that the allegations contained in paragraph fifteen of the Amended Complaint are inconsistent with or not addressed by the foregoing, then WilTel denies the same. WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action.

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16.

WilTel admits that the action seeks recovery for alleged economic losses;

however, WilTel specifically denies that such economic losses have occurred. WilTel denies the remainder of the allegations contained in paragraph sixteen. WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 17. WilTel lacks knowledge or information sufficient to form a belief as to the truth

or falsity of the alleged numerosity of the putative class. WilTel denies the remainder of the allegations contained in paragraph seventeen, except, with respect to the allegations concerning Level 3, Sprint Nextel, Sprint Communications, and/or Union Pacific, WilTel lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations. WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 18. WilTel denies the allegations contained in paragraph eighteen. WilTel further

states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 19. WilTel denies the allegations contained in paragraph nineteen. WilTel further

states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 20. WilTel denies the allegations contained in paragraph twenty. WilTel further states

that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 21. WilTel denies the allegations contained in paragraph twenty-one. WilTel further

states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action.

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22.

WilTel denies the allegations contained in paragraph twenty-two. WilTel further

states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 23. WilTel denies the allegations contained in paragraph twenty-three. WilTel further

states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. General Allegations 24. WilTel admits that it owns fiber optic cable which was previously installed in

Colorado. WilTel further admits that it and/or related entities own fiber optic cable in various locations throughout the United States. WilTel denies the remainder of the allegations contained in paragraph twenty-four. 25. WilTel admits that it and/or related entities own fiber optic cable in various

locations throughout the United States. WilTel denies the remainder of the allegations contained in paragraph twenty-five, except, with respect to allegations concerning Level 3, Sprint Nextel, Sprint Communications, and/or Union Pacific, WilTel lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations. 26. WilTel lacks knowledge or information sufficient to form a belief as to the truth

or falsity of the allegations with respect to the conduct of "certain companies." WilTel denies the remainder of the allegations contained in paragraph twenty-six. 27. WilTel admits that some of its fiber optic cable in Colorado is on railroad right-

of-way, with the permission of the railroad company. WilTel further admits that it and/or related entities own fiber optic cable in various locations throughout the United States. WilTel denies the remainder of the allegations contained in paragraph twenty-seven, except, with respect to -6-

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Level 3, Sprint Nextel, Sprint Communications, and/or Union Pacific, WilTel lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 28. WilTel admits that it and/or related entities have compensated some companies

that own railroad rights-of-way for the use of that right-of-way. WilTel denies the remainder of the allegations contained in paragraph twenty-eight, except, with respect to allegations concerning Level 3, Sprint Nextel, Sprint Communications, and/or Union Pacific, WilTel lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations. 29. 30. WilTel denies the allegations contained in paragraph twenty-nine. WilTel denies the allegations contained in paragraph thirty. To the extent Plaintiff

makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 31. WilTel denies the allegations contained in paragraph thirty-one. To the extent

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 32. WilTel denies the allegations contained in paragraph thirty-two. To the extent

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. First Claim for Relief ­ Trespass 33. Answer. WilTel incorporates by reference paragraphs one through thirty-two of this

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34.

WilTel denies the allegations contained in paragraph thirty-four, except, with

respect to allegations concerning Level 3, Sprint Nextel, Sprint Communications, and/or Union Pacific, WilTel lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 35. WilTel admits that some of its fiber optic cable in Colorado is on railroad right-

of-way, with the permission of the railroad company. WilTel further admits that it and/or related entities have compensated some companies that own railroad rights-of-way for the use of that right-of-way. WilTel denies the remainder of the allegations contained in paragraph thirty-five, except, with respect to allegations concerning Level 3, Sprint Nextel, Sprint Communications, and/or Union Pacific, Williams lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 36. WilTel denies the allegations contained in paragraph thirty-six. To the extent

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 37. WilTel denies the allegations contained in paragraph thirty-seven. To the extent

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action.

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38.

WilTel denies the allegations contained in paragraph thirty-eight. To the extent

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 39. WilTel denies the allegations contained in paragraph thirty-nine. To the extent

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. Second Claim for Relief ­ Unjust Enrichment 40. Answer. 41. WilTel denies the allegations contained in paragraph forty-one. To the extent WilTel incorporates by reference paragraphs one through thirty-nine of this

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 42. WilTel denies the allegations contained in paragraph forty-two. To the extent

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 43. WilTel denies the allegations contained in paragraph forty-three. To the extent

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. Third Claim for Relief ­ Injunctive Relief 44. Answer. 45. WilTel denies that Plaintiff is the owner of real property affected by Defendants' WilTel incorporates by reference paragraphs one through forty-three of this

actions. WilTel lacks knowledge or information sufficient to form a belief as to the truth or -9-

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falsity of the allegation that "the Class are owners of real property affected by Defendants' actions." WilTel denies the remainder of the allegations contained in paragraph forty-five. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 46. WilTel denies the allegations contained in paragraph forty-six. To the extent

Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 47. WilTel denies the Plaintiff's request contained in paragraph forty-seven is

appropriate or authorized under any applicable law. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. Prayer for Relief 1. WilTel denies that Plaintiff's request contained in paragraph one of the Prayer for

Relief is appropriate or authorized under any applicable law. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 2. WilTel denies that Plaintiffs' request contained in paragraph two of the Prayer for

Relief is appropriate or authorized under any applicable law. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 3. WilTel denies that Plaintiff's request contained in paragraph three of the Prayer

for Relief is appropriate or authorized under any applicable law. To the extent Plaintiff makes

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allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 4. WilTel denies that Plaintiffs' request contained in paragraph four of the Prayer for

Relief is appropriate or authorized under any applicable law. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. 5. WilTel denies that Plaintiffs' request contained in paragraph five of the Prayer for

Relief is appropriate or authorized under any applicable law. To the extent Plaintiff makes allegations regarding alleged Class members, WilTel further states that on November 10, 2005, the Court ruled that this case cannot be certified as a class action. Jury Demand WilTel denies that Plaintiff is entitled to a trial by jury on all claims asserted in the Amended Complaint. Affirmative Defenses 1. granted. 2. prescription. 3. possession. 4. All or part of the claims that Plaintiff asserts are barred by the applicable All or part of the claims that Plaintiff asserts are barred by the doctrine of adverse All or part of the claims that Plaintiff asserts are barred by the doctrine of Plaintiff's Amended Complaint fails to state a claim upon which relief can be

statute(s) of limitations.

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5.

All or part of the claims that Plaintiff asserts are barred by periods of limitations

provided in railroad charters or other statutes pursuant to which WilTel and its predecessors acquired property. 6. 7. 8. 9. All or part of the claims that Plaintiff asserts are barred by the doctrine of waiver. All or part of the claims that Plaintiff asserts are barred by the doctrine of estoppel. All or part of the claims that Plaintiff asserts are barred by the doctrine of laches. All or part of the claims that Plaintiff asserts should be denied based on the

doctrine of accord and satisfaction. 10. 11. 12. 13. All or part of the claims that Plaintiff asserts should be denied based on license. All or part of the claims that Plaintiff asserts should be denied based on release. All or part of the claims that Plaintiff asserts should be denied based on payment. All or part of the claims that Plaintiff asserts should be denied based on the

doctrines of res judicata and collateral estoppel. 14. 15. 16. 17. All or part of Plaintiff's claims are preempted by federal law. Plaintiff failed to mitigate his damages. Plaintiff comes before the Court with unclean hands. In all respects pertinent to this action, WilTel has acted within its rights and has

engaged in uses of its property interests that are permitted. 18. 19. 20. 21. All or part of Plaintiff's claims should be denied on grounds of eminent domain. All or part of Plaintiff's claims violate statutes or principles of repose. Plaintiff consented to or ratified some or all of Defendants' actions. This action is not maintainable as and should not be maintained as a class action.

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22.

Plaintiff is not an adequate representative of the proposed class and is not a real

party in interest. 23. 24. 25. 26. The Court has already ruled that this case cannot be maintained as a class action. Plaintiff's claims are barred by acquiescence. Plaintiff has no standing to bring this action. Plaintiff's claims are barred by the doctrine of apportionment.

WHEREFORE, WilTel prays that Plaintiff take nothing by way of the Complaint, that this action be dismissed, that WilTel be awarded its reasonable costs and attorneys' fees incurred in defending this action, and that WilTel be awarded such additional and further relief as the Court deems just and proper.

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Respectfully submitted, BOND & MORRIS, P.C. By: _/s/ Daniel F. Warden_____________ Daniel F. Warden 303 17th Avenue, #888 Denver, Colorado 80203 Telephone: (303) 837-9222 Facsimile: (303) 837-0849 [email protected] -andJ. Kevin Hayes, OBA #4003 Pamela S. Anderson, OBA #11613 HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C. 320 S. Boston, Suite 400 Tulsa, Oklahoma 74103-3708 Telephone: (918) 594-0400 Facsimile: (918) 594-0505 [email protected] [email protected] ATTORNEYS FOR DEFENDANT WILTEL COMMUNICATIONS, LLC

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CERTIFICATE OF SERVICE I hereby certify that on January 10, 2006, I electronically filed WilTel Communications, LLC's Answer to Plaintiff's Amended Class Action Complaint and Demand for Jury Trial and Joinder of Defendant with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following counsel: Charles W. Lilley Moses Garcia Karen Cody-Hopkins Lilley & Garcia LLP 1600 Stout Street, Suite 1100 Denver, Colorado 80202 [email protected] Ira B. Levin Scott D. Gilchrist Cohen & Malad, P.C. 136 N. Delaware Street, Suite 300 P.O. Box 627 Indianapolis, Indiana 46206-0627 Samuel D. Heins Kent M. Williams Renae D. Steiner Heins Mills & Olson, P.L.C. 700 Northstar East 608 Second Avenue South Minneapolis, Minnesota 55402 Jonathon D. Bergman Davis Graham & Stubbs LLP 1550 17th Street, Suite 500 Denver, Colorado 80202 [email protected] Steven E. Napper Union Pacific Railroad Company 1331 Seventeenth Street, Suite 406 Denver, Colorado 80202-1566 [email protected]

Ron Bodinson Gregory T. Wolf Joseph Michael Rebein Shook, Hardy & Bacon, L.L.P. 84 Corporate Woods 10801 Mastin, Suite 1000 Overland Park, Kansas 66210-1669 [email protected] [email protected] [email protected] J. Emmett Logan A. Bradley Bodamer Morrison & Hecker 2600 Grand Avenue Kansas City, Missouri 64108 [email protected] Nancy L. Shelledy Sprint Corporation 8140 Ward Parkway Kansas City, Missouri 64114 Joseph E. Jones Fraser, Stryker, Meusey, Olson, Boyer & Bloch, P.C. 500 Energy Plaza 409 South 17th Street Omaha, Nebraska 68102 [email protected]

___/s/ Daniel F. Warden____________ -15-

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