Free Scheduling Order - 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-cv-00075-EWN-PAC ORIN LOOS and TIMOTHY J. THOMPSON, Plaintiffs, VS. LEVEL 3 COMMUNICATIONS, LLC, WILLIAMS COMMUNICATIONS, INC. SPRINT CORPORATION, and UNION PACIFIC RAILROAD COMPANY, Defendants. ________________________________________________________________________ SECOND AMENDED SCHEDULING ORDER ________________________________________________________________________ 1.DATE OF CONFERENCE AND APPEARANCES OF COUNSEL Scheduling conference date: November 10, 2005 For the Plaintiffs Orin Loos and Timothy J. Thompson: Charles W. Lilley, #9943 Karen J. Cody-Hopklins, #35367 Lilley & Garcia, LLP 1600 Stout Street, Ste. 1100 Denver, CO 80202 (303) 293-9800 Fax: (303) 298-8975 Scott D. Gilchrist, #027774 (via telephone) Cohen & Malad, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 (317) 636-6481 Fax: (317) 636-2593 For Defendant Williams Communications, Inc., now known as WilTel Communications, LLC:

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Daniel Warden Bond & Morris 303 17th Avenue, #888 Denver, CO 80203 (303) 837-9222 Fax: (303) 837-0849

Pamela Anderson (via telephone) HALL, ESTILL, HARDWICK, GABLE GOLDEN & NELSON, P.C. 320 South Boston #400 Tulsa, OK 74103 (918) 594-0400 Fax: (918) 594-05050

For Defendant Sprint Corporation and Sprint Communications Company, LLP: J. Emmett Logan (via telephone) STINSON MORRISON HECKER LLP 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 (816) 8428600 Fax: (816) 691-3495 For Defendant Level 3 Communications, LLC: Joseph E. Jones (via telephone) FRASER, STRYKER, MEUSEY, OLSON, BOYER & BLOCH, P.C. 500 Energy Plaza 409 South 17th Street Omaha, Nebraska 68102-2663 (402) 3416000 Fax: (402) 341-8290 For Defendant Union Pacific Railroad Company: Steven E. Napper UNION PACIFIC RAILROAD Ron Bodinson (via telephone) Gregory T. Wolf COMPANY 1331 17th Street, #406 Denver, CO (via telephone) SHOOK, HARDY & BACON 80202 (303) 964-4579 Fax: (303) 964-4585 L.L.P. 84 Corporate Woods 10801 Mastin, Suite 1000 Overland Park, KS 66210-1669 (913) 4516060 Fax: (913) 451-8879 2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiffs:

Plaintiffs are owners in fee simple absolute of certain parcels of property in Weld County, Colorado. Defendant Union Pacific Railroad Company (" ) owns a railroad UP" right-of-way which exists on, over, or adjacent to land owned by the Plaintiffs. UP entered into contracts with the other defendants (" Fiber Optic Companies" to allow ) Fiber Optic Companies to bury fiber optic cable beneath the right-of-way of UP crossing the Plaintiffs' property. Pursuant to these contracts, the Fiber Optic Companies have paid substantial compensation to UP, and have installed their fiber optic cable and related hardware in UP' right-of-ways in Colorado. Plaintiffs allege their property rights were s ignored in connection with both the installation and continued use of this cable and related hardware, and the payment of compensation. Plaintiffs allege that UP' right-ofs way is limited to railroad purposes only, and that their consent is necessary for the land beneath the right-of-way to be used for any non-railroad purpose. Plaintiffs claim damages from trespass and unjust enrichment, and also seek punitive damages and injunctive relief.

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b.

Defendants:

Union Pacific: This case is an individual action in which Plaintiffs purportedly own land adjacent to Defendant Union Pacific Railroad Company' (" ) railroad right s UP" of way in Colorado. Defendant Union Pacific contends that it possesses the right to contract with telecommunication companies to install fiber optic cable on its right of way in Colorado without the consent of adjoining landowners. Union Pacific asserts that it owns the fee title to the right of way adjoining the land owned by Plaintiffs. Further, Union Pacific utilizes the fiber optic cable on its right of way in Colorado for railroad purposes. Finally, Union Pacific asserts that Plaintiffs have not asserted any viable claims and/or are entitled to any damages and/or injunctive relief as alleged. Common Defenses of Fiber Optic Companies: The Fiber Optic Companies operate nationwide fiber optic telecommunications systems, including fiber optic cable placed along railroad right-of-ways owned by UP in Colorado. The Fiber Optic Companies, sometimes through predecessors, obtained permission to place fiber optic cable in UP' right-of-ways under agreements with UP. s Defendants assert that plaintiffs will not be able to prove that UP does not own fee title to the right-of-way that runs through or is adjacent to plaintiffs'property. Further, even if the railroad did not own title to the right-of-way in fee simple absolute, the United States owns any interest that the railroad does not own. Defendants also contend that, even where a railroad owns less than fee simple title in its right-of-way, it has authority to permit a telecommunications utility to use the right-of-way. This is so both under Colorado law and under the Federal Land Grant Acts that created the rights-of-ways adjacent to the property of the named plaintiffs. Thus, defendants assert that plaintiffs do not have a viable cause of action. Even if plaintiffs could prove that they own an interest in the right-of-ways, the trespass and unjust enrichment claims alleged by plaintiffs, as well as any inverse condemnation claims, are barred by the statue of limitations. Plaintiffs will not be able to demonstrate that the pertinent statute was tolled by the discovery tolling rule. Further, defendants assert that, if either plaintiff has a viable claim, his or her damages must be measured, on an individual basis, by any difference between the value of his or her property before the installation of the fiber optic cable and the value of the property after installation, and that plaintiffs have sustained no compensable damages. In summary, defendants deny liability to plaintiffs and deny plaintiffs are entitled to any damages. Additional Defense of Sprint Corporation: Sprint Corporation (" Sprint" is a holding company that owns Sprint ) Communications Company L.P. (" SCCLP" Sprint contends that it is not a proper party, ). as it owns no fiber optic cable, telecommunications facilities, or other assets in Colorado, and conducts no business in Colorado. The Court therefore has no jurisdiction over the

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person of Sprint and plaintiffs have no viable claims against Sprint. c. Other Parties: N/A 3. UNDISPUTED FACTS The following facts are undisputed: a. b. c. Defendant UP entered into contracts with the Fiber Optic Companies to bury fiber optic cable in the rights of ways of UP. Pursuant to these contracts, the Fiber Optic Companies have given consideration and paid compensation to UP. Pursuant to these contracts, the Fiber Optic Companies have installed fiber optic cable and related hardware in UP' right of-way that exists on, over, s or adjacent to land owned by the Plaintiffs. 4. COMPUTATION OF DAMAGES All parties intend to utilize experts to compute damages of the class. The parties currently disagree upon the proper methodology to compute damages. Generally, plaintiffs submit that they are entitled to damages sufficient to compensate them for trespass damages, the mesne profits received from the use of the land beneath the right of ways, for punitive damages, and all other relief for which they are entitled. Plaintiffs anticipate the calculations and amount of damages will be disclosed with their expert' s report on damages. Defendants contend that each plaintiff must prove the value of the subject property before the fiber optic cable was installed and the value of the property after installation and that damages are measured by any difference. 5. REPORT OF PRE-CONFERENCE DISCOVERY & MEETING UNDER F.R.C.P. 26(F) a. b. Date of Rule 26(f) meeting: July 1 and 5, 2005 Participants and parties represented: For the Plaintiffs: Samuel D. Heins, Stacey L. Mills, and David Woodward, HEINS, MILLS & OLSON, P.L.C., 550 IDS Center, 80 South 8th Street, Minneapolis, Minnesota, 55402; and Scott D. Gilchrist, COHEN & MALAD, P.C., One Indiana Square, Suite 1400, Indianapolis, IN, 46204; For Defendant Level 3 Communications, LLC: Joseph E. Jones, FRASER, STRYKER, MEUSEY, OLSON, BOYER & BLOCH, P.C., 500 Energy Plaza, 409 South 17th Street, Omaha, Nebraska 68102-2663; For Defendant Williams Communications, Inc.: Kevin Hayes, HALL,

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ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., 320 South Boston, #400, Tulsa, Oklahoma, 74103; For Defendant Sprint Corporation: Jonathan D. Bergman, DAVIS, GRAHAM & STUBBS LLP, 1550 17th Street, Suite 500, Denver, Colorado, 80202; and J. Emmett Logan, STINSON MORRISON HECKER, LLP, 1201 Walnut, Suite 2900, Kansas City, Missouri, 64106; For Defendant Union Pacific Railroad Company: Ron Bodinson, SHOOK HARDY & BACON, LLP, 84 Corporate Woods, 10801 Mastin, Suite 1000, Overland Park, KS 66210-1669 c. Changes to F.R.C.P. 26(a)(1) disclosures: The Court' March 27, 2001 s Scheduling Order set forth the F.R.C.P. 26(a)(1) disclosures the parties were to make. The parties have made all disclosures called for by the Court' March 27, s 2001 Scheduling Order. Informal discovery: Aside from the agreed disclosures set forth in the March 27 Order, the parties have not agreed to any informal discovery. 6. CONSENT All parties have not consented to the exercise of jurisdiction of a United States Magistrate Judge. 7. CASE PLAN AND SCHEDULE The Court has set this matter for trial commencing on March 6, 2006, and has set certain pre-trial deadlines. The parties have therefore proposed, and the Court now sets, the following schedule: a. b. c. d. e. Deadline for Joinder of Parties and Amendment of Pleadings: December 15, 2005. Discovery Cut-Off: February 20, 2006. Dispositive Motion Deadline: January 3, 2006. Expert Witness Disclosure: January 20, 2006. Deposition Schedule: The parties agree that those depositions of agents, employee or Rule 30(b)(6) designees of the Defendants that have been taken in this or other fiber optic trespass litigation may be used in these proceedings, including during the trial of this case. Any additional depositions will be scheduled by the parties prior to the February 20, 2006 discovery cut-off date.

d. e.

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f. g.

Interrogatory Schedule: Any Interrogatories shall be served no later than January 10, 2006. Schedule for Request for Production of Documents: Any Requests for Production of Documents shall be served no later than January 10, 2006. Discovery limitations: The parties agree to the presumptive discovery limitations set forth in the Federal Rules of Civil Procedure. Each defendant may propound 25 requests for production of documents. Plaintiff may propound 25 request for production of documents to each defendant. 8. SETTLEMENT

h. I.

The parties reached a Settlement Agreement that would have disposed of all of the claims asserted in this action. The United States District Court for the Northern District of Illinois certified a settlement class and preliminarily approved the Settlement Agreement. The United States Court of Appeals for the Seventh Circuit reversed the certification of the settlement class. Smith v. Sprint Communications Company L.P., 387 F.3d 612 (7th Cir. 2004). Since the Smith decision, counsel for the parties have engaged in negotiation for state-by-state settlements of the claims that were included in the nationwide Settlement Agreement. Those discussions have shown promise and are active and ongoing. 9. OTHER SCHEDULING ISSUES None 10. DATES FOR FURTHER CONFERENCES Preliminary Pretrial Conference: January 31, 2006, 10:00 a.m., Courtroom A501. The parties shall submit a proposed Preliminary Pretrial Order in Judge Nottingham's format, which is available on the Court's website no later than five (5) days before the preliminary pretrial conference. If the parties unanimously agree, and if the Court approves, they can waive the preliminary pretrial conference by timely filing a complete Preliminary Pretrial Order with the waiver of conference box checked. If the Court approves, the preliminary pretrial conference will be vacated and all parties will be notified before the preliminary pretrial conference. Proposed Amended Preliminary Pretrial Order: Due January 24, 2006. A settlement conference with the magistrate judge may be set at the request of counsel.

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11. OTHER MATTERS IN ADDITION TO FILING AN APPROPRIATE NOTICE WITH THE CLERK' OFFICE, COUNSEL MUST FILE A COPY OF ANY NOTICE OF S WITHDRAWAL, NOTICE OF SUBSTITUTION OF COUNSEL, OR NOTICE OF CHANGE OF COUNSEL' ADDRESS OR TELEPHONE NUMBER WITH THE S CLERK OF THE UNITED STATES MAGISTRATE ASSIGNED TO THE CASE. WITH RESPECT TO DISCOVERY DISPUTES, PARTIES MUST COMPLY WITH D.C. COLO. L.R. 7.1. The parties are advised that they may submit unresolved discovery disputes to the Court by conference calling the Court at 303844-4892. THE PARTIES FILING MOTIONS FOR EXTENSION OF TIME OR CONTINUANCES MUST COMPLY WITH D.C. COLO. L.R. 7.1(C) BY SUBMITTING PROOF THAT A COPY OF THE MOTION HAS BEEN SERVED UPON THE MOVING ATTORNEY' CLIENT, ALL ATTORNEYS OF RECORD, S AND ALL PRO SE LITIGANTS. 12. AMENDMENTS TO SCHEDULING ORDER The Scheduling Order may be altered or amended only upon a showing of good cause. * * * * DATED this 22nd day of November 2005. BY THE COURT: s/Patricia A. Coan Patricia A. Coan United States Magistrate Judge SCHEDULING ORDER TENDERED FOR REVIEW: /s/Charles W. Lilley Charles W. Lilley, #9443 Moses Garcia, #26397 Karen J. Cody-Hopklins, #35367 LILLEY & GARCIA LLP 1600 Stout Street, Suite 1100 Denver, CO 80202 (303) 293-9800 Fax: (303)298-8975

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Irwin B. Levin Scott D. Gilchrist, #027774 COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, Indiana 46206-0627 (317) 636-6481 Fax: (317)636-2593 Samuel D. Heins HEINS MILLS & OLSON, P.L.C. 550 IDS Center 80 South 8th Street Minneapolis, Minnesota 55402 (612) 338-4605 Fax (612) 338-4692 Attorneys for Plaintiffs /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 Fax: (402) 341-8290 Attorneys for Defendant Level 3 Communications, Inc. s/Daniel F. Warden Daniel F. Warden BOND & MORRIS, P.C. 303 17th Ave. #888 Denver, CO 80203 (303) 837-9222 Fax: (303) 837-0849 J. Kevin Hayes Pam Anderson HALL, ESTILL, HARDWICK, GABLE GOLDEN & NELSON, P.C. 320 South Boston #400 Tulsa, OK 74103 (918) 594-0400

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Fax: (918) 594-0505 Attorneys for Defendant WilTel Communications, Inc. /s/Jonathon D. Bergman Jonathon D. Bergman DAVIS, GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 (303) 892-9400 Fax: (303) 893-1379 J. Emmett Logan STINSON MORRISON & HECKER 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 (816) 842-8600 Fax: (816) 691-3495 Attorneys for Defendant Sprint Corporation /s/ Steven E. Napper Steven E. Napper UNION PACIFIC RAILROAD COMPANY 1331 17th Street, #406 Denver, CO 80202 (303) 964-4579 Fax: (303) 964-4585 Ron Bodinson Gregory T. Wolf 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 Attorneys for Defendant Union Pacific Railroad Company