RULING ON MOTION FOR SUMMARY JUDGMENT
JAMES J. BRADY, District Judge.
This matter is before the court on a motion by defendant, Level 3 Communications, LLC ("Level 3"), for summary judgment (doc. 10). Plaintiff, Nineteenth Judicial District Court Building Commission ("Building Commission"), opposes the motion (doc. 13), and Level 3 has replied to the opposition (doc. 17). Jurisdiction is based upon 28 U.S.C. § 1332. There is no need for a hearing and the matter is now submitted.
FACTS AND PROCEDURAL HISTORY
This action, originally filed in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, was removed on November 24, 2008. The petition alleges that the Building Commission is a non-profit corporation that owns property at 312 North Boulevard in Baton Rouge, Louisiana, where it is currently constructing a new public courthouse to serve the needs of the Nineteenth Judicial District Court. In the course of the project's foundation work, the Building Commission learned of several utility facilities located in the public right-of-way at the site, some of which were fiber-optic cables owned by Level 3.
According to the petition, the Building Commission first requested Level 3 to relocate the fiber-optic cables on August 3, 2007. However, despite repeated requests, and repeated warnings that delay in relocating the cables would result in significant construction delays and increased expenses on the construction project, Level 3 negligently and unreasonably delaying relocating the fiber-optic cables for three and a half months. The petition also alleges that Level 3's unreasonable delay, negligence and inattention, delayed the entire construction project and caused the Building Commission to incur increased expenses and delay damages.
Level 3 answered the petition by denying liability and asserting a counterclaim against the Building Commission. The counterclaim alleges that the "Building Commission has been unjustly enriched by and has enjoyed the benefit of Level 3's voluntary actions in removing and re-locating its fiber cables such that Level 3 should be reimbursed its expenditures, plus applicable interest." (Counterclaim,
On December 2, 2008, the Building Commission answered the counterclaim by denying liability. Then, on March 23, 2009, Level 3 filed the present motion for summary judgment. The motion is based on Level 3's assertion that it had no duty to move its fiber-optic cables at its own expense.
Level 3 argues that the cables were placed subject to a permit from the City of Baton Rouge, Parish of East Baton Rouge ("City/Parish"), and notes that the complaint alleges that the cables were placed in a "public right of way." According to Level 3, the Building Commission had no legal authority to demand that Level 3 move the cables at its expense because the permit provided that the cables need only be moved upon: (1) written notice; (2) from the City/Parish; (3) that the fiber-optic network was interfering with a street improvement, sewage, or drainage project (doc. 10-2). Level 3 argues further that none of the permit's conditions for relocation were met, and, in support of its assertion that it was required to relocate its cable only for a street, sewer, or drainage project, cites United Gas Pipe Line Company v. Lafourche Parish Police Jury, et al, 338 F.Supp. 1296 (E.D.La.1972).
In opposition to the motion for summary judgment, the Building Commission argues that Level 3 is liable for damages because Level 3:(1) "breached duties imposed by Louisiana's `dig law'" by failing to properly mark and identify its fiber-optic cable
Pursuant to Uniform Local Rule 56.1, Level 3 has set forth the following facts that it claims are material to the motion now before the court (doc. 10-3).
LAW AND ARGUMENT
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The non-movant's burden is not satisfied by some metaphysical doubt as to the material facts, or by conclusory allegations, unsubstantiated assertions or a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). In determining whether the movant is entitled to summary judgment, the court views facts in the light most favorable to the non-movant and draws all reasonable inferences in its favor. Coleman v. Houston Independent School District, 113 F.3d 528 (5th Cir.1997). "If the defendant in a... civil case moves for summary judgment..., [the inquiry is] whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
In a diversity case, the court must apply state substantive law; here the applicable law is Louisiana law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). To determine Louisiana law the court must "make an educated `Erie guess' as to how the Louisiana Supreme Court would resolve the issues." Audler v. CBC Innovis, Inc., 519 F.3d 239, 248-49 (5th Cir.2008). In a civil suit, the plaintiff bears the burden of proving negligence by a preponderance of the evidence. Miller v. Leonard, 588 So.2d 79 (La.1991).
Claims of Trespass and Negligence
Insofar as it relates to the claims of trespass and negligence, the present motion for summary judgment rests on Level 3's assertion that the Building Commission has failed to set forth evidence to establish a genuine issue of fact as to whether the fiber-optic cable network encroached on courthouse property.
Trespass, under Louisiana law, is defined as "the unlawful physical invasion of the property or possession of another person." Powell v. Dorris, 814 So.2d 763, 772 (La.App. 2 Cir.2002) (quoting Versai Management, Inc. v. Monticello Forest Prods. Corp., 479 So.2d 477, 482 (La.App. 1 Cir.1985)). A public right-of-way is a public thing. Giardina v. Marrero Furniture Co., Inc., 310 So.2d 607 (La.1975); see also, Worthen v. DeLong, 763 So.2d 820 (La.App. 1 Cir.2000)(citing La.Civ.Code art. 450, and stating that "[a] parcel of land dedicated as a public right of way is a public thing"). Article 450 of the Louisiana Civil Code provides in pertinent part that:
La.Civ.Code art. 450.
For purposes of the present motion for summary judgment, the undisputed facts establish that the Building Commission is
The original location of the cables is also material to the resolution of the negligence claim asserted by the Building Commission. In support of its motion for summary judgment on the claim against if for negligently failing to promptly mark and relocate its cables, Level 3 argues that no evidence has been set forth to establish that the cable network encroached on property owned by the Building Commission, and without setting forth such evidence, the Building Commission cannot establish that Level 3 owed any duty to relocate the cables.
If, however, the cable network did encroach on property owned by the Building Commission and interfered with construction of the courthouse, then the Building Commission had legal ground to demand relocation of the cables at Level 3's expense. See Article 458 of the Louisiana Civil Code, providing:
La.Civ.Code art. 458; see also, Band v. Audubon Park Com'n., 936 So.2d 841 (La. App. 4 Cir.2006) (holding that article 458 applies to works that encroach upon property owned by a city park commission).
The Building Commission has submitted the affidavit of Matthew Tanory, in which he states that the fiber-optic cable network was located "within the footprint of the new courthouse," and "[s]heet piles were to be driven in the location of the newly discovered cables." (Tanory Affidavit, ¶ 9). The Building Commission has also submitted daily job progress reports, which, according to the affidavit of Matthew Tanory, were made during the regular course of business on the courthouse project (Tanory Affidavit, ¶ 3). Entries in the daily progress reports indicate that the fiber-optic cable network was holding up placement of sheet piles by September 19, 2007 (doc. 14, pp. 30, 32).
Viewing facts in the light most favorable to the Building Commission and drawing all reasonable inferences in its favor, the court concludes that a reasonable juror could find, from the daily job progress reports and the statements of Matthew Tanory, that Level 3's fiber-optic cable
Claim of Detrimental Reliance
The doctrine of detrimental reliance is codified in the Louisiana Civil Code as follows:
"Detrimental reliance, also known as equitable estoppel, prevents a party from taking a position contrary to his prior acts, admissions, representations, or silence." Garber v. Badon & Ranier, 981 So.2d 92, 105 (La.App. 3 Cir.2008). It is not favored by the law and all claims must be examined carefully and strictly. Id.
East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 5 So.3d 238, 246 (La.App. 1 Cir.2008) (citing Suire v. Lafayette City-Parish Consolidated Government, 907 So.2d 37, 59 (La.2005)). "[T]he focus of analysis of a detrimental reliance claim is not whether the parties intended to perform, but, instead, whether a representation was made in such a manner that the promisor should have expected the promise to rely upon it and whether the promisee so relies to his detriment." Garber, 981 So.2d at 105.
The Building Commission maintains that Level 3 agreed to relocate its cables in a timely manner and assured the Building Commission that its building project schedule would not be interrupted by the relocation of the cables. The Building Commission further maintains that it scheduled the construction project in reliance upon Level 3's assurances, and consequently incurred significant delay costs when the project had to be shut down from October 3, 2007 until the first week of December due to Level 3's failure to relocate the cables in the timely manner promised.
The General Comments section of the September 6, 2007 daily progress report submitted by the Building Commission indicates that, according to "upper management" at Level 3, the contractor was released
Accordingly, the court concludes that the Building Commission has set forth specific facts from which a reasonable juror could conclude that the Building Commission relied, to its detriment, on statements made by representatives of Level 3. Moreover, because Level 3's cables were being relocated to facilitate construction of a new courthouse building, the court finds that a reasonable juror could also conclude that Level 3 knew or should have known that the Building Commission would rely on such statements in the course of scheduling and coordinating the work of crews and heavy equipment.
For the reasons stated above, the motion by defendant, Level 3 Communications, LLC, for summary judgment (doc. 10) is hereby
Mathieu v. Imperial Toy Corp., 646 So.2d 318, 322 (La.1994).