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

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

Document 114

Filed 01/09/2006

Page 1 of 12

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 other similarly situated, Plaintiff, vs. LEVEL 3 COMMUNICATIONS, LLC, WILTEL COMMUNICATIONS, LLC f/k/a WILLIAMS COMMUNICATIONS, INC., SPRINT NEXTEL CORPORATION f/k/a SPRINT CORPORATION, SPRINT COMMUNICATIONS CORPORATION, L.P., and UNION PACIFIC RAILROAD COMPANY, Defendants. ______________________________________________________________________________ UNION PACIFIC RAILROAD COMPANY'S ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL AND JOINDER OF DEFENDANT ______________________________________________________________________________ COMES NOW Defendant Union Pacific Railroad Company ("Union Pacific") and, for its Answer to the Amended Class Action Complaint and Demand for Jury Trial and Joinder of Defendant, states as follows: SUMMARY OF THE CASE 1. Union Pacific is without knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 1 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 2. Union Pacific admits that Level 3 Communications, LLC, Williams

Communications, Inc., and Sprint Corporation ("co-Defendants") installed fiber optic cable beneath certain Union Pacific right-of-way in Colorado. Union Pacific is without knowledge or information sufficient to form a belief as to whether its right-of-way in Colorado is adjacent to

262295v1

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

Document 114

Filed 01/09/2006

Page 2 of 12

Plaintiff's or putative class members' land. Finally, Union Pacific admits that it reached separate agreements with co-Defendants that permitted co-Defendants to install fiber optic cable on certain Union Pacific right-of-way in Colorado. Union Pacific denies the remaining allegations in Paragraph 2 of Plaintiff's Amended Class Action Complaint. 3. Union Pacific denies the allegations is Paragraph 3 of Plaintiff's Amended

Class Action Complaint. 4. Union Pacific denies the allegations in Paragraph 4 of Plaintiff's Amended

Class Action Complaint. 5. Union Pacific admits that it has been compensated by co-Defendants for

the right to lay fiber optic cable on certain Union Pacific right-of-way in Colorado. Union Pacific denies the remaining allegations in Paragraph 5 of Plaintiff's Amended Class Action Complaint. 6. Union Pacific denies the allegations in Paragraph 6 in Plaintiff's Amended

Class Action Complaint. THE PARTIES 7. Union Pacific is without knowledge or information sufficient to form a

belief concerning Plaintiff's ownership and, therefore, denies the same. Union Pacific denies the remaining allegations in Paragraph 7 of Plaintiff's Amended Class Action Complaint. 8. Union Pacific is without knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 8 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 9. Union Pacific admits that it is a Delaware corporation with its principal Union Pacific admits that it utilizes fiber optic

place of business in Omaha, Nebraska.

262295v1

2

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

Document 114

Filed 01/09/2006

Page 3 of 12

technology to communicate with its trains, enhance safety, and operate its railroad switches, among other railroad uses. Union Pacific denies the remaining allegations in Paragraph 9 of Plaintiff's Amended Class Action Complaint. 10. Union Pacific is without knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 10 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 11. Union Pacific is without knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 11 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. JURISDICTION AND VENUE 12. Union Pacific admits that the United States District Court for the District

of Colorado has jurisdiction over Union Pacific for the purposes of this lawsuit. Union Pacific is without knowledge or information sufficient to form a belief as to whether the United States District Court for the District of Colorado has jurisdiction over co-Defendants. Union Pacific

denies the remaining allegations in Paragraph 12 of Plaintiff's Amended Class Action Complaint. 13. Union Pacific is without knowledge or information sufficient to form a

belief as to the existence and/or level of each putative Plaintiff's alleged damages and, therefore, denies the same. Union Pacific denies the remaining allegations in Paragraph 13 of Plaintiff's Amended Class Action Complaint. 14. Union Pacific is without knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 14 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same.

262295v1

3

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

Document 114

Filed 01/09/2006

Page 4 of 12

CLASS ACTION REQUIREMENTS 15. Union Pacific admits that named Plaintiff seeks to represent a class.

Union Pacific denies the remaining allegations in Paragraph 15 of Plaintiff's Amended Class Action Complaint. 16. Union Pacific admits that Plaintiff's Amended Class Action Complaint

does not seek damages for personal injury. Union Pacific denies the remaining allegations in Paragraph 16 of Plaintiff's Amended Class Action Complaint. 17. Union Pacific denies the allegations in Paragraph 17 of Plaintiff's

Amended Class Action Complaint. 18. Union Pacific denies the allegations in Paragraph 18 of Plaintiff's

Amended Class Action Complaint. 19. Union Pacific denies the allegations in Paragraph 19 of Plaintiff's

Amended Class Action Complaint. 20. Union Pacific is without knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 20 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 21. Union Pacific denies the allegations in Paragraph 21 of Plaintiff's

Amended Class Action Complaint. 22. Union Pacific denies the allegations in Paragraph 22 of Plaintiff's

Amended Class Action Complaint. 23. Union Pacific is without knowledge or information sufficient to form a

belief concerning what Plaintiff anticipates. Union Pacific denies the remaining allegations in Paragraph 23 of Plaintiff's Amended Class Action Complaint.

262295v1

4

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

Document 114

Filed 01/09/2006

Page 5 of 12

GENERAL ALLEGATIONS 24. Union Pacific is without knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 24 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 25. Union Pacific is without knowledge or information sufficient to form a

belief as to the truth of the allegations in Paragraph 25 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 26. Union Pacific denies that co-Defendants had no legal right to enter Union

Pacific right-of-way in Colorado. Union Pacific is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 26 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 27. Union Pacific admits that co-Defendants and it entered into agreements

that permitted co-Defendants to install, operate, and maintain fiber optic cable under certain Union Pacific right-of-way in Colorado. Union Pacific is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 27 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 28. Union Pacific admits that co-Defendants compensated it for the right to

lay fiber optic cable on certain Union Pacific right-of-way in Colorado. Union Pacific denies the remaining allegations in Paragraph 28 of Plaintiff's Amended Class Action Complaint. 29. Union Pacific denies the allegations in Paragraph 29 of Plaintiff's

Amended Class Action Complaint. 30. Union Pacific denies that co-Defendants were required to inform and/or

seek permission from Plaintiff and/or putative class members to enter, lay, operate, or maintain

262295v1

5

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

Document 114

Filed 01/09/2006

Page 6 of 12

fiber optic cable on Union Pacific right-of-way in Colorado as alleged in Paragraph 30 of Plaintiff's Amended Class Action Complaint. Union Pacific is without knowledge or

information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 30 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 31. Union Pacific denies that co-Defendants and/or it required permission

from Plaintiff and/or putative class members as alleged in Paragraph 31 of Plaintiff's Amended Class Action Complaint. Union Pacific is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 31 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 32. Union Pacific denies the allegations in Paragraph 32 of Plaintiff's

Amended Class Action Complaint. FIRST CLAIM FOR RELIEF -- TRESPASS 33. Union Pacific hereby incorporates by reference its responses contained in

Paragraphs 1 through 32 of its Answer as if fully set forth herein. Union Pacific denies the allegations in Paragraph 33 of Plaintiff's Amended Class Action Complaint. 34. Union Pacific denies the allegations in Paragraph 34 of Plaintiff's

Amended Class Action Complaint. 35. Union Pacific admits that it reached separate agreements with co-

Defendants that permitted co-Defendants to install fiber optic cable on certain Union Pacific right-of-way in Colorado. Union Pacific further admits that co-Defendants compensated it for the right to lay fiber optic cable on certain Union Pacific right-of-way in Colorado. Union Pacific denies the remaining allegations in Paragraph 35 of Plaintiff's Amended Class Action Complaint.

262295v1

6

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

Document 114

Filed 01/09/2006

Page 7 of 12

36.

Union Pacific denies the allegations in Paragraph 36 of Plaintiff's

Amended Class Action Complaint. 37. Union Pacific admits that co-Defendants compensated it for the right to

lay fiber optic cable on certain Union Pacific right-of-way in Colorado. Union Pacific admits that it has not paid any money to Plaintiff and/or putative class members. Union Pacific denies co-Defendants have trespassed as alleged in Paragraph 37 of Plaintiff's Amended Class Action Complaint. Union Pacific denies that co-Defendants and/or it was required to compensate Plaintiff and/or putative class members as alleged in Paragraph 37 of Plaintiff's Amended Class Action Complaint. Union Pacific is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 37 of Plaintiff's Amended Class Action Complaint and, therefore, denies the same. 38. Union Pacific denies the allegations in Paragraph 38 of Plaintiff's

Amended Class Action Complaint. 39. Union Pacific denies the allegations in Paragraph 39 of Plaintiff's

Amended Class Action Complaint. SECOND CLAIM FOR RELIEF -- UNJUST ENRICHMENT 40. Union Pacific hereby incorporates by reference its responses contained in

Paragraphs 1 through 39 of its Answer as if fully set forth herein. Union Pacific denies the allegations in Paragraph 40 of Plaintiff's Amended Class Action Complaint. 41. Union Pacific denies the allegations in Paragraph 41 of Plaintiff's

Amended Class Action Complaint. 42. Union Pacific denies the allegations in Paragraph 42 of Plaintiff's

Amended Class Action Complaint.

262295v1

7

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

Document 114

Filed 01/09/2006

Page 8 of 12

43.

Union Pacific denies the allegations in Paragraph 43 of Plaintiff's

Amended Class Action Complaint. THIRD CLAIM FOR RELIEF -- INJUNCTIVE RELIEF 44. Union Pacific hereby incorporates by reference its responses contained in

Paragraphs 1 through 43 of its Answer as if fully set forth herein. Union Pacific denies the allegations in Paragraph 44 of Plaintiff's Amended Class Action Complaint. 45. Union Pacific denies the allegations in Paragraph 45 of Plaintiff's

Amended Class Action Complaint. 46. Union Pacific denies the allegations in Paragraph 46 of Plaintiff's

Amended Class Action Complaint. 47. Union Pacific denies the allegations in Paragraph 47 of Plaintiff's

Amended Class Action Complaint. 48. In response to Plaintiff's "Prayer for Relief," Union Pacific denies that

Plaintiff is entitled to any relief. 49. All allegations not expressly admitted are hereby denied. AFFIRMATIVE DEFENSES 1. Plaintiff's Amended Class Action Complaint fails to state a claim upon

which relief can be granted. 2. Prescription. 3. Adverse 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 All or part of the claims that Plaintiff asserts are barred by the Doctrine of

statute(s) of limitations.
262295v1

8

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

Document 114

Filed 01/09/2006

Page 9 of 12

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 Union Pacific and its predecessors acquired property. 6. Waiver. 7. Estoppel. 8. Laches. 9. All or part of the claims that Plaintiff asserts should be denied based on All or part of the claims that Plaintiff asserts are barred by the Doctrine of All or part of the claims that Plaintiff asserts are barred by the Doctrine of All or part of the claims that Plaintiff asserts are barred by the Doctrine of

the Doctrine of Accord and Satisfaction. 10. license. 11. release. 12. payment. 13. All or part of the claims that Plaintiff asserts should be denied based on All or part of the claims that Plaintiff asserts should be denied based on All or part of the claims that Plaintiff asserts should be denied based on All or part of the claims that Plaintiff asserts should be denied based on

the Doctrines of Res Judicata, Collateral Estoppel, and Law of the Case. 14. 15. 16. All or part of Plaintiff's claims are pre-empted by federal law. Plaintiff failed to mitigate his damages. Plaintiff comes before the Court with unclean hands.

262295v1

9

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

Document 114

Filed 01/09/2006

Page 10 of 12

17.

In all respects pertinent to this action, Union Pacific has acted within its

rights and has engaged in uses of its property interests that are permitted. 18. Domain. 19. 20. 21. action. 22. Plaintiff may not be an adequate representative of the proposed class and 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 All or part of Plaintiff's claims should be denied on grounds of Eminent

may not be a real party in interest. 23. 24. 25. 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. JURY DEMAND Union Pacific requests a trial by jury on all issues so triable herein.

By: ____/s/_Ron Bodinson_________ Ron Bodinson, KS #08139 Bill J. Hays, KS #15314 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 Joseph Rebein, MO Bar #35071 Gregory T. Wolf, KS Bar #17372 SHOOK, HARDY & BACON L.L.P. 2555 Grand Boulevard 10

262295v1

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

Document 114

Filed 01/09/2006

Page 11 of 12

Kansas City, Missouri 64108 816/474-6550 FAX: 816/421-5547 ATTORNEYS FOR DEFENDANT UNION PACIFIC RAILROAD COMPANY CERTIFICATE OF SERVICE I hereby certify that on January 9, 2006, I electronically filed Union Pacific Railroad Company's Answer to Plaintiff's Amended Class Action Complaint and Demand for Jury Trial and Joinder of Defendant with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following counsel via their email addresses. Karen Cody-Hopkins Charles W. Lilley Lilley & Garcia, LLP 1600 Stout Street, Suite 1100 Denver, CO 80202 [email protected] Samuel D. Heins Heins, Mills & Olson, P.L.C. 550 IDS Center 80 South 8th Street Minneapolis, MN 55402 [email protected] Joseph E. Jones Mark C. Laughlin Fraser, Stryker, Meusey, Olson, Boyer & Bloch 409 South 17th Street Omaha, NE 68102 [email protected] Jonathon D. Bergman Davis, Graham & Stubbs LLP 1550 17th Street, Suite 500 Denver, CO 80202 [email protected] Irwin B. Levin Scott D. Gilchrist Cohen & Malad, P.C. One Indiana Square, Suite 1400 Indianapolis, Indiana 46206-0627 [email protected] Daniel Warden Bond & Morris 303 17th Avenue, #888 Denver, CO 80203 [email protected]

J. Kevin Hayes Pam Anderson Hall, Estill, Hardwick, Gable, Golden & Nelson 320 South Boston, #400 Tulsa, OK 74103 [email protected] J. Emmett Logan Stinson Morrison & Hecker 1201 Walnut St., Suite 2500 Kansas City, MO 64106 [email protected]

262295v1

11

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

Document 114

Filed 01/09/2006

Page 12 of 12

Respectfully submitted, SHOOK, HARDY & BACON L.L.P. By: /s/ Ron Bodinson __________ Ron Bodinson Bill J. Hays 10801 Mastin Blvd, Suite 1000 Overland Park, KS 66210 Telephone: 913/451-6060 Facsimile: 913/451-8879 and Steven E. Napper Union Pacific Railroad Company 1331 17th Street, #406 Denver, CO 80202 Telephone: 303/964-4579 Facsimile: 303/964-4585 ATTORNEYS FOR DEFENDANT UNION PACIFIC RAILROAD COMPANY

262295v1

12