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Level 3 Communications, LLC v. Lidco Imperial Valley

January 30, 2013

LEVEL 3 COMMUNICATIONS, LLC,
PLAINTIFF,
v.
LIDCO IMPERIAL VALLEY, INC.
DEFENDANT.



The opinion of the court was delivered by: Hon. Gonzalo P. CURIELUnited States District Judge

ORDER DENYING MOTION FOR RECONSIDERATION [ECF NO. 59]

INTRODUCTION

Before the Court is Defendant's Motion for Reconsideration. (ECF No. 59.) Plaintiff filed an opposition to the Motion, (ECF No. 61), and Defendant has filed a reply, (ECF No. 62). After considering the record in this matter and the parties' submissions, and for the reasons that follow, the Court DENIES Defendant's Motion.

BACKGROUND*fn1

I. Facts

This lawsuit arises out of damage to Plaintiff's underground fiberoptic cable line caused by Defendant's excavation activities.

On October 6, 2000, Plaintiff entered into an "Easement Agreement with Temporary Work Space" (the "Easement Agreement") with T. J. La Brucherie, Mary K. La Brucherie, and La Brucherie Ranch, Inc., a California Corporation (collectively, "LBR"), pursuant to which LBR granted Plaintiff: a right of way and easement for (1) a one time right to construct and install a fiber optic system and (2) a perpetual right to operate, maintain, inspect, alter, upgrade, replace and remove such underground communications system ("System") as the Grantee may, from time to time, require, consisting of underground cables, wires, conduits, drains, and other underground facilities and equipment for similar uses, through, under and along a parcel of land ten feet (10') in width ("Easement") . . . together with:

(A) the right of ingress and egress over and across any adjacent real property owned or controlled by Grantor and the Easement and Temporary Work Space for the purpose of exercising the rights granted herein provided that such ingress and egress does not interfere with the Grantor's improvements or uses;

(B) the right to clear and keep cleared all trees, roots, brush and other obstructions from the surface and sub-surface of the Easement, and during construction or maintenance periods, to use additional areas adjacent to the Easement for ingress and egress.

(ECF No. 42-1, Pl.'s Stmt. Undisp. Facts, Ex. 1.) In or around late 2000-early 2001, Plaintiff installed 12 underground conduits and a fiberoptic telecommunications cable pursuant to the Easement Agreement.

On July 1, 2008, Defendant was excavating across the easement to install a drainage line for LBR. While excavating, Defendant damaged the conduits and severed the fiberoptic cable. Defendant did not have consent or permission from Plaintiff to excavate the easement or to contact the conduits or cable.

II. Procedural History

Defendant filed its answer on July 19, 2011, and did not serve and file a request for a jury trial within the next fourteen days. Nearly a year later, on June 22, 2012, Defendant filed a motion for a jury trial, pursuant to Rule 39(b). In support of its Motion for Jury Trial, Defendant claimed that unexpected issues of fact arose during the discovery period in this case:

Specifically, issues of fact arose regarding whether [Defendant] knew or reasonably should have known of the presence of [Plaintiff's] cable before conducting the excavation, whether the cable is located within an easement on the private property or in a public right-of-way, whether [Defendant] was [LBR's] agent so as to preclude suit under ...


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