IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION CHASE BARFIELD, et al., ) ) Plaintiffs, ) ) v. ) Case No. 2:11-cv-4321NKL ) SHO-ME POWER ELECTRIC ) COOPERATIVE, et al., ) ) Defendants. ) THE SHO-ME DEFENDANTS JOINT ANSWER TO FIRST AMENDED CLASS ACTION COMPLAINT COME NOW Defendants, Sho-Me Power Electric Cooperative and Sho-Me Technologies, LLC (collectively the Sho-Me Defendants ), and file this Joint Answer to the Plaintiffs First Amended Class Action For ease of reference, this Answer uses the same subject matter headings and paragraph numbers as the First Amended Class Action Complaint (the Complaint ). Shorthand names and terms as defined in the Complaint are used in this Joint Answer. PARTIES 1. 3. The Sho-Me Defendants specifically deny the allegations in paragraphs 1 through 3 of the Complaint that they and KAMO are operating commercial fiber-opticcommunication networks independent of the transmission or distribution of electricity. The Sho-Me Defendants do not have sufficient knowledge to admit or deny the remaining allegations in paragraphs 1 through 3 of the 4. 7. The Sho-Me Defendants admit the allegations of paragraphs 4 through 7 of the Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 1 of 12
JURISDICTION AND VENUE 8. & 9. The Sho-Me Defendants admit that so long as KAMO Electric and K-Power Net are joined as defendants in this action, this Court has subject matter jurisdiction. Otherwise, the Sho-Me Defendants have insufficient knowledge to admit or deny the factual allegations in paragraphs 8 and 9 of the CLASS-ACTION ALLEGATIONS 10. No response is required to paragraph 10 of the Complaint which is a legal conclusion. 11. 19. The Sho-Me Defendants deny the allegations of paragraphs 11 through 19 of the Complaint including the allegations in each of the lettered subparagraphs in paragraphs 13, 15, 16 and 19 of the FACTS 20. The Sho-Me Defendants deny that Plaintiff Robertson owns tax parcel 16703600000002700 consisting of 97 acres of land in Miller County, Missouri. The Sho-Me Defendants do not have sufficient knowledge to admit or deny the allegations in paragraph 20 with respect to Plaintiff Barfield. The Sho-Me Defendants admit the remaining allegations in paragraph 20 of the 21. The Sho-Me Defendants admit that Sho-Me Power owns duly recorded easements to use portions of Robertson s and the Biffles land, and deny the remaining allegations in paragraph 21 of the 22. The Sho-Me Defendants admit that Sho-Me Power installed fiber-optic cable on the electric transmission poles on its easements over the Biffles and Robertson s property, and deny the remaining allegations of paragraph 22 of the 23. The Sho-Me Defendants admit that the words in quotation marks in paragraph 23-2 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 2 of 12
of the Complaint are accurate but taken out of context from Sho-Me Tech s website, and deny the remaining allegations in paragraph 23 of the 24. The Sho-Me Defendants do not have sufficient knowledge to admit or deny the allegations contained in paragraph 24 of the 25. The Sho-Me Defendants admit that Sho-Me Power helped an ad hoc group of rural electric distribution cooperatives called CBN to advertise and promote the expansion of high-speed data services in rural Missouri, maintain a website, hold educational meetings, train employees and assist local schools and medical facilities to participate in the federal E-Rate program to reduce their costs. The name CBN or Cooperatives Broadband Network was only a name, was never incorporated, had no legal memberships and did not share any profits or losses between the rural electric cooperatives or their telecommunications subsidiaries. The CBN website was closed in 2008. The Sho-Me Defendants deny that the KAMO Defendants were members of CBN or that they ever financially assisted CBN. The Sho-Me Defendants deny the remaining allegations in paragraph 25 of the 26. The Sho-Me Defendants deny the allegations contained in paragraph 26 of the 27. The Sho-Me Defendants admit that Sho-Me Tech has entered into at least 30 interconnection agreements with companies that own or operate fiber-optic lines to enable its customers to access the internet or telecommunication networks. One of those interconnection agreements is with K-Power Net. The terms of its interconnection agreement with K-Power Net are similar to the terms of Sho-Me Tech s other interconnection agreements and do not give K- Power Net any more favorable terms or prices. 28. The Sho-Me Defendants admit that Sho-Me Power has installed many miles of - 3 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 3 of 12
fiber-optic cable, which is an integral part of its electric transmission system, on poles located on easements it owns. The Sho-Me Defendants deny the remaining allegations in paragraph 28 of the 29. 33. The Sho-Me Defendants deny the allegations in paragraphs 29 through 33 of the COUNT I (Declaratory Judgment) 34. Paragraph 34 of the Complaint does not call for a response. 35. 37. The Sho-Me Defendants deny the allegations in paragraphs 35 through 37 of the COUNT II (Trespass) 38. Paragraph 38 of the Complaint does not call for a response. 39. 42. The Sho-Me Defendants deny the allegations in paragraphs 39 through 42 of the COUNT III (Unjust Enrichment) 43. Paragraph 43 of the Complaint does not call for a response. 44. 45. The Sho-Me Defendants deny the allegations in paragraphs 44 and 45 of the COUNT IV (Injunctive Relieve) 46. Paragraph 46 of the Complaint does not call for a response. 47. 49. The Sho-Me Defendants deny the allegations in paragraphs 47 through 49 of the - 4 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 4 of 12
PUNITIVE DAMAGES 50. Paragraph 50 of the Complaint does not call for a response. 51. The Sho-Me Defendants deny the allegations in paragraph 51 of the AFFIRMATIVE DEFENSES Each and every allegation of the Complaint not expressly admitted is hereby denied. Additionally, for their defenses to the Complaint, the Sho-Me Defendants state as follows: FIRST DEFENSE The Complaint fails to state a claim for which relief may be granted for the reasons set forth in the Sho-Me Defendants Joint Motion to Dismiss for Failure to State a Claim and Motion for More Definite Statement. SECOND DEFENSE The claims of Plaintiffs and/or putative class members fail because, as to the Sho-Me Defendants alone, federal subject matter jurisdiction is lacking. THIRD DEFENSE The claims of Plaintiffs and/or putative class members fail because any installation and/or use of fiber optics on their property by a Sho-Me Defendant is authorized by the terms of a valid express easement. FOURTH DEFENSE The claims of Plaintiffs and/or putative class members fail pursuant to the doctrines of actual and/or implied consent and/or ratification. FIFTH DEFENSE The claims of Plaintiffs and/or putative class members fail for lack of standing. SIXTH DEFENSE The Sho-Me Defendants are not potentially liable for any act or omission by either of the - 5 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 5 of 12
KAMO Defendants. SEVENTH DEFENSE The Sho-Me Defendants are not proper parties to this action for any fiber optic line or act or omission of or by either KAMO Defendant. EIGHTH DEFENSE No joint venture exists between the Sho-Me Defendants and the KAMO Defendants. NINTH DEFENSE There is no alleged or legitimate basis for the suggestion in the Complaint that joint liability may be appropriate in this case. TENTH DEFENSE The claims of Plaintiffs and/or putative class members fail because Sho-Me s use of fiber optics is intangible and results in no physical interference with the Plaintiffs property. ELEVENTH DEFENSE The claims of Plaintiffs and/or putative class members fail because Sho-Me s use of fiber optics is intangible and imposes no additional burden to the easement. TWELFTH DEFENSE The claims of Plaintiffs and/or putative class members fail because Sho-Me s use of fiber optics affects, at most, only the degree of use and not the character of use. THIRTEENTH DEFENSE The claims of Plaintiffs and/or putative class members fail because the main object of Sho-Me s fiber optic system is for electrical transmission purposes that used to be served by old technology that is no longer available; e.g., communications between unmanned stations and communications between the dispatch center and substations. - 6 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 6 of 12
FOURTEENTH DEFENSE The claims of Plaintiffs and/or putative class members fail because Mo. Rev. St. 523.283.1 does not trump (either textually or by legal effect) pre-existing case law. FIFTEENTH DEFENSE The claims of Plaintiffs and/or putative class members fail because they seek to thwart the strong public policy in favor of expanding access to new communications technologies. SIXTEENTH DEFENSE The placement of fiber optics inures to the benefit of cooperative members, which include Plaintiffs and putative class members. SEVENTEENTH DEFENSE The claims of Plaintiffs and/or putative class members may fail because of the doctrine of adverse possession. EIGHTEENTH DEFENSE The claims of Plaintiffs and/or putative class members may fail because of the doctrine of prescriptive and/or implied easements. NINTEENTH DEFENSE The declaratory and/or injunctive relief claims of Plaintiffs and/or putative class members fail because they have an adequate remedy at law. TWENTIETH DEFENSE Each Plaintiff and/or putative class member whose property is subject to an express easement with a Sho-Me Defendant lacks a cognizable claim for quasi-contractual relief (i.e., unjust enrichment). TWENTY-FIRST DEFENSE Plaintiffs claims and/or those of the putative class may be barred in whole or in part by - 7 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 7 of 12
the doctrines of accord and satisfaction, payment and release. TWENTY-SECOND DEFENSE Plaintiffs claims and/or those of the putative class may be barred by applicable statutes of limitations or repose and/or the doctrine of laches. TWENTY-THIRD DEFENSE Plaintiffs and/or putative class members have failed to mitigate their damages, if any. TWENTY-FOURTH DEFENSE Plaintiffs and/or putative class members, by their actions or omissions, including but not limited to their own personal use of fiber optic communications reliant upon Sho-Me s fiber optic system, have waived the right to recover and/or are estopped from recovering against the Sho-Me Defendants. TWENTY-FIFTH DEFENSE Plaintiffs claims and/or those of the putative class are barred in whole or in part on the grounds Plaintiffs and class members would be unjustly enriched if they were allowed to recover from the Sho-Me Defendants. TWENTY-SIXTH DEFENSE The claims of Plaintiffs and/or putative class members fail in whole or in part because of the lack of any ascertainable loss of money or property. TWENTY-SEVENTH DEFENSE The Sho-Me Defendants are entitled to a setoff to the extent that Plaintiffs or any putative class member owes money to a Sho-Me Defendant. TWENTY-EIGHTH DEFENSE The claims of some putative class members require contractual arbitration. - 8 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 8 of 12
TWENTY-NINTH DEFENSE This action may not be maintained as a class action because the many requirements incorporated into Rule 23 of the Federal Rules of Civil Procedure are not met in this case. THIRTIETH DEFENSE All of the easements are exclusive and apportionable. THIRTY-FIRST DEFENSE The claims of Plaintiffs and/or putative class members may fail due to their failure to join necessary and/or indispensable parties. THIRTY-SECOND DEFENSE There is no legal, contractual or factual basis for any award of attorney fees in favor of Plaintiffs and/or members of the class they seek to represent. THIRTY-THIRD DEFENSE There is no legal, contractual or factual basis for any award of exemplary or punitive damages in favor of Plaintiffs and/or members of the class they seek to represent. THIRTY-FOURTH DEFENSE Plaintiffs claim for punitive damages cannot be sustained because an award of punitive damages under Missouri law would violate the Sho-Me Defendants procedural and substantive Due Process and Equal Protection rights under the Fifth and Fourteenth Amendments to the United States Constitution and the Sho-Me Defendants Due Process and Equal Protection rights under corresponding provisions of the Missouri Constitution, and would be improper under the common law and public policies of the United States and Missouri. Moreover, the foregoing considerations, and considerations of Due Process, comity, and state sovereignty, bar any attempts to punish the Sho-Me Defendants except to the extent the alleged conduct had a direct impact in this state and a direct nexus to the specific harm alleged by Plaintiffs in this case. - 9 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 9 of 12
THIRTY-FIFTH DEFENSE No punishment may be imposed for conduct that cannot form the basis for an underlying claim for liability, including, but not limited to, conduct that occurred outside the applicable statute of limitations. Imposition of punitive damages under such circumstances would violate the Sho-Me Defendants procedural and substantive Due Process and Equal Protection rights under the Fifth and Fourteenth Amendments to the United States Constitution and the Sho-Me Defendants Due Process and Equal Protection rights under corresponding provisions of the Missouri Constitution. Furthermore, Plaintiffs claim for punitive damages cannot be sustained under these same principles because Missouri does not provide constitutionally adequate standards and instructions for determining the imposition and amount of punitive damages. THIRTY-SIXTH DEFENSE The Sho-Me Defendants reserve the right to raise additional affirmative defenses as may be established during discovery and by the evidence in this case. - 10 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 10 of 12
Respectfully submitted, THOMPSON COBURN LLP By:/s/ Robert J. Wagner W. Stanley Walch, #17166 Christopher Hohn, #44124 Robert J. Wagner, #46391 Stephen A. D Aunoy, #54961 One US Bank Plaza St. Louis, MO 63101-1693 314-552-6000 314-552-7000 (fax) swalch@thompsoncoburn.com chohn@thompsoncoburn.com rwagner@thompsoncoburn.com sdaunoy@thompsoncobur.com Dana L. Kollar, #43147 ANDERECK, EVANS, WIDGER, JOHNSON & LEWIS, LLC 700 East Capitol Ave. Jefferson City, MO 65102-1438 573-634-3422 573-634-7822 (fax) dlkollar@aempb.com Terry M. Evans ANDERECK, EVANS, WIDGER, JOHNSON & LEWIS, LLC 119 East Main Street P.O. Box 654 Smithville, MO 64089 816-532-3895 816-532-3899 (fax) tevans@lawofficemo.com Attorneys for Defendants Sho-Me Power Electric Cooperative and Sho-Me Technologies, LLC - 11 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 11 of 12
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served electronically by means of the Court s CM/ECF electronic filing system on July 19, 2012, on all counsel of record. /s/ Robert J. Wagner - 12 - Case 2:11-cv-04321-NKL Document 85 Filed 07/19/12 Page 12 of 12