Centurylink Communications, LLC v. B & B Foundation Service, Inc.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         Plaintiff CenturyLink Communications, LLC, (“CenturyLink”) filed this action against defendant B & B Foundation Service Incorporated (“B&B”). (Docket 1). In responding to CenturyLink's complaint, B&B filed a third-party complaint against One Call Locators, LTD., d/b/a ELM Locating & Utility Services (“ELM”). (Docket 8). ELM then filed a motion for summary judgment against B&B. (Docket 14).

         STANDARD OF REVIEW

         Under Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment if the movant can “show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at p. 248. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48 (emphasis in original).

         If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party failed to “make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In such a case, “there can be ‘no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at p. 323.

         In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The key inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at pp. 251-52.

         FACTS

         The following recitation consists of the material facts developed from CenturyLink's complaint (Docket 1), B&B's answer and third-party complaint against ELM (Docket 8), ELM's answer to the third-party complaint (Docket 11), ELM's statement of undisputed material facts (Docket 16) and B&B's response. (Docket 21). B&B also filed a supplemental response to ELM's statement of facts (Docket 41), and ELM submitted a response. (Docket 45). Where a statement of fact is admitted by the opposing party, the court will only reference the initiating document. These facts are “viewed in the light most favorable to the [party] opposing the motion.” Matsushita Elec. Indus. Co., 475 U.S. at 587.

         CenturyLink “is a telecommunications company which provides interstate telecommunications services to individual and commercial users.” (Docket 1 at p. 2). It provides these services in part through “a nationwide network of [underground] fiber-optic cable[s] . . . .” Id. CenturyLink's complaint against B&B alleges damage done to CenturyLink's cables located at the intersection of St. Patrick Street and South Valley Drive in Rapid City, South Dakota. Id. at pp. 2-6; (Docket 16 ¶ 1).

         Muth Electric (“Muth”) entered a contract with the City of Rapid City to complete traffic light installation at the intersection of St. Patrick Street and South Valley Drive. (Dockets 16 ¶ 2 & 41 ¶ 16). Muth obtained a locate ticket to permit excavation at the intersection. (Docket 16 ¶ 3; Docket 21 ¶ 3). The locate ticket names Muth as the excavator. (Docket 16 ¶ 3). Muth contracted with B&B to perform the excavation. Id. ¶¶ 4-5. Before excavation started, ELM placed markings on the ground at the intersection identifying the location for the excavation. Id. ¶ 14; (Dockets 21 ¶ 14 & 41 ¶ 18).

         B&B performed the excavation at the intersection specified in Muth's locate ticket. (Docket 16 ¶¶ 9-11). While excavating, B&B made contact with a telephone line. (Docket 41 ¶ 33). B&B was informed the telephone line was abandoned. Id. ¶ 34; (Docket 45 ¶ 34). Later, B&B continued excavating and struck fiber optic cables. (Docket 41 ¶ 56; Docket 8 at p. 6). CenturyLink claims it owns the fiber optic cables B&B damaged. (Docket 1 at p. 3).

         PROCEDURAL, STATUTORY AND REGULATORY BACKGROUND

         CenturyLink's complaint against B&B consists of three counts: trespass, negligence and a violation of South Dakota utilities law. (Docket 1 at pp. 2-6). As CenturyLink states, the court has diversity jurisdiction over the case because the parties are diverse and the amount in controversy exceeds $75, 000. Id. at pp. 1-2; 28 U.S.C. § 1332.

         B&B's answer to CenturyLink's complaint and third-party complaint against ELM sets forth its claims against ELM for equitable relief in the form of indemnification or contribution. (Docket 8 at p. 6). ELM's summary judgment motion as to B&B's claims argues B&B is ...