United States District Court, S.D. Indiana, New Albany Division
STEPHEN R. WEST, Plaintiff,
LOUISVILLE GAS & ELECTRIC COMPANY, CHARTER COMMUNICATIONS, INC., INSIGHT KENTUCKY PARTNERS II, L.P., TIME WARNER CABLE, Defendants. LOUISVILLE GAS & ELECTRIC COMPANY, Cross Claimant,
CHARTER COMMUNICATIONS, INC., INSIGHT KENTUCKY PARTNERS II, L.P., TIME WARNER CABLE, Cross Defendants.
ENTRY ON DEFENDANT CHARTER COMMUNICATIONS,
INC.'S, INSIGHT KENTUCKY PARTNERS II, L.P.'S, AND
TIME WARNER CABLE'S MOTION TO DISMISS
RICHARD L. YOUNG, JUDGE.
11, 2016, Plaintiff, Stephen R. West, filed a complaint in
state court against Defendant, Louisville Gas & Electric
Company (“LGEC”), seeking a declaration that LGEC
exceeded the scope of its easement by installing fiber optic
cables on its preexisting utility infrastructure.
(See Filing No. 1-1, State Court Record at 5-8).
Plaintiff also sought damages through a variety of additional
claims. (Id. at 9-12). After the case was removed to
federal court, (Filing No. 1), Plaintiff amended his
complaint and added Charter Communications, Inc., Insight
Kentucky Partners II, L.P., and Time Warner Cable
(collectively “Insight”) as defendants. (Filing
No. 27). Insight now moves to dismiss all of Plaintiff's
claims arguing that they are foreclosed by the Cable
Communications Policy Act of 1984.
reasons set forth below, the court GRANTS
Insight's Motion to Dismiss.
owns a parcel of real estate (the “Property”)
located at 51 Arctic Springs Road in Jeffersonville, Indiana.
(Filing No. 33, Amended Complaint at ¶ 8). The Property
sits adjacent to the Ohio River and contains a 248-foot tower
that LGEC utilizes to run utility lines between Kentucky and
Indiana. (Id. ¶ 9). LGEC's maintenance of
this infrastructure is governed by an easement, the meaning
of which the parties vehemently dispute. Accordingly, a
careful look at its history is necessary.
easement originated in 1938, when the Interstate Public
Service Realty Company (“IPSRC”) granted the
Public Service Company of Indiana (“PSCI”) an
easement across the Property (the “Easement”).
(Id. ¶ 10). Specifically, the Easement provides
that the IPSRC:
hereby grants and conveys unto Public Service Company of
Indiana . . . and unto its successors and assigns, a
right-of-way and perpetual easement to maintain, operate,
renew, repair and remove a line or lines of poles and towers
and all necessary equipment, wires, cables and appurtenances
in connection therewith, for the transmission, distribution
and delivery of electrical energy to the Grantee and other
persons and concerns and to the public in general for light,
heat, power, telephone and/or other purposes.
(Filing No. 33-1, Exhibit A).
a series of transactions, Plaintiff's parents acquired
the Property in the early 1970s. (Complaint ¶ 12). In
1976, PSCI assigned its rights to the Ohio Valley
Transmission Corporation (“OVTC”), a company that
merged into LGEC. (Id. ¶¶ 2, 13; Filing
No. 33-1, Exhibit B). That same year, Plaintiff's parents
and OVTC entered into a Supplemental Deed of Easement (the
“1976 Supplemental Agreement”), which addressed
the parties' rights under the Easement. (Id.
¶ 14). The recitals of the 1976 Supplemental Agreement
explain that OVTC wishes “to replace the existing
transmission lines and upgrade its facilities and wishes to
update said easements so as to specifically define the rights
of the parties and have of record the names of the
present-day holders of title to the property over which it
presently has a perpetual easement.” (Filing No. 33-3,
Exhibit C at 1). The 1976 Supplemental Agreement then
Grantors hereby convey and re-convey to the Company all
rights heretofore acquired by the Company or its
predecessors, including the perpetual right, privilege and
easement to enter upon, construct, reconstruct, replace,
upgrade, maintain, operate, and/or remove, one or more lines
for the transmission of electrical energy, together with any
and all towers, poles, guys, stubs, anchors, foundations, and
other necessary equipment, fixtures and appurtenances over,
across, and within the existing 100 feet wide easement, a
part of or all of which crosses the property of Grantors . .
(Id. at 2).
1990, LGEC approached Plaintiff's parents again. This
time LGEC sought their consent to enter into a Second
Supplemental Deed of Easement, which would have specifically
permitted LGEC to “upgrade and remove communication and
telephone systems . . . .” (Filing No. 33-4, Exhibit D
at 1). Plaintiff's parents refused the invitation and the
Second Supplemental Deed of Easement was never executed.
(Complaint ¶ 16). Subsequently, Plaintiff acquired the
Property from his parents. (Id. ¶ 8).
enters the picture ten years later. In 2000, LGEC contracted
with Insight and granted it the right to run fiber optic
cables across LGEC's existing infrastructure.
(Id. ¶ 17; see also Filing No. 33-5,
Exhibit E, Insight Agreement at 1). Plaintiff was none too
pleased by this arrangement. He filed the present action
against LGEC arguing that the installation (and continued
use) of the fiber optic cables exceeds the scope of
LGEC's Easement. Specifically, Plaintiff maintains that
the Easement only permits LGEC to maintain electrical energy,
not fiber optics. Plaintiff subsequently amended his
complaint and added Insight as a defendant. (Filing No. 33,