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Dale Neidhardt, and All Others Similarly Situated v. Tci Midcontinent LLC

April 20, 2011


The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court


Before the Court is the Plaintiff's "Motion for Class Certification" filed on August 27, 2010. See Docket No. 12. The Defendants filed a response in opposition to the motion on September 17, 2010. See Docket No. 19. The Plaintiff filed a reply brief on October 21, 2010. See Docket No. 26. On January 25, 2011, the Defendants filed a "Motion for Oral Argument." See Docket No. 38. For the reasons set forth below, the Court denies the motion for class certification.


In 1996, the defendants TCI Midcontinent LLC and Midcontinent Communications Investors, LLC (collectively "Midcontinent") began installing fiber optic cable facilities in North Dakota. To date, Midcontinent has installed more than 1,000 miles of fiber optic cable in North Dakota. Erin Hayes, Director of Corporate Construction for Midcontinent, stated in an affidavit:

An overwhelming majority of the fiber optic cable installed in areas outside of cities and municipalities has been installed within highway rights-of-way. For the small amount of fiber optic cable not installed within rights-of-way in rural North Dakota, it was installed on private property with permission from the private landowner.

See Docket No. 29-1. Hayes stated that Midcontinent obtained permission from the proper governmental authorities before installing fiber optic cable facilities. She also asserted that many landowners adjacent to rights-of-way were informed of Midcontinent's plans to install fiber optic able facilities, either through public notices, public meetings, or individual meetings with right-ofway specialists. Paul Erickson, Senior Construction Coordinator for Midcontinent, testified in a deposition that if it was necessary to bury fiber optic cable on private property outside a right-ofway, Midcontinent would identify and contact the landowners to obtain easements. See Docket No. 13-8, p. 34.

Plaintiff Dale Neidhardt contends that he owns a parcel of land in Morton County, North Dakota, described as "[t]he SE 1/4 and SW 1/4 of Section 13, Township 139 North, Range 85 West." See Docket No. 21. On May 10, 2004, Midcontinent obtained permission from the Morton County Commission to install fiber optic cable in the right-of-way along County Road 139. See Docket No. 13-1. Neidhardt asserts that Midcontinent entered onto his land and installed fiber optic cable without his permission.

On November 24, 2009, Neidhardt filed a class action complaint against Midcontinent. See Docket No. 1. On August 27, 2010, Neidhardt filed a motion to certify the following class:

Landowners who own land in North Dakota subject to highway right of ways [sic] in which Midcontinent has installed its fiber optics or telecommunications cable without obtaining permission from the landowner. The class does not include cable that is installed in railroad right of way nor within any municipality in North Dakota.

See Docket No. 12. In the first amended complaint, filed on October 1, 2010, Neidhardt seeks to quiet title to the class members' land; damages in excess of $5,000,000 for use and occupation of the property; damages for Midcontinent's unjust enrichment; and a declaratory judgment that Midcontinent has no right to occupy the property. See Docket No. 21. Midcontinent opposes certification of the class and contends that the proposed class would be unmanageable because determining the identity of class members would require extensive factual inquiries.


Rule 23 of the Federal Rules of Civil Procedure governs a district court's consideration of a motion for class certification. The decision whether to certify a class action is left to the district court's "broad discretion." Rattray v. Woodbury Cnty, Iowa, 614 F.3d 831, 835 (8th Cir. 2010) (citing In re Milk Prods. Antitrust Litig., 195 F.3d 430, 436 (8th Cir. 1999); Bishop v. Comm. on Prof'l Ethics & Conduct, 686 F.2d 1278, 1288 (8th Cir. 1982)). In determining whether to certify a class action, "the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). "[T]he court must conduct a 'rigorous analysis' to ensure that the prerequisites of Rule 23 are satisfied." Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006) (quoting Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 161 (1982)). "The district court may grant a motion to certify a class action only if the putative class representative satisfies all four of the requirements set forth in Federal Rule of Civil Procedure 23(a), and the class action satisfies one of the three subsections of Federal Rule of Civil Procedure 23(b)." Rattray, 614 F.3d at 834-35 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997)). The plaintiff bears the burden of satisfying the requirement of Rule 23. Coleman v. Watt, 40 F.3d 255, 259 (8th Cir. 1994).



Rule 23(a) of the Federal Rules of Civil Procedure sets forth the prerequisites to a class action. It provides:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on ...

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