Opinion
Case No. 00-4040-RDR.
November 10, 2005
ORDER
This matter is presently before the court upon plaintiff's motion for limited relief from stay of proceedings. Having carefully reviewed and considered the arguments of the parties, the court is now prepared to rule.
This case has a rather complicated background. Plaintiff filed this action in 2000 against defendants MCI Worldcom, Inc. and Union Pacific Railroad Company. Plaintiff asserts claims of trespass and unjust enrichment based upon MCI's installation of fiber optic cable in the Union Pacific's right of way. Plaintiff alleges that although MCI obtained consent for installation of the fiber optic cable from Union Pacific, it did not seek consent from adjacent landowners who, according to plaintiff, own the fee interest underlying Union Pacific's right of way. Cases with similar facts have been filed across the country.
On September 12, 2001, at the request of the parties, the court entered a stay of all proceedings in this matter due to negotiations that were expected to result in a settlement of all claims. The court continued the stay in early 2002 when the parties reported that a national class action settlement agreement had been reached. The court received periodic reports from the parties on what proved to be a lengthy settlement approval process. On July 21, 2002 MCI filed for bankruptcy. The stay continued as the parties subsequently reported periodically on the status of the MCI bankruptcy case, and the ongoing process to gain approval of the national class settlement, which from that point on did not directly involve MCI.
In the summer of 2004, MCI reported that the bankruptcy court had approved a plan of reorganization, and the plan had become effective on April 20, 2004. On October 18, 2004, the Seventh Circuit overturned the district court's order preliminarily approving the national class settlement. This court continued its stay of all proceedings in light of the continuing proceedings in the bankruptcy case.
On August 10, 2005, plaintiff urged resumption of the proceedings in this case against Union Pacific and that portion of his claims which seek recovery for MCI's post-petition usage of the right of way adjacent to his property. MCI and Union Pacific argued for a continuation of the stay. The court continued the stay until December 17, 2005, subject to any new developments.
Plaintiff now seeks limited relief from the stay in this case in order to certify a question to the Kansas Supreme Court. Plaintiff seeks to certify the following question to the Kansas Supreme Court: Under Kansas law, what are the elements for a claim of continuing trespass based upon an intangible but deliberate invasion? Plaintiff suggests that guidance on this issue is critical not only to his post-petition claims against MCI, but also may have an effect upon his claims against Union Pacific.
Union Pacific opposes plaintiff's motion. It argues that there is no basis for certification here for a variety of reasons.
In early 2005, the MCI bankruptcy court decided an adversary proceeding which involved the claims of Victor O. Browning, a Kansas landowner and putative class representative for a fiber optic cable class action. In In re Worldcom, Inc., 320 B.R. 772 (Bankr.S.D.N.Y. 2005), the bankruptcy court rejected Browning's post-petition trespass claims against MCI based on the bankruptcy court's construction of Kansas law. The court determined that Kansas law required a showing of substantial actual damage in a continuing trespass claim involving an intangible invasion, such as transmission of light pulses through fiber optic cable. This decision is now on appeal.
Both parties argue strenuously concerning the impact of the bankruptcy decision on the Browning claims. Plaintiff contends that the bankruptcy decision was wrongly decided because it failed to properly consider applicable Kansas law. Plaintiff further argues that this issue needs to be decided and that certification will allow this case to move to a resolution.
Union Pacific suggests that plaintiff's efforts in this case are simply an attempt to undo the bankruptcy decision which was adverse to the plaintiff's position in this case. Union Pacific argues that the plaintiff's motion should be denied for the following reasons: (1) lifting the stay will lead to duplicative litigation that will waste judicial resources, risk inconsistent results, and unnecessarily entangle the proceedings of multiple jurisdictions; (2) this issue can adequately be resolved by this court without resort to the Kansas Supreme Court; (3) plaintiff should not be allowed to seek certification here because he did not seek it until after the bankruptcy court issued its order; and (4) certification is unnecessary because the bankruptcy court correctly applied Kansas law regarding intangible trespass.
This court has the power to certify questions to the Kansas Supreme Court pursuant to K.S.A. 60-3201. This statute provides that the Kansas Supreme Court may answer questions of law certified to it, when requested by the certifying court "if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state." K.S.A. 60-3201.
Certification of questions of law is discretionary with the trial court. Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988) ("Whether to certify a question of state law to the state supreme court is within the discretion of the federal court. Certification is not to be routinely invoked whenever a federal court is presented with an unsettled question of state law.") (citations omitted). In fact, "[c]ertification is never compelled, even when there is not state law governing an issue." Boyd Rosene Assocs., Inc. v. Kansas Municipal Gas Agency, 178 F.3d 1363, 1365 (10th Cir. 1999).
After a careful examination of the circumstances, the court is not persuaded that certification of this issue to the Kansas Supreme Court is necessary. This is an issue that can be, and has been, decided by other courts without any guidance from the highest court in Kansas. This court is simply unwilling to certify this issue at this time. Accordingly, plaintiff's motion for limited relief from the stay shall be denied.
IT IS THEREFORE ORDERED that plaintiff's motion for limited relief from stay of proceedings (Doc. # 137) be hereby denied.
IT IS SO ORDERED.