Free Answer to Complaint - 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-S-0075-EWN-PAC ORIN LOOS, individually on behalf of himself and all others similarly situated, Plaintiff, vs. LEVEL 3 COMMUNICATIONS, LLC, WILTEL COMMUNICATIONS, LLC f/k/a WILTEL COMMUNICATION, INC., SPRINT NEXTELCORPORATION f/k/a SPRINT CORPORATION, SPRINT COMMUNICATIONS CORPORATION, L.P. and UNION PACIFIC RAILROAD COMPANY, Defendants. ________________________________________________________________________

LEVEL 3 COMMUNICATIONS, LLC'S ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT COMES NOW Defendant Level 3 Communications, LLC ("Level 3"), and for its Answer to Plaintiff's Amended Class Action Complaint states and alleges as follows: 1. Level 3 admits that it is a company engaged in the installation and

maintenance of fiber optic telecommunications systems in locations throughout the United States, including the State of Colorado. Level 3 further admits that the fiber optic cable is located in conduits buried beneath the surface of the land. Level 3 is without sufficient i formation to form a belief as to the truth of the allegations contained in n Paragraph 1 as those allegations relate to the other Defendants. Level 3 denies the remaining allegations of Paragraph 1. 2. Level 3 admits that it installed fiber optic cable beneath certain Union

Pacific Railroad Company ("Union Pacific") rights-of-way in Colorado and paid

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compensation to Union Pacific. Level 3 is without knowledge or information sufficient to form a belief as to whether Union Pacific's right-of-way in Colorado are adjacent to Plaintiff's or punitive class members' land and, therefore, denies the same. Level 3 denies the remaining allegations contained in Paragraph 2. 3. 4. 5. 6. 7. Level 3 denies the allegations contained in Paragraph 3. Level 3 denies the allegations contained in Paragraph 4. Level 3 denies the allegations contained in Paragraph 5. Level 3 denies the allegations contained in Paragraph 6. Level 3 admits that Plaintiff purports to bring this action on his own behalf

and as the representative of a class of similarly situated persons. Level 3 is without knowledge or information sufficient to form a belief concerning the remaining allegations of Paragraph 7 and, therefore, denies the same. 8. Level 3 admits that it is a Delaware limited liability company with its

principal place of business in Broomfield, Colorado. Level 3 also admits that it owns and operates telecommunications equipment and provides telecommunications and related services. Level 3 denies the remaining allegations contained in Paragraph 8. 9. Level 3 is without knowledge or information sufficient to form a belief as

to the truth of the allegations contained in Paragraph 9 and, therefore, denies the same. 10. Level 3 is without knowledge or information sufficient to form a belief as

to the truth of the allegations contained in Paragraph 10 and, therefore, denies the same. 10a. Level 3 is without knowledge or information sufficient to form a belief as

to the truth of the allegations contained in paragraph 10a and, therefore, denies the same.

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11.

Level 3 is without knowledge or information sufficient to form a belief as

to the truth of the allegations contained in Paragraph 11 and, therefore, denies the same. 12. Level 3 admits that the United States District Court for the District of

Colorado has jurisdiction over Level 3 for the purposes of this lawsuit. Level 3 is without sufficient knowledge or information sufficient to form a belief as to whether the United States District Court for the District of Colorado has jurisdiction over coDefendants and, therefore, denies the same. Level 3 denies the remaining allegations contained in Paragraph 12. 13. 14. Level 3 denies the allegations contained in Paragraph 13. Level 3 is without knowledge or information sufficient to form a belief as

to the truth of the allegations contained in Paragraph 14 and, therefore, denies the same. 15. Level 3 admits that Plaintiff purports to bring this matter as a class action

but denies the remaining allegations of Paragraph 15. 16. Level 3 admits that Plaintiff's Amended Complaint does not seek damages

for personal injury but denies the remaining allegations contained in Paragraph 16. 17. 18. 19. 20. Level 3 denies the allegations contained in Paragraph 17. Level 3 denies the allegations contained in Paragraph 18. Level 3 denies the allegations contained in Paragraph 19. Level 3 is without knowledge or information sufficient to form a belief as

to the truth of the allegations contained in Paragraph 20 and, therefore, denies the same. 21. 22. Level 3 denies the allegations contained in Paragraph 21. Level 3 denies the allegations contained in Paragraph 22.

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23.

Level 3 is without knowledge or informatio n sufficient to form a belief as

to the truth of the allegations contained in Paragraph 23 and, therefore, denies the same. 24. Level 3 admits generally that it is constructing a nationwide fiber optic

network but is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 24 and, therefore, denies the same. 25. Level 3 admits that it has constructed portions of its network in the State

of Colorado but denies the remaining allegations contained in Paragraph 25. 26. Level 3 is without knowledge or information sufficient to form a belief as

to the truth of the allegations of Paragraph 26 and, therefore, denies the same. 27. Level 3 admits that it entered into an agreement with Union Pacific to lay,

operate and maintain cables under Union Pacific's right-of-way. Level 3 is without knowledge or information sufficient to form belief as to the truth of whether or not the right-of-way easements are on the land of the Plaintiff and other class members and, therefore, denies the same. Level 3 denies the remaining allegations of Paragraph 27. 28. Level 3 admits that it compensated Union Pacific for the right to lay its

fiber optic cable on certain Union Pacific rights-of-way in Colorado. Level 3 denies the remaining allegations contained in Paragraph 28. 29. 30. Level 3 denies the allegations contained in Paragraph 29. Level 3 is without knowledge or information sufficient to form a belief as

to the truth of the allegations of Paragraph 30 and, therefore, denies the same. 31. Level 3 is without knowledge or information sufficient to form a belief as

to the truth of the allegations of Paragraph 31 and, therefore, denies the same. 32. Level 3 denies the allegations contained in Paragraph 32.

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33.

Level 3 hereby incorporates by reference its answers to Paragraphs 1-32 of

its Answer as if fully set forth herein. 34. 35. 36. 37. 38. 39. 40. Level 3 denies the allegations contained in Paragraph 34. Level 3 denies the allegations contained in Paragraph 35. Level 3 denies the allegations contained in Paragraph 36. Level 3 denies the allegations contained in Paragraph 37. Level 3 denies the allegations contained in Paragraph 38. Level 3 denies the allegations contained in Paragraph 39. Level 3 hereby incorporates by reference its responses contained in

Paragraphs 1-39 of its Answer as if fully set forth herein. 41. 42. 43. 44. Level 3 denies the allegations contained in Paragraph 41. Level 3 denies the allegations contained in Paragraph 42. Level 3 denies the allegations contained in Paragraph 43. Level 3 hereby incorporates by reference its responses contained in

Paragraphs 1-43 of its Answer as if fully set forth herein. 45. Level 3 is without knowledge or information sufficient as to whether

Plaintiff and the class are owners of real property affected by Defendant's actions and, therefore, denies the same. Paragraph 45. 46. 47. 48. Level 3 denies the allegations contained in Paragraph 46. Level 3 denies the allegations contained in Paragraph 47. In response to Plaintiff's "Prayer For Relief," Level 3 denies that Plaintiff Level 3 denies the remaining allegations contained in

is entitled to any relief.

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49.

All allegations not expressly admitted herein are denied. AFFIRMATIVE DEFENSES

1. granted. 2.

The Amended Complaint fails to state any claim upon which relief can be

Plaintiff's purported class action fails to meet the requirements of Federal

and Colorado Rule of Civil Procedure 23. 3. Preemption. 4. of limitations. 5. Plaintiff's claims are barred, in whole or in part, by periods of limitations Plaintiff's claims are barred, in whole or in part, by the applicable statutes Plaintiff's claims are barred, in whole or in part, by the Doctrine of Federal

provided in railroad charters or other statutes pursuant to which Union Pacific and its predecessors acquired property. 6. Laches. 7. Estoppel. 8. Waiver. 9. Plaintiff's claims are barred, in whole or in part, by the Doctrine of Plaintiff's claims are barred, in whole or in part, by the Doctrine of Plaintiff's claims are barred, in whole or in part, by the Doctrine of Plaintiff's claims are barred, in whole or in part, by the Doctrine of

Unclean Hands. 10. Plaintiff's claims are barred, in whole or in part, because Plaintiffs lack

standing to bring this action.

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11.

Plaintiff's claims are barred, in whole or in part, by the Doctrine of

Adverse Possession. 12. Prescription. 13. Plaintiff's claims are barred, in whole or in part, by accord and Plaintiff's claims are barred, in whole or in part, by the Doctrine of

satisfaction, payment, and/or release. 14. Plaintiff's claims are barred, in whole or in part, because Plaintiffs have

failed to mitigate their damages. JURY DEMAND Level 3 hereby requests a trial by jury. WHEREFORE, Defendant Level 3 Communications, LLC respectfully moves this Court for an order dismissing the Plaintiff's Amended Complaint with prejudice, Level 3 to be awarded its costs, and other just and equitable relief as this Court deems proper.

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RESPECTFULLY SUBMITTED, By: s/Joseph E. Jones 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 -andMarc D. Callipari Level 3 Communications,. LLC 1025 Eldorado Boulevard Broomfield, CO 80021 ATTORNEYS FOR LEVEL 3 COMMUNICATIONS, LLC

CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 10th day of January, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: Charles W. Lilley Moses Garcia Karen Cody Hopkins LILLEY & GARCIA, LLP 1600 Stout Street, Suite 1100 Denver, CO 80202 [email protected] Jonathan D. Bergman DAVIS, GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 (303) 892-9400 [email protected] J. Emmett Logan STINSON MORRISON HECKER LLP 1201 Walnut, Suite 2900

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Kansas City, MO 64106-2150 [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] Daniel Warden Bond & Morris 303 17th Avenue, Suite 888 Denver, CO 80203 danwarden@bond morris.com J. Kevin Hayes Pam Anderson Hall, Estill, Hardwick, Gable, Golden & Nelson 320 South Boston, #400 Tulsa, OK 74100 [email protected] Samuel D. Heins Kent M. WilTel Renae D. Steiner Heins, Mills & Olson, P.L.C. 700 Northstar East 608 Second Avenue South Minneapolis, MN 55402 [email protected] Steven E. Napper Union Pacific Railroad Company 1331 17th Street, #406 Denver, CO 80202 and Ron Bodinson Bill J. Hays 10801 Mastin Blvd., Suite 1000 Overland Park, KS 66210 s/Joseph E. Jones Joseph E. Jones Mark C. Laughlin

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FRASER, STRYKER, MEUSEY, OLSON, BOYER & BLOCH, P.C. 500 Energy Plaza 409 South 17th Street Omaha, Nebraska 68102-2663 (402) 341-6000 E- mail: [email protected]
403317W

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