Free Amended 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/WILLIAMS COMMUNICATIONS, INC., SPRINT NEXTEL CORPORATION f/k/a SPRINT CORPORATION, SPRINT COMMUNICATIONS CORPORATION, L.P., and UNION PACIFIC RAILROAD COMPANY, Defendants. AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL AND JOINDER OF DEFENDANT

Pursuant to Fed.R.Civ.P. 15 and ¶ 7a of the November 23, 2005 Second Amended Scheduling Order in this matter, Plaintiff Orin Loos (hereinafter "Plaintiff"), on behalf of himself and all others similarly situated, by counsel, amends his Complaint and brings this action against Defendants Level 3 Communications, LLC ("Level 3"), WilTel Communications, LLC fka Williams Communication, Inc. ("WilTel"), Sprint Nextel Corporation fka Sprint Corporation ("Sprint Nextel"), and Union Pacific Railroad Company ("UP") (Level 3, WilTel, Sprint and UP are collectively referred to herein as "Defendants"), now joins Defendant Sprint Communications Corporation, LP ("Sprint CC") (collectively herein with Sprint Nextel Corporation "Sprint"), and hereby alleges and states as follows:

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Summary of the Case 1. Level 3, Sprint, and WilTel (hereinafter collectively referred to as the "Fiber

Optic Companies") are companies engaged in the installation and maintenance of fiber optic telecommunications systems in locations throughout the United States, including in the state of Colorado. The fiber optic cable and related hardware installed by the Fiber Optic Companies is located in conduits buried beneath the surface of the land. In the past few years, the Fiber Optic Companies have endeavored to construct and complete a nationwide fiber optic cable network using a new and improved fiber optic cable. In their efforts to install the cable and related hardware as quickly as possible, the Fiber Optic Companies chose to ignore the property rights of the Plaintiff and other Class members. 2. Without notifying the Plaintiff and the Class, the Fiber Optic Companies reached

agreements with UP and other railroads that own rights-of-way, pursuant to which the Fiber Optic Companies installed cable beneath the rights-of-way of UP and other railroads that pass through and across Colorado. The rights-of-way of UP and other railroads exist on and over the land of the Class members, including land owned by the Plaintiff and Class Members. Pursuant to these agreements, UP and other railroads have received and continue to receive substantial compensation from the Fiber Optic Companies. 3. The rights-of-way of UP and other railroads are surface easements, limited to

railroad purposes only. Only the holders of the fee title - the Plaintiff and the Class - have the exclusive right to use and occupy the property for any non-railroad purpose.

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4.

Thus, the licenses to install fiber optic cable given to the Fiber Optic Companies

by UP and other railroads are for a use of the rights-of-way that is not allowed by law, and which could not be transferred or assigned from the railroads to the Fiber Optic Companies. 5. The Fiber Optic Companies are trespassing on the Plaintiff's and Class members'

land, which trespass was induced and facilitated by Defendant UP's and other railroads' disregard of the legal limitations on the real property interests held by them in the subject properties, by installing, utilizing, or maintaining fiber optic telecommunications cable beneath the railroad right-of-way easements running on and over the Plaintiff's and Class members' land. The trespass by the Fiber Optic Companies is for commercial purposes and has resulted in the generation of substantial revenue for the Fiber Optic Companies and UP. The trespass is present, permanent, and continuing. 6. The Fiber Optic Companies and UP have been unjustly enriched to the extent that

they have received and retained profits and rents as a result of the Fiber Optic Companies' unlawful use and occupation of the land of the Plaintiff and Class, and UP's purported licensing of land it does not own. UP's receipt and retention of revenue generated by the use of the property of the Plaintiff and other Class members' has deprived the Plaintiff and Class members of rents and profits to which they properly are entitled. The Parties 7. Plaintiff Orin Loos is the owner in fee simple of land located within Weld County

in the State of Colorado and upon which the Fiber Optic Companies have entered, excavated, and installed and buried their fiber optic cable beneath the railroad rights-of-way maintained by UP. The Plaintiff brings this action on his own behalf and as the representatives of a class of similarly situated persons, as more particularly described below.

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8.

Level 3 Communications, LLC is a Delaware Limited Liability Company, with its

principal place of business in Broomfield, Colorado. Level 3 Communications, LLC, by itself or through its divisions, subsidiaries, affiliates, joint venture partners, agents or otherwise, owns and operates telecommunications equipment and provides telecommunications and related services throughout the United States, including fiber optic and other telecommunications cable, and is legally responsible for the acts of its subsidiaries, affiliates, joint venture partners, agents, and predecessors in interest that are described in this Complaint. 9. Union Pacific Railroad Company is a Delaware corporation, with its principal

place of business in Omaha, Nebraska. Union Pacific by itself or through its by itself or through its divisions, subsidiaries, affiliates, joint venture partners, agents or otherwise, owns and operates telecommunications equipment and provides telecommunications and related services throughout the United States, including fiber optic and other telecommunications cable, and is legally responsible for the acts of its subsidiaries, affiliates, joint venture partners, agents, and predecessors in interest that are described in this Complaint. 10. Sprint Nextel Corporation ("Sprint Nextel") (collectively herein with Sprint CC

known as "Sprint") is a Kansas (formerly Delaware) Corporation, with its principal places of business now in Reston, Virginia and Topeka, Kansas (formerly in Overland Park, Kansas). Sprint Nextel Corporation, by itself or through its divisions, subsidiaries, affiliates, joint venture partners, agents or otherwise, owns and operates telecommunications equipment and provides telecommunications and related services throughout the United States, including fiber optic and other telecommunications cable, and is legally responsible for the acts of its subsidiaries, affiliates, joint venture partners, agents, and predecessors in interest, including Sprint Corporation, that are described in this Complaint.

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10a.

Sprint Communications Company, L.P. ("Sprint CC") (collectively herein with

Sprint Nextel Corporation known as "Sprint") is a Delaware Limited Partnership, with its principal place of business in Kansas. Its partners are US Telecom, Inc., a Kansas corporation with its principal place of business in Kansas; UCOM, Inc., a Missouri corporation with its principal place of business in Kansas; UTELCOM, Inc., a Kansas corporation with its principal place of business in Kansas; and Sprint International Communications Corporation, a Delaware corporation, with its principal place of business in Virginia. 11. WilTel Communications, Inc. is a Delaware Corporation, with its principal place

of business in Tulsa, Oklahoma. WilTel Communications, Inc., by itself or through its divisions, subsidiaries, affiliates, joint venture partners, agents or otherwise, owns and operates telecommunications equipment and provides telecommunications and related services throughout the United States, including fiber optic and other telecommunications cable, and is legally responsible for the acts of its subsidiaries, affiliates, joint venture partners, agents, and predecessors in interest, including specifically WilTel Communications Procurement, LP, and WilTel Communications Solutions, LLC, that are described in this Complaint. Jurisdiction and Venue 12. This Court has jurisdiction over Defendants Level 3, UP, WilTel, Sprint and UP

pursuant to § 28 USC 1331 and 1332 and because they are transacting business in Colorado, they have committed tortious acts complained of herein in Colorado, and/or they own, use, and/or possess real property in Colorado. 13. The damages which are the subject of this matter are within the jurisdictional

limits of this Court.

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14.

Venue is proper in this Court pursuant to the January 12, 2001 removal to this

Court from Weld County District Court and the January 12, 2001 consent to removal filed by Defendant Level 3 and Colo. R. Civ. P. 98(a) because the Plaintiff and a significant number of Class members own property in Weld County, Colorado, that is the subject of this action, and because all Class members own property in Colorado. Class Action Requirements 15. The Plaintiff brings this action under Fed.R.Civ.P. 23 and Colo. R. Civ. P. 23(a)

and (b)(1), (2) and (3) on behalf of himself and all others similarly situated as members of the following proposed Plaintiff Class ("the Class"): All persons and entities who own property in the State of Colorado that is or was subject to a railroad right of way easement and on which property fiber optic cable or other telecommunications cable of WilTel, Level 3 or Sprint was installed and/or maintained without the consent of the landowner and without the payment of compensation to the landowner. Excluded from the class are the Defendants and their parents, subsidiaries, and affiliates, and all governmental agencies. 16. This action seeks recovery only for economic losses suffered by members of the

Class and expressly is not intended to request any recovery for personal injury. 17. The Class is so numerous that the individual joinder of all members is

impracticable. The land owned on which the Fiber Optic Companies have trespassed covers hundreds of linear miles of property. Although an exact number is unknown, the Plaintiff believes there are at least hundreds of Class members. 18. There are questions of law and fact in common to all members of the

Class, and these common questions predominate over any questions affecting individual Class members.

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19.

The Plaintiff's claims are typical of the claims of the Class. The Plaintiff is a

member of the Class and has been injured by the same common course of wrongful conduct by Level 3, Sprint, WilTel and UP that has damaged the other members of the Class. In representing his own interest, the Plaintiff necessarily would represent the interests of all members of the Class. 20. The Plaintiff will fairly, fully and adequately protect the interests of the Class, and

have retained competent counsel experienced in prosecuting complex class action litigation. The Plaintiff has no interests that conflict with, or are adverse to, those of the Class. 21. The prosecution of separate actions by individual members of the Class would

create a risk of inconsistent adjudications with respect to individual members of the Class that could establish incompatible standards of conduct for the Defendants, or which could, as a practical matter, be dispositive of the interests of non-parties. 22. Questions of law or fact are common to all members of the Class and predominate

over any questions affecting only individual members, such that a class action is superior to other available methods for the fair and efficient adjudication of this controversy. Because the damage suffered by each individual Class member may be relatively small, the burden and expense of individual prosecution of this complex and extensive litigation makes it impossible for individual Class members to seek redress for the wrongful conduct alleged here. Absent a class action, Defendants likely would retain the benefits of their wrongdoing. In addition, individual litigation would increase the delay and expense to all parties and to the court system. By contrast, the class action device presents far fewer management difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single court.

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23.

The Plaintiff anticipates no unusual difficulties in the management of this

litigation as a class action. General Allegations 24. In the last few years, as fiber optic cable technology improved and voice and data

capacity needs increased, and particularly, use of the Internet exploded, telecommunications companies (including the Fiber Optic Companies) sought to construct new, nationwide fiber optic cable networks to carry ling distance voice and data transmissions. An extensive nationwide fiber optic network would provide a significant competitive advantage to the company first completing a network using the new and improved fiber optic technology. 25. The Fiber Optic Companies each sought to install such a network in the United

States, and to construct portions of their network in the State of Colorado, but faced the daunting task of laying cable and completing a network as quickly as possible in order to remain competitive. 26. In order to complete such a network, fiber optic cable had to be laid across land

that the Fiber Optic Companies have no legal right to enter. In some instances, certain companies contacted applicable landowners and negotiated contracts with them for the right to lay the cable. Accordingly, those landowners received compensation from the telecommunication companies in order to induce them to grant property rights to the telecommunications companies sufficient to allow the cable to be laid, operated, and maintained. 27. In order to achieve both lower costs and extra speed in laying its cable, however,

the Fiber Optic Companies each deliberately bypassed the Plaintiff and the Class on whose property the Fiber Optic Companies wanted to, and did, lay their cable. Instead, the Fiber Optic Companies each entered into agreements with UP and other railroads to lay, operate and

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maintain the cable under these railroads' right-of-way easements on the land of the Plaintiff and other Class members. 28. Pursuant to those agreements, the Fiber Optic Companies were to pay, have paid,

and continue to pay substantial sums of money to, and otherwise compensate UP and other railroads for the use of the right-of-way easements. 29. The right-of-way easements of UP and other railroads are surface easements

limited to purposes necessary to the operation of a railroad, and the laying and operating of the Fiber Optic Companies' cable is not such a purpose. For this reason, UP and other railroads had no rights by which they could allow the Fiber Optic Companies to lay, operate, and maintain the cable without providing compensation to landowners. 30. The Fiber Optic Companies did not inform the Plaintiff or other Class members of

their intent to enter upon their land, or to lay, operate, or maintain fiber optic cable on that land. 31. The Plaintiff and the Class members did not give the Defendants permission to

enter upon their land, or to lay, operate, or maintain fiber optic cable on that land. 32. Defendants knew or had reason to know that they had no right to enter, or

authorize the entry upon, the land of the Plaintiff and the Class members, or to lay, operate, and maintain fiber optic cable on that land. First Claim for Relief ­ Trespass 33. The Plaintiffs hereby incorporate by reference and realleges the allegations

contained in paragraphs 1 through 32 of this Complaint as if fully set forth herein. 34. By their actions in entering upon the land of the Plaintiff and the Class and

installing and maintaining thereon their fiber optic cable and related hardware and signs, all

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without permission or right, Level 3, Sprint and WilTel have committed a continuing and permanent trespass on the Plaintiff's and Class members' land. 35. At all times, Level 3, Sprint, WilTel and UP each knew, or had reason to know,

that UP did not have the authority to grant the Fiber Optic Companies the legal right to install, maintain or operate a fiber optic cable network on the Plaintiff's and Class members' land. Nonetheless, through concerted action, WilTel, Level 3, Sprint, and UP entered into agreements providing for the installation of such fiber optic cable by each of the Fiber Optic Companies on land belonging to the Plaintiffs and the Class, and further providing for the Fiber Optic Companies each to pay UP monies over a period of years for the purported right to install, maintain and operate the fiber optic cable network on land belonging to the Plaintiff and the Class. 36. WilTel, Level 3, Sprint, and UP consciously conspired and deliberately pursued a

common plan to commit a continuing and permanent trespass on the Plaintiff's and class members' land, and are jointly and severally liable for such trespass. 37. As a direct and proximate result of their trespass upon the land of the Plaintiff and

the Class, WilTel, Level 3, Sprint, and UP have realized substantial revenue and profits from the commercial occupation and use of said land, but have failed to pay any part of said revenue and profits to the Plaintiff and Class. 38. As a proximate result of the trespass of WilTel, Level 3, Sprint and UP on their

land, the Plaintiff and the Class members have been damaged by the diminution in the value of their land, by the deprivation of their right to determine possession and use of their land, and by the damage to the land. The Plaintiff and the Class members therefore are entitled to an award of compensatory damages from Level 3, Sprint, WilTel, and UP in an amount to be proved at trial.

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39.

The Defendants' conduct in knowingly trespassing on Plaintiff's and Class

members' land and in conspiring to trespass on Plaintiff's and Class members' land, to generate substantial proceeds for themselves without negotiating with and paying the Plaintiff and other Class members fair compensation for the use of their land, constitutes malicious, willful or wanton, and oppressive conduct, or at the very least, a reckless disregard for the rights of Plaintiff and the Class members. As such, Plaintiff and the Class members are entitled to an award of exemplary and punitive damages from the Defendants in an amount sufficient to deter such further acts by Defendants. Second Claim for Relief ­ Unjust Enrichment 40. The Plaintiff hereby incorporate by reference and realleges the allegations

contained in paragraphs 1 through 39 of this Complaint as if fully set forth herein. 41. As a result of the unlawful use and occupation of their land by WilTel, Level 3

and Sprint, and through the assistance and improper authorization of UP, the Plaintiff and other Class members have been deprived of the rents, profits, and other benefits properly arising from their ownership and control of said land. The unlawful commercial use and occupation of said land by WilTel, Level 3, and Sprint, and UP's improper and unlawful authorization of the Fiber Optic Companies to take such action, has resulted in the receipt and retention by the Fiber Optic Companies and UP of millions of dollars in the form of rents, profits, and other benefits properly payable to the Plaintiff and other Class members. 42. Level 3, Sprint, WilTel, and UP have been unjustly enriched by their receipt and

retention of substantial revenue in rents, profits, and other benefits properly payable to the Plaintiff and other Class members and, under the circumstances and in good conscience, they ought not be allowed to retain said rents, profits, and benefits.

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43.

The Plaintiff and Class members are entitled to a judgment requiring Level 3,

Sprint, WilTel, and UP to disgorge and pay to them all sums they have received that are properly due and owing to the Plaintiff and Class members as rents, profits, and other benefits incidental to ownership of their land, as restitution for the unjust enrichment of WilTel, Level 3, Sprint, and UP. Third Claim for Relief ­ Injunctive Relief 44. The Plaintiff hereby incorporate by reference and realleges the allegations

contained in paragraphs 1 through 43 of this Complaint as if fully set forth herein. 45. The Plaintiff and the Class are owners of real property affected by Defendants'

actions and thus have standing to seek declaratory and/or injunctive relief. 46. The railroad rights-of-way under which WilTel, Level 3, and Sprint have

installed, or had others install for them, their fiber optic cable, are limited to the surface and may be used only for purposes of operating a railroad. The right to license all non-railroad uses on the land encumbered by the railroad rights-of-way belongs to the Plaintiff and the Class. This use of the rights-of-way by WilTel, Level 3, and Sprint is thus unlawful. 47. Plaintiff prays this Court enter a judgment declaring that WilTel, Level 3, and

Sprint have no right to bury, maintain, and operate their fiber optic cable networks beneath the railroad rights-of-way of UP and other companies; that WilTel, Level 3, and Sprint have no legal rights to possess the property beneath the railroad rights-of-way of UP and other companies; that WilTel, Level 3, and Sprint may not lawfully continue to maintain and operate their fiber optic cable networks beneath the railroad rights-of-way of UP and other companies; that WilTel, Level 3, and Sprint be enjoined from using the railroad rights-of-way of UP and other companies; and

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that WilTel, Level 3, and Sprint be ordered to remove the fiber optic cable and related hardware from the railroad rights-of-way of UP and other companies. Prayer for Relief WHEREFORE, the Plaintiff prays for the following relief: 1. That this Court certify the Class as described herein, and name Plaintiff as the Class representative and their counsel as Class counsel. 2. That this Court enter a judgment against WilTel, Level 3, Sprint, and UP in an

amount sufficient to compensate the Plaintiff and other Class members for the direct and consequential damages cause by the Defendants' trespass, and for attorney fees, costs and expenses, and for all other relief just and proper. 3. That this Court enter a judgment against WilTel, Level 3, Sprint, and UP in an

amount equal to the amount by which Defendants have been unjustly enriched as a result of their unlawful entry upon, use, occupation, and collections of rents and profits from the rights-of-way, and for attorney fees, costs and expenses, and for all other relief just and proper. 4. That this Court enter a judgment against Defendants that WilTel, Level 3, and Sprint

have no right to bury, maintain, and operate their fiber optic cable networks beneath the railroad rights-of-way of UP and other companies; that WilTel, Level 3, and Sprint have no legal rights to possess the property beneath the railroad rights-of-way of UP and other companies; that WilTel, Level 3, and Sprint may not lawfully continue to maintain and operate their fiber optic cable networks beneath the railroad rights-of-way of UP and other companies; that WilTel, Level 3, and Sprint be enjoined from using the railroad rights-of-way of UP and other companies; and that WilTel, Level 3, and Sprint be ordered to remove the fiber optic cable and related hardware from the railroad rights-of-way of UP and other companies.

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5.

That this Court enter a judgment against Defendants for punitive damages in an

amount sufficient to deter further unlawful conduct described above by Defendants. Jury Demand The Plaintiff on behalf of himself and all others similarly situated, respectfully demand a trial by jury of all eligible claims. Date: December 21, 2005 Address of Plaintiff: Orin Loos 2218 E 12th Street, Cheyenne, WY 82001 s/ Karen Cody-Hopkins_____________ Charles W. Lilley, #9443 Moses Garcia, #26397 Karen Cody-Hopkins # 35367 LILLEY & GARCIA LLP 1600 Stout Street, Suite 1100 Denver, CO 80202 T: (303) 293-9800 F: (303)298-8975 [email protected] Irwin B. Levin Scott D. Gilchrist, #027774 COHEN & MALAD, P.C. 136 N. Delaware Street, Suite 300 P.O. Box 627 Indianapolis, Indiana 46206-0627 (317) 636-6481 Samuel D. Heins Kent M. WilTel Renae D. Steiner HEINS MILLS & OLSON, P.L.C. 700 Northstar East 608 Second Avenue South Minneapolis, Minnesota 55402 (612) 338-4605 Attorneys For the Plaintiff and Plaintiff Class Respectfully Submitted,

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CERTIFICATE OF SERVICE VIA CM/ECF SYSTEM The undersigned hereby certifies that on December 21, 2005, I electronically filed an AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL AND JOINDER OF DEFENDANT using the CM/ECF system which will send notification of such filing to the following counsel via their emails on file (as listed below) with the U.S. District Court for the District of Colorado's CM/ECF system: Daniel Warden Bond & Morris 303 17th Avenue, #888 Denver, CO 80203 (303) 837-9222 / Fax: (303) 837-0849 [email protected] Jonathon D. Bergman DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 (303) 892-9400 /Fax: (303) 893-1379 [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, KS 66210-1669 (913) 451-6060 /Fax: (913) 451-8879 [email protected] [email protected] [email protected] Steven E. Napper Union Pacific Railroad Company Law Department 1331 Seventeenth Street, #406 Denver, CO 80202 [email protected] J. Kevin Haves {& Pamela Anderson) HALL, ESTILL, HARDWICK, GABLE GOLDEN & NELSON, P.C. 320 South Boston #400 Tulsa, OK 74103 (918) 594-0400 / Fax: (918) 594-05050 [email protected] J. Emmett Logan STINSON MORRISON HECKER LLP 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 (816) 842-8600 /Fax: (816) 691-3495 [email protected] Joseph E. Jones Fraser, Stryker, Meusey, Olson, Boyer & Bloch 409 South 17th Street, #500 Omaha, NE 68102 [email protected]

__s/Karen Cody-Hopkins Karen Cody-Hopkins, # 35367 Attorney for Plaintiffs LILLEY & GARCIA, LLP35367 1600 Stout Street, Ste. 1100 Denver, CO 80202 T: (303) 293-9800 ; F: (303) 298-8975 [email protected]