Zografos v. Qwest Communications Corp., CIV.00-6201-AA.
| Decision Date | 12 July 2002 |
| Docket Number | No. CIV.00-6201-AA.,CIV.00-6201-AA. |
| Citation | 225 F.Supp.2d 1217 |
| Parties | Bill ZOGRAFOS and Sharon Zografos, Swan Ranch LLC, Lesco Enterprises, Inc., Gross-Wilkinson Ranch Co., Rex Dolan, and Everett and Joanne Chambers, Plaintiffs, v. QWEST COMMUNICATIONS CORP., Sprint Communications Company, L.P., MCI WORLDCOM Network Services, Inc., Williams Communications, LLC, and Level 3 Communications, LLC, Defendants. |
| Court | U.S. District Court — District of Oregon |
Dan W. Clark, Dole, Coalwell, Clark, et al., Roseburg, OR, Samuel D. Heins, Stacey L. Mills, Renae D. Steiner, Kent M. Williams, Heins, Mills & Olson, Minneapolis, MN, Irwin B. Levin, Cohen & Malad, LLP, Indianapolis, IN, Kenneth Wittenberg, Wittenberg & Pitzer, Portland, OR, for Plaintiffs.
Michael G. Andrea, Eric R. Todderud, Heller, Ehrman, White & McAuliffe, LLP, Portland, OR, Emily Brubaker, John F. Daum, Paul G. McNamara, O'Melveny & Myers, LLP, Los Angeles, CA, Kyle D. Freeman, J. Kevin Hayes, T. Lane Wilson, Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, OK, David A. Handzo, J. Alex Ward, Jenner & Block, Washington DC, Natalie L. Hocken, Pacificorp, Portland, OR, Joseph Edward Jones, Fraser, Stryker, Meusey, Olson, Boyer & Bloch, Omaha, NE, Stuart Duncan Jones, Bullivant, Houser, Bailey, PC, Portland, OR, Robert A. Kerr, Dunn, Carney, Allen, Higgins & Tongue, Portland, OR, J. Emmett Logan, Morrison & Hecker, LLP, John P. Nusbaum, Lawrence H. Reichman, Michael H. Simon, Perkins Coie, LLP, Portland, OR, Scott A. Powell, Hare, Wynn, Newell & Newton, Birmingham, AL, Henry J. Price, Price, Potter, Jackson, et al., Indianapolis, IN, Thomas C. Sand, Miller, Nash, Wiener, Hager & Carlsen, LLP, Portland, OR, M. Max Williams, II, Miller Nash, LLP, Portland, OR, for Defendants.
Nels J. Ackerson, Kathleen C. Kauffman, The Ackerson Group, Washington, DC, Douglas C. Adair, Trippe, Brown & Adair, LLP, Birmingham, AL, John B. Baldwin, Baldwin & Baldwin, LLP, Marshall, TX, Hayes D. Brown, Monroe, Trippe, Brown & Adair, LLP, Birmingham, AL, Donald J. Churnside, Gaydos, Churnside & Balthrop, PC, Eugene, OR, Andrew W. Cohen, Roger C. Johnson, Koontz, McKenney, Johnson, et al., Washington, DC, Catherine M. Colinvaux, Zelle, Hofmann, Voelbel, Mason & Gette, Waltham, MA, William A. Davis, Abbott, Davis, Rothwell, Mullin & Earle, PC, Portland, OR, Joel DeVore, Robert H. Fraser, David A. Jacobs, Luvaas, Cobb, Richards & Fraser, PC, Eugene, OR, Richard L. Duncan, Gilreath & Associates, Knoxville, TN, William T. Gotfryd, Arthur T. Susman, Susman & Watkins, Chicago, IL, George Valton Jones, George Valton Jones Attorney at Law, Marshall, TX, John F. Kilcullen, Brown, Roseta, Long, et al., Eugene, OR, Jordan M. Lewis, Stegel, Brill, Greupner, Duffy & Foster, Milwaukee, WI, John B. Massopust, Daniel J. Millea, Zelle, Hofmann, Voelbel, Mason & Gette, LLP, Minneapolis, MN, Mike Miller, Solberg, Stewart, Miller & Johnson, Fargo, ND, Donald K. Vowell, Vowell & Associates, Knoxville, TN, Ronald J. Waicukauski, Price, Potter, Jackson, et al., Indianapolis, IN, for Intervenors.
Ron Bodinson, Shook, Hardy & Bacon, LLP, Overland Park, KS, Christopher T. Carson, Kilmer, Voorhees & Laurick, PC, Portland, OR, Joe Rebein, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Union Pacific Railroad Co.
This action arises out of the construction of fiber optic cable networks along railroad Rights of Way. See Amended Complaint, ¶ 2. Defendants Qwest Communications, Sprint Communication, MCI WORLDCOM Network Services, Williams Communications and Level 3 Communications (defendants) obtained the railroads' permission to install telecommunications facilities in the Rights of Way. Id. Plaintiffs alleged that the railroads' interest in a right of way is often easement or other limited property interest. Id. at 3. Plaintiffs further alleged that, because laying fiber optic cable and maintaining a telecommunications line is not a railroad purpose, the telecommunications companies have trespassed and continue to trespass, when they install and use fiber optic cable along the Rights of Way without the landowners' permission. Id. at 4.
The defendants asserts that the railroads own fee simple title to most of the railroads' Rights of Way and that, while their property interest is limited, it is still sufficient to authorize a telecommunications use. Defendants also assert that the installation of fiber optic networks began as early as 1984 and allege that plaintiffs' claims are barred by the statute of limitations, along with other affirmative defenses. The railroads also deny any wrongdoing, and raise additional affirmative defenses.
In June 2001, in the Northern District of Illinois (Chicago), a similar case was ongoing. Judge Anderson, the presiding judge, was informed that settlement negotiations were underway and therefore granted extensions of time for the briefing and discovery schedules. In September 2001, intervening parties filed motions to intervene in the Chicago lawsuit when they learned that a possible settlement proposal might be presented to Judge Anderson. On October 9, 2001, Judge Anderson held a status conference during which the parties announced a settlement agreement. On October 29, 2001, Judge Anderson again convened all of the parties (both the settling parties and the intervenors) and held another status conference. Parties to the proposed settlement agreement requested preliminary approval scheduling, however, Judge Anderson requested that intervenors' initiate settlement negotiations with the telecommunications defendants.
On November 8, 2002, Judge Anderson again convened a status hearing where the case was referred to Magistrate Judge Brown for settlement purposes. On November 19, 2001, Judge Brown issued an order setting a scheduling hearing for November 29, 2001, for the purpose of setting a settlement conference date. On December 18, 2001, Judge Brown held a full-day settlement meeting.
On December 19, 2001, Judge Anderson held another status hearing and stated, with regard to the status of the settlement proceeding before him, "I think the only honest thing that anybody ... can do in reporting on the proceedings in this court to another court is to truthfully report that there has been a proposal and there has been a process set in motion to see whether or not there could be a consensus behind that proposal—but the Court has not ruled on anything." On January 15, 2002, during another hearing held by Judge Anderson, he stated, "I am willing to go forward." Judge Anderson then formally appointed James Wilson, an attorney at the law firm Shefsky & Froelich in Chicago, as a Special Master to handle the settlement approval process. Judge Anderson ordered all parties to submit settlement papers to be docketed on the record and to file an amended complaint that included all the "consensus" telecommunication companies as defendants by February 26, 2002. He scheduled a hearing on March 4, 2002.
On January 25, 2002, the intervenor plaintiffs filed a Joint Motion for Transfer for Coordination or Consolidation pursuant to 28 U.S.C. § 1407 with the Judicial Panel on Multidistrict Litigation (MDL Panel), which was ultimately denied. That motion expressed concern that the telecommunications companies might engage in judge shopping.
On January 29, 2002, this court held a telephone status conference at the request of the parties in CV 00-6201-AA, and discussed a briefing schedule for the preliminary approval of settlement. On January 31, 2002, the settling parties (plaintiffs and five defendant telecommunications companies) filed with this court, a Joint Motion for Order for preliminary approval of settlement, certification of a settlement class, approval of notice and entry of an injunction against prosecution of settled claims, and a stipulation to amend the complaint— and moved for expedited approval. Within days, a vast array of intervening parties filed motions to intervene in this action. Also on January 31, 2002, plaintiffs' counsel mailed Judge Anderson a letter informing him that the settling parties would no longer seek approval of the Settlement Agreement in the Northern District of Illinois.
At issue before this court is the intervenors' Motion to Dismiss the Amended Complaint or Stay this Action. The settling parties oppose the motion and urge the court to proceed to consideration of their motion for preliminary approval of the proposed settlement. The intervenors' motion to dismiss the amended complaint is granted, and the alternative motion to stay is denied as moot.
The Ninth Circuit has set forth five factors for a district court's consideration before resorting to the penalty of dismissal for judge shopping: (1) the public's interest in expeditious resolution of ligation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir.1998). Hernandez noted that the trial judge had failed to explicitly consider the five factors noted above, therefore, the appellate court reviewed the record independently to determine whether the district court had abused its discretion. Hernandez held it will "affirm a dismissal where at least four factors support dismissal, or where at least three factors `strongly' support dismissal." Id.
The settling parties argue that this factor weighs in favor of this court proceeding with consideration of the proposed settlement because dismissal would "delay or prevent" judicial consideration of the proposed settlement because several parties to the proposed settlement would no longer be parties to the case.
The Intervenors' respond that there is no reason...
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...dismissed the amended complaint as a sanction for "clear evidence of judge-shopping by the settling parties." Zografos v. Qwest Comm. Corp., 225 F.Supp.2d 1217, 1223 (D.Or.2002). The Court ruled [t]he fact that the settling parties grew increasingly unhappy with Judge Anders[e]n as he expre......
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Smith v. Sprint Communications Co., L.P.
...a decision that hit the nail squarely on its head, dismissed the case on the grounds of "judge shopping." Zografos v. Qwest Communications Corp., 225 F.Supp.2d 1217, 1223 (D. Or. 2002). The settling parties then returned to Chicago for another stab at making their deal The fact that a settl......