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Regan v. Qwest Communications International

October 5, 2010

DIRK REGAN, CAROL REGAN, JACQUELYN SHELDRICK, STEPHEN PHILLIP RUTHERFORD, DONALD M. FISK, AND GLENN L. BOOM, FOR THEMSELVES AND BEHALF OF ALL OTHERS SIMILARLY SITUATED, ET AL., PLAINTIFFS,
v.
QWEST COMMUNICATIONS INTERNATIONAL, INC., ET AL., DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTION FOR CLASS CERTIFICATION

Named plaintiffs Glenn Boom and Stephen Phillip Rutherford bring this putative class action against defendants Qwest Communications International, Inc., Qwest Communications Corporation, Qwest Transmission Inc., Qwest USLD Communications Corporation, and Qwest Network Construction Services (collectively, "Qwest"). Before the court is plaintiffs' motion for class certification.

I. Factual and Procedural Background

The facts of this action have already been recounted by this court in its previous orders, and do not all bear repeating here. See Regan v. Williams Commc'ns Int'l, Inc., Nos. 01-779, 01-766, slip op. (E.D. Cal. June 17, 2005) (Order denying motion to reconsider); Regan v. Williams Commc'ns Int'l, Inc., Nos. 01-779, 01-766, slip op. (E.D. Cal. May 16, 2003) (Order denying motion for class certification). Glen Boom owns, in trust with his wife Sally Streeter Boom ("the Booms"), a 10.77 acre parcel of land in fee simple in Yuba County, California that is encumbered by a Union Pacific Railroad right-of-way. (Mot. for Class Cert (Docket No. 179) at 3-4.) Union Pacific Railroad's predecessor-in-title, Yuba County Rail, obtained the encumbrance pursuant to an 1877 condemnation order granting it an easement for railroad purposes. (Id. at 4.) Stephen Phillip Rutherford owns, in trust with his wife Maxine Rutherford and two children, approximately 3,000 acres of land in Imperial County, California. Two parcels of the Rutherford's property consisting of 12.86 and 45.35 acres located in Imperial County are crossed by Union Pacific Railroad's right of way. (Id. at 4.) Union Pacific Railroad's predecessor-in-title, Southern Pacific Company, purchased by deed a right-of-way easement in 1907 for railroad purposes. (Id.)

In short, plaintiffs allege that defendants trespassed on their lands and installed fiber optic telecommunications cables along railroad rights-of-way without their consent. (See Second Am. Class Action Compl. ("SAC") (Docket No. 136).) Plaintiffs contend that the rights-of-way granted to the railroad companies are easements for railroad purposes only and that defendants could not obtain occupancy rights in the right-of-way land without plaintiffs' consent. Plaintiffs seek declaratory relief and damages for trespass and unjust enrichment.

The court previously denied plaintiffs' motion for class certification on the ground that the then-putative class representatives did not satisfy the "typicality" requirement of Federal Rule of Civil Procedure 23(a). Regan v. Williams Commc'ns Int'l, Inc., Nos. 01-779, 01-766, slip op. (E.D. Cal. May 16, 2003). In that Order, the court found that defendants had presented a standing defense against class representatives Dirk and Carol Regan and Victor and Jacquelyn Sheldrick unique to them that could threaten to become a focus of the litigation to the detriment of the class members. Id. at 5-6. Specifically, defendants argued that plaintiffs did not hold any interest in the right-of-way land on which defendants laid their fiber optic cables because that strip of land was excepted from the property conveyed to plaintiffs' predecessors-in-interest. Id. at 5. Plaintiffs thereafter filed a motion for reconsideration, arguing in part that the "centerline presumption"---the presumption that an owner of land bounded by a road or street is presumed to own the center of the way--is a common issue that governs all deeds in California and that the language defendants challenged in the named plaintiffs' deeds was typical of class members. (Docket No. 124); see Cal. Civil Code §§ 831, 1112 (codifying the centerline presumption).

In denying plaintiffs' motion for reconsideration, the court expressed doubts about plaintiffs' case management plan, which would have had the court certify the class, provide a forum in which common issues could be litigated, and then hold individual trials to determine whether individual class members actually owned the right-of-way land. Regan v. Williams Commc'ns Int'l, Inc., Nos. 01-779, 01-766, slip op. at 13 (E.D. Cal. June 17, 2005). The court was concerned that plaintiffs wanted the court to apply the centerline presumption class-wide on a motion for summary judgment after class certification and "somehow dispose of the issue of the differing language of all class members' deed histories by ruling that all plaintiffs in the class own the relevant land." Id. at 12-13 (rejecting plaintiffs' reliance on In re U.S. Financial Securities Litigation, 69 F.R.D. 24 (S.D. Cal. 1975) as inapposite). The court made clear that "standing is a [] fundamental requirement for bringing suit" such that "the court will not permit standing to be determined after other issues are adjudicated." Id. at 14.

Plaintiffs amended their Complaint on August 15, 2005 to add Boom and Rutherford as putative class representatives. (See SAC). Plaintiffs again seek certification of the class. Plaintiffs define the class as "all owners of land in California that underlies or is adjacent to a railroad right-of-way within which Qwest owns, operates, or uses fiber optic cable ("Landowners")." (SAC ¶ 18.)

II. Discussion

A class action will be certified only if it meets the four prerequisites identified in Federal Rule of Civil Procedure 23(a) and additionally fits within one of the three subdivisions of Rule 23(b). Although a district court has discretion in determining whether the moving party has satisfied each Rule 23 requirement, Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Montgomery v. Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978), the court must conduct a rigorous inquiry before certifying a class. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982); E. Tex. Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403-05 (1977).

A. Class Definition

Implicit in Rule 23 is the requirement that the class must be adequately defined and clearly ascertainable. DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970); see also Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007). "The requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member." Aiken v. Obledo, 442 F. Supp. 628, at 658 (E.D. Cal. 1977). A class definition must be "precise, objective, and presently ascertainable." O'Connor v. Boeing North Am., Inc., 197 F.R.D. 404, 416 (C.D. Cal. 2000) (quotation marks omitted). "An adequate class definition specifies 'a distinct group of plaintiffs whose members [can] be identified with particularity.'" Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 593 (E.D. Cal. 2008) (quoting Lerwill v. In-flight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)).

Plaintiffs' class definition consists of a defined group of individuals--those who own land in California subject to or adjacent to a railroad right-of-way under which Qwest owns, operates, or uses fiber optic cables. Class members can be determined by reference to maps detailing railroad tracks and property boundaries, defendants' records regarding the location of Qwest's fiber optic cables, and class members' deeds to land. While an individualized evaluation of a potential class member's deed would be required, this does not preclude the class definition from being ascertainable. See Mazur v. Ebay, Inc., 257 F.R.D. 563, 566 (N.D. Cal. 2009) ("[T]he class need not be so ascertainable that every potential member can be identified at the commencement of the action.") Plaintiffs have provided a precise, objective, and ascertainable class definition.

Defendants argue that plaintiff's class definition is defective because the trespass alleged is a permanent trespass rather than a continuing trespass. According to defendants, it follows that only those property owners who owned the property at the time the trespass originally occurred have standing to sue for trespass and plaintiff's definition of current property owners is therefore inappropriate. The Supreme Court has counseled that there is "nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974); see United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Servs. Workers Int'l Union v. ConocoPhillips Co., 593 F.3d 802, 809 (9th Cir. 2010) ("[A] court can never be assured that a plaintiff will prevail on a given legal theory prior to a dispositive ruling on the merits, and a full inquiry into the merits of a putative class's legal claims is precisely what both the Supreme ...


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