United States District Court, D. Minnesota
MCI COMMUNICATIONS, INC. and MCIMETRO ACCESS TRANSMISSION SERVICES CORP., Plaintiffs,
CARL BOLANDER & SONS LLC, Defendant.
J. PROSZEK, HALL, ESTILL, HARDWICK, GABLE, GOLDEN, &
NELSON, P.C., AND SETH J. S. LEVENTHAL, LEVENTHAL PLLC, FOR
J. STEINHOFF, LIND JENSEN SULLIVAN & PETERSON, PA, FOR
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE
MCI Communications Services, Inc. and MCImetro Access
Transmission Services Corp. (collectively “MCI”)
bring an action for trespass, negligence, statutory liability
as an excavator, and breach of contract/third-party
beneficiary against Defendant Carl Bolander & Sons LLC
(“Bolander”). MCI seeks damages because Maverick
Cutting & Breaking LLC (“Maverick”), a
subcontractor hired by and working at the direction of
Bolander, severed two of MCI's fiber-optic
telecommunications cables while performing concrete
sawcutting on April 14, 2015. MCI filed this action more than
three years later, on October 22, 2018.
moves to dismiss MCI's action under Federal Rule of Civil
Procedure 12(b)(6), arguing that it was filed outside the
two-year statute of limitations set forth by Minn. Stat
§ 541.051, subd. 1(a).
Court will find that section 541.051 does not apply to
MCI's action because, while the sawcutting in this case
constitutes an improvement to real property, MCI's injury
did not arise out of a “defective and unsafe
condition” of the improvement. The Court will thus deny
a telecommunications company that owns and operates a
nationwide network of mostly underground fiber-optic cables.
(Compl. ¶ 8, Oct. 22, 2018, Docket No. 1.) The injury
underlying this action arose when two of MCI's
fiber-optic cables were cut during a construction project to
replace several bridges in the City of St. Paul (the
“Project”). (Id. ¶¶ 11, 24.)
The Project included the removal and replacement of the
bridge at the intersection of Wabasha Street and Kellogg
Boulevard (the “Intersection”). (Id.
¶ 11.) The City of St. Paul contracted with Kraemer
North America, LLC, (“Kraemer”) to serve as the
general contractor for the Project. (Id. ¶ 14.)
Kraemer entered into a subcontract agreement with Bolander to
perform some of the work on the Project, including removal of
the bridge at the Intersection. (Id. ¶ 18.)
Removing the bridge, however, first required the removal of
pavement around the Intersection. (Id.) Bolander
subcontracted with Maverick to complete this task.
(Id. ¶ 20.)
April 14, 2015, Maverick severed two of MCI's fiber-optic
cables while sawcutting pavement at the Intersection.
(Id. ¶ 24.) Maverick operated under the
supervision and direction of Bolander. (Id.¶
first brought an action against Maverick on April 11, 2017,
alleging trespass, negligence, and statutory liability as an
excavator. MCI Commc'ns Servs., Inc. v. Maverick
Cutting & Breaking LLC, No. CV 17-1117 (JRT/SER),
2018 WL 4562471, at *1 (D. Minn. Sept. 24, 2018). On April
26, 2018, a little over a year after MCI brought claims
against Maverick and more than three years after the incident
occurred, MCI moved to amend its complaint to assert claims
for relief against Bolander and Kraemer. Id.
Maverick opposed MCI's motion, arguing that (1) MCI
failed to meet Rule 16(b)(4)'s good cause threshold and
(2) that the claims against Bolander and Kraemer were barred
by section 541.051's two-year statute of limitations.
(Civil No. 17-1117, Defs.' Mem. Opp. at 6-13, May 3,
2018, Docket No. 29.)
States Magistrate Judge Steven E. Rau denied MCI's motion
to amend based on MCI's failure to meet Rule
16(b)(4)'s threshold burden of good cause. MCI
Commc'ns Servs., Inc. v. Maverick Cutting & Breaking
LLC, No. 17-CV-1117 (JRT/SER), 2018 WL 3000339, at *3
(D. Minn. June 15, 2018). Magistrate Judge Rau did not
address the statute of limitations argument. See Id.
The Court affirmed the Magistrate Judge's decision.
MCI Commc'ns Servs., Inc., 2018 WL 4562471 at
October 22, 2018, MCI brought this action against Bolander,
alleging four counts. (Compl.) First, MCI alleges that
Bolander trespassed when it directed Maverick to cut directly
across the orange markings showing the cables'
approximate location at the Intersection. (Id.
¶¶ 21-28.) Second, MCI alleges that Bolander acted
negligently in failing to take reasonable steps to determine
the exact location of the cables and failing to adequately
plan, train, and supervise its employees and its
subcontractor. (Id. ¶¶ 31-32.) Third, MCI
seeks to hold Bolander statutorily liable as an excavator
under Minn. Stat. § 216D.06. (Id. ¶¶
36-39.) Fourth, MCI alleges that Bolander breached its
contract with Kraemer and that MCI is entitled to bring such
a claim because it was an intended beneficiary of the
contract between Bolander and Kraemer. (Id.
filed its Motion to Dismiss on November 8, 2018. (Mot. to