The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
This case has had a tortured history. The plaintiffs, Dennis Koyle, Charles Turner, and the Harris Ranch, filed this class action suit nine years ago, alleging that Defendant Level 3 Communications*fn1 improperly laid fiber optic cable over their property, along a railway easement, without their permission. They seek monetary relief and an injunction prohibiting Level 3 from operating or maintaining the cable.
On December 5, 2005, this Court certified a hybrid class pursuant to Rule 23(b)(2) & (3). Following class certification, the parties requested and were granted a lengthy stay to allow the parties to settle all claims in this case and other matters nationwide. The settlement efforts proved unfruitful, and on April 2, 2010, the Court ordered Plaintiffs to submit a plan to address the issue of providing notice to absent class members. Plaintiffs now seek approval of a plan to provide notice to the current owners of land adjacent to the railroad rights-of-way where Level 3 has installed cable. (Docket No. 164).
On August 3, 2010, the Court held an in-person Case Management Conference. During this hearing, counsel and the Court discussed proposed methodology for directing notice to class members, as well as other case management issues.
For the reasons discussed below, the Court will approve the four part notice plan proposed by Plaintiffs, with one exception: those receiving notice will include all landowners who owned the property underlying or adjacent to the rights of way where the fiber-optic cable is installed at any time from January 1, 2000 until the present.
In addition, in accordance with the agreements reached in the August 3, 2010 hearing, and to further the efficient administration of this matter, the Court directs the parties to file any dispositive motion raising issues that will narrow the focus of the case and streamline the litigation by September 8, 2010.
1. Proposed Methodology for Notifying Class Members of Pending Class Action
In an earlier decision, this Court certified the following class: "All owners of land in Idaho that underlies or is adjacent to a railroad right-of-way within which defendants own, operate, or use fiber optic cable." (Memorandum Decision and Order, Dkt. 122 at 14.) Plaintiffs now propose a four-part plan to provide notice to the certified class: (1) detailed notice be directly mailed to current landowners identified in a database complied by Level 3, which lists the owners of the property underlying or adjacent to the rights of way where the fiber-optic cable is installed; (2) summary notice placed in daily newspapers with significant circulationwithin the class area; (3) neutral information website maintained to provide class members with a copy of the detailed notice, an exclusion form, relevant court pleadings, a cooperatively prepared map showing location of fiber-optic cable and list of cities and counties where cable is located, and information on class counsel; and (4) neutral court-approved press release disseminated to potentially extend awareness via news stories.
Rule 23(e)(1)(B) provides that "[t]he Court must direct notice in a reasonable manner to all class members who would be bound by the proposed settlement, voluntary dismissal, or compromise." Fed. R. Civ. P. 23(e)(1)(B). The purpose of mandatory notice to the class is "to fulfill requirements of due process." Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). This is true even where giving individual notice would require extra work or entail extra expense for class plaintiffs. Eisen, 417 U.S. at 176.
Level 3 previously compiled a list of the owners of the property underlying or adjacent to the rights of way where the fiber-optic cable is installed, and Plaintiffs argue that it is reasonable to provide Detailed Notice (Ex. B, 164-2) by direct mail to those owners. This list of owners is stored in a DMS database created in 2003. Plaintiffs suggest that Class Counsel update the database within 30 days to account for any property transactions ...