United States District Court, D. South Dakota, Western Division
CENTURYLINK COMMUNICATIONS, LLC, a Delaware Limited Liability Company, Plaintiff,
B & B FOUNDATION SERVICE, INCORPORATED, a South Dakota corporation, Defendant/Third-Party Plaintiff, ONE CALL LOCATORS, LTD, d/b/a ELM LOCATING & UTILITY SERVICES, Third-Party Defendants.
JEFFREY L. VIKEN CHIEF JUDGE.
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).
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).
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.
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.
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.
“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).
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).
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).
STATUTORY AND REGULATORY BACKGROUND
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.
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 ...