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MCI Communications Inc. v. Carl Bolander & Sons LLC

United States District Court, D. Minnesota

June 12, 2019

MCI COMMUNICATIONS, INC. and MCIMETRO ACCESS TRANSMISSION SERVICES CORP., Plaintiffs,
v.
CARL BOLANDER & SONS LLC, Defendant.

          JAMES J. PROSZEK, HALL, ESTILL, HARDWICK, GABLE, GOLDEN, & NELSON, P.C., AND SETH J. S. LEVENTHAL, LEVENTHAL PLLC, FOR PLAINTIFFS.

          ERIC J. STEINHOFF, LIND JENSEN SULLIVAN & PETERSON, PA, FOR DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM CHIEF JUDGE

         Plaintiffs 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.

         Bolander 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).

         The 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 Bolander's Motion.

         BACKGROUND

         I. FACTUAL BACKGROUND

         MCI is 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.)

         On 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.¶ 22.)

         II. PROCEDURAL BACKGROUND

         MCI 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.)

         United 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 *3.

         On 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. ¶¶ 41-42.)

         Bolander filed its Motion to Dismiss on November 8, 2018. (Mot. to ...


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