West v. Louisville Gas & Electric Co., 030220 FED7, 19-2442

Docket Nº:19-2442
Opinion Judge:EASTERBROOK, CIRCUIT JUDGE.
Party Name:Stephen R. West, Plaintiff-Appellant, v. Louisville Gas & Electric Company, Defendant, and Charter Communications, Inc., and Spectrum Mid-America, LLC, Defendants-Appellees.
Judge Panel:Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.
Case Date:March 02, 2020
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Stephen R. West, Plaintiff-Appellant,

v.

Louisville Gas & Electric Company, Defendant,

and

Charter Communications, Inc., and Spectrum Mid-America, LLC, Defendants-Appellees.

No. 19-2442

United States Court of Appeals, Seventh Circuit

March 2, 2020

Argued January 15, 2020

Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:16-cv-00145-RLY-DML - Richard L. Young, Judge.

Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

EASTERBROOK, CIRCUIT JUDGE.

This appeal presents a question about how 47 U.S.C. §541(a)(2), part of the Cable Communications Policy Act of 1984, affects use of a utility easement in Indiana.

In 1938 a predecessor of Stephen West granted a perpetual easement to a predecessor of Louisville Gas & Electric Company, permitting it to build and maintain a 248-foot-tall tower carrying high-voltage electric lines. (Ownership of both the underlying land and the easement has changed hands since 1938. For simplicity we refer to the current owners.) In 2000 Louisville Gas permitted Charter Communications to install on the towers a fiber optic cable that carries communications (telephone service, cable TV service, and internet data). Louisville Gas asked in 1990 for explicit permission to do this, and West refused. In 2000 it concluded that the existing easement allows the installation of wires that carry photons (that is, fiber-optic cables) along with the wires that carry electrons. West disagreed and filed this suit under the diversity jurisdiction, seeking compensation from Louisville Gas, under Indiana's substantive law, for the addition of the new cable.

Some time later West added Charter Communications, Insight Kentucky Partners II, L.P., and "Time Warner Cable" as additional defendants. As far as we can tell Time Warner Cable is a trade name rather than a juridical entity. There used to be a Time Warner Cable Inc., but it merged into Charter in 2016. We have omitted Time Warner Cable from the caption and do not mention it again, as trade names are not suable. See Schiavone v. Fortune, 477 U.S. 21 (1986). Insight Kentucky Partners II also has disappeared by merger; its successor appears to be Spectrum Mid-America, LLC, which we have substituted in the caption, though Insight Kentucky Partners II remains relevant to jurisdiction.

The district court granted Charter's motion to dismiss on the pleadings, ruling that §541 (a) (2) gives it a right to use existing easements dedicated to service as utility corridors. 2018 U.S. Dist. LEXIS 2832 (S.D. Ind. Jan. 8, 2018). But the judge denied Louisville Gas's motion to dismiss, writing that some issues of Indiana law could not be resolved on the pleadings. 2018 U.S. Dist. LEXIS 2830 (S.D. Ind. Jan. 8, 2018).

West wanted to appeal immediately. But instead of asking the district judge to issue a partial final judgment under Fed.R.Civ.P. 54(b), he dismissed his claim against Louisville Gas without prejudice, reserving a right to reinstate it after an appellate decision about his rights vis-a-vis Charter. We dismissed the ensuing appeal, observing that it has long been settled that parties cannot use a dismiss-and-reinstate plan to circumvent the final-decision rule of 28 U.S.C. §1291. See West v. Louisville Gas & Electric Co., 920 F.3d 499 (7th Cir. 2019). West then settled his dispute with Louisville Gas and filed a second appeal.

Unfortunately, the experience of having one appeal dismissed did not induce counsel to pay attention to appellate jurisdiction the second time around. Circuit Rule 30(a) requires the appellant to submit, bound with the brief, an appendix containing "the judgment or order under review". Despite certifying compliance with this rule, West's appellate lawyers (he has five) omitted the judgment. We tracked it down and found, to our surprise, that it does not mention Insight Kentucky Partners II or its successor. Appeal is possible only after final decision has been entered with respect to all litigants; that was the central point of our opinion dismissing West's first appeal. Yet no one asked the...

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