Case 4:20-cv-02703 Document 1 Filed on 08/01/20 in TXSD Page 1 of 8
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`CENTURYLINK COMMUNICATIONS,
`LLC f/k/a QWEST COMMUNICATIONS
`COMPANY, LLC,
`Plaintiff,
`
`
`v.
`
`ERVIN CABLE CONSTRUCTION, LLC,
`and MACMA HDD, LLC,
`Defendants.
`
`§
`§
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`Case No. 20-cv-2703
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`PLAINTIFF’S ORIGINAL COMPLAINT
`
`Plaintiff CenturyLink Communications, LLC f/k/a Qwest Communications
`
`Company, LLC (“CenturyLink”) files this original complaint against Defendants, Ervin
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`Cable Construction, LLC, (“Ervin Cable”), and MacMa HDD, LLC, (“MacMa”)
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`(collectively, “Defendants”) arising from damages to CenturyLink’s underground fiber-
`
`optic cables in Houston, Texas, caused by Defendants’ wrongful acts and omissions.
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`PARTIES
`
`1.
`
`CenturyLink Communications, LLC
`
`f/k/a Qwest Communications
`
`Company, LLC, is a limited liability company organized and existing under the laws of
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`the State of Delaware with a principal place of business in Monroe, Louisiana. The
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`citizenship of all members of CenturyLink Communications, LLC, is Louisiana.
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`2.
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`Ervin Cable Construction, LLC, is a limited liability company and existing
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`under the laws of the State of Delaware with a principle place of business in Irving, Texas.
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`1
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`
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`CENTURYLINK COMMUNICATIONS,
`LLC f/k/a QWEST COMMUNICATIONS
`COMPANY, LLC,
`Plaintiff,
`
`
`v.
`
`ERVIN CABLE CONSTRUCTION, LLC,
`and MACMA HDD, LLC,
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`
`Case No. 20-cv-2703
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`Plaintiff CenturyLink Communications, LLC f/k/a Qwest Communications
`
`Company, LLC (“CenturyLink”) files this original complaint against Defendants, Ervin
`
`Cable Construction, LLC, (“Ervin Cable”), and MacMa HDD, LLC, (“MacMa”)
`
`(collectively, “Defendants”) arising from damages to CenturyLink’s underground fiber-
`
`optic cables in Houston, Texas, caused by Defendants’ wrongful acts and omissions.
`
`PARTIES
`
`1.
`
`CenturyLink Communications, LLC
`
`f/k/a Qwest Communications
`
`Company, LLC, is a limited liability company organized and existing under the laws of
`
`the State of Delaware with a principal place of business in Monroe, Louisiana. The
`
`citizenship of all members of CenturyLink Communications, LLC, is Louisiana.
`
`2.
`
`Ervin Cable Construction, LLC, is a limited liability company and existing
`
`under the laws of the State of Delaware with a principle place of business in Irving, Texas.
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`1
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`Case 4:20-cv-02703 Document 1 Filed on 08/01/20 in TXSD Page 2 of 8
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`Upon information and belief, the members of Ervin Cable Construction, LLC, and citizens
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`of Florida. Ervin Cable Construction, LLC, may be served with process via its registered
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`agent, C T Corporation System, at 1999 Bryan Street, Suite 900, Dallas, TX 75201, or
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`wherever it may be found.
`
`3.
`
`MacMa HDD, LLC n/k/a CEC Infrastructure Group, LLC, is a limited
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`liability company and existing under the laws of the State of Texas. Upon information
`
`and belief, the members of MacMa HDD, LLC n/k/a CEC Infrastructure Group, LLC, are
`
`citizens of Texas. MacMa HDD, LLC n/k/a Infrastructure Group, LLC, may be served
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`with process via its registered agent, K. Ray Waddell, at 1275 Valley View Lane, Irving,
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`Texas 75061, or wherever he may be found.
`
`JURISDICTION AND VENUE
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`4.
`
`The court has personal jurisdiction, specific and general, over Defendants
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`in this action because a substantial part of the events or omissions giving rise to the claim
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`occurred in Houston, Harris County, Texas, and Defendants have engaged
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`in
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`“continuous and systematic” activities with the State of Texas as evidenced by their
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`conducting business and offering services in Texas.
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`5.
`
`The court has subject matter jurisdiction over this action under 28 U.S.C.
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`§ 1332(a) because the matter in controversy exceeds the sum or value of $75,000, exclusive
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`of interest and costs, and is between citizens of different States. Specifically, as a result of
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`Defendants’ acts and omissions, CenturyLink has sustained substantial damage to its
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`2
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`Case 4:20-cv-02703 Document 1 Filed on 08/01/20 in TXSD Page 3 of 8
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`underground fiber-optic telecommunication cable made the subject of this lawsuit, which
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`resulted in actual damages to CenturyLink in excess of $100,000. Moreover, CenturyLink
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`Communications, LLC, is a citizen of Louisiana, Ervin Cable Construction, LLC, is a
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`citizen of Florida, and MacMa HDD, LLC, is a citizen of Texas.
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`6.
`
`Venue is proper in the court under 28 U.S.C. § 1391(b)(2) because “a
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`substantial part of the events or omissions giving rise to the claim occurred” in this
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`judicial district.
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`FACTUAL BACKGROUND
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`7.
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`CenturyLink
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`is a global communications provider
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`that provides
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`communications to enterprise, government, and carrier customers.
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`8.
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`CenturyLink’s telecommunication services are provided through, among
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`other means, extensive nationwide fiber networks consisting of, in part, underground
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`fiber-optic telecommunications conduits and cables.
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`9.
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`CenturyLink’s underground facility, including underground fiber-optic
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`telecommunication conduits and cables, made the subject of this action was installed,
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`operated, and maintained, in part, at or near the intersection of FM 529 and Barker
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`Cypress Road in Houston, Harris County, Texas (the “Underground Facility”).
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`10. On or about August 2, 2018, upon information and belief, Verizon Wireless
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`hired Ervin Cable to carry out installing its 5G network project, which included
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`underground installation at or near the Underground Facility. Ervin Cable hired MacMa
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`3
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`Case 4:20-cv-02703 Document 1 Filed on 08/01/20 in TXSD Page 4 of 8
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`to perform horizontal boring and trenching in furtherance of completing Verizon
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`Wireless’ 5G network project.
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`11. On July 19, 2018, MacMA called for a dig ticket for the project to begin on
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`July 23, 2018. A new dig ticket for the project was due by August 2, 2018.
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`12.
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`CenturyLink’s Underground Facility was visibly and properly marked
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`under the dig ticket.
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`13. Although Defendants had knowledge of the approximate location of
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`CenturyLink’s Underground Facility, they did not take the appropriate precautionary
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`measures to confirm the actual location of CenturyLink’s Underground Facility.
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`14.
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`Simply put, Defendants completely failed to take the necessary and proper
`
`precautions to locate and avoid CenturyLink’s Underground Facility before and during
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`the excavation and boring services.
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`15. As such, on August 2, 2018, while directional drilling using mechanized
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`equipment, Defendants cut into CenturyLink’s Underground Facility.
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`16. Defendants were conducting excavation and boring services negligently,
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`knowingly, and intentionally in violation of the Texas Underground Facility Damage
`
`Prevention and Safety Act, TEX. UTIL. CODE §§ 251.001, et seq., and industry standards
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`and practices for conducting excavation, boring, or other similar services with
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`mechanized equipment near underground fiber-optic cables and conduits, including the
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`4
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`Case 4:20-cv-02703 Document 1 Filed on 08/01/20 in TXSD Page 5 of 8
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`Underground Facility, and with complete disregard as to the location and safety of
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`CenturyLink’s Underground Facility.
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`RELIEF REQUESTED
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`NEGLIGENCE & GROSS NEGLIGENCE
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`17.
`
`CenturyLink adopts and incorporates by reference all allegations contained
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`in paragraphs 1 through 16, above.
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`18.
`
`CenturyLink generally alleges that Defendants owed a legal duty to
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`CenturyLink, Defendants breached that duty, and the breach proximately caused
`
`CenturyLink’s damages.
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`19.
`
`CenturyLink generally alleges
`
`that Defendants engaged
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`in acts or
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`omissions which when viewed objectively from the standpoint of Defendants at the time
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`of the incident involved an extreme degree of risk, considering the probability and
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`magnitude of the potential harm to others, and of which Defendants had actual,
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`subjective awareness of the risk involved, but nevertheless proceeded with conscious
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`indifference to the rights, safety, or welfare of others.
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`20. More specifically, upon information and belief, CenturyLink alleges that
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`Defendants acted negligently and grossly negligently on or about August 2, 2018, by, but
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`not limited to, the following wrongdoing:
`
`(a)
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`Defendants failed to comply with the Texas Underground Facility
`Prevention and Safety Act, TEX. UTIL. CODE §§ 251.001, et seq.
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`5
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`Case 4:20-cv-02703 Document 1 Filed on 08/01/20 in TXSD Page 6 of 8
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`(b) Defendants failed to comply with industry standards and practices for
`conducting excavation, boring, or other similar services with mechanized
`equipment near underground fiber-optic cables and conduits, including
`CenturyLink’s Underground Facility.
`
`(c)
`
`Defendants failed to appropriately plan their excavation and boring
`services
`to avoid damages
`to or
`interference with CenturyLink’s
`Underground Facility.
`
`(d) Defendants failed to determine and confirm the exact location of
`CenturyLink’s Underground Facility by safe and acceptable means when
`their excavation and boring services approached the approximate location
`of CenturyLink’s Underground Facility.
`
`(e)
`
`(f)
`
`(g)
`
`Defendants conducted excavation and boring services using mechanized
`equipment within eighteen (18) inches of CenturyLink’s Underground
`Facility.
`
`their employees regarding
`train
`to adequately
`failed
`Defendants
`supervision, excavation, boring, and other services
`in and around
`underground facilities and the precautionary measures that should be
`taken during such services.
`
`Defendants failed to adequately supervise their employees who were
`providing excavation, boring, and other services
`in and around
`underground facilities.
`
`(h) Defendants failed to ensure their employees who were providing
`supervision, excavation, boring, and other services
`in and around
`underground facilities were capable of complying, and complied, with all
`applicable statutes, regulations, and reasonable and accepted industry
`standards and practices for such services.
`
`21.
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`CenturyLink further alleges that it belongs to a class of persons the Texas
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`Underground Facility Damage Prevention and Safety Act (the “Act”) was designed to
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`protect, and the damage to the Underground Facility is of the type the Act was designed
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`to prevent, the Act is one for which tort liability may be imposed when violated,
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`6
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`Case 4:20-cv-02703 Document 1 Filed on 08/01/20 in TXSD Page 7 of 8
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`Defendants violated the Act without excuse, and Defendants’ acts and omissions
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`proximately caused CenturyLink’s damages.
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`22. As a result of Defendants’ acts and omissions on August 2, 2018,
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`CenturyLink sustained substantial damage to the Underground Facility which resulted
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`in actual damages to CenturyLink in excess of $100,000.00.
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`CONCLUSION & PRAYER
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`Plaintiff CenturyLink Communications, LLC f/k/a Qwest Communications
`
`Company, LLC, respectfully requests that this Court grant judgment in its favor over and
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`against Defendants, Ervin Cable Construction, LLC, and MacMa HDD, LLC, thereby
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`awarding CenturyLink Communications, LLC f/k/a Qwest Communications Company,
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`LLC, actual damages in excess of $100,000.00, punitive damages in an amount to be
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`determined sufficient to punish Defendants, Ervin Cable Construction, LLC, and MacMa
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`HDD, LLC, for their wrongful acts and omissions, all costs incurred as a result of
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`prosecuting this case, post-judgment interest as permitted by law, and all other and
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`further relief, at law and in equity, general and special, to which CenturyLink
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`Communications, LLC f/k/a Qwest Communications Company, LLC, may be justly
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`entitled.
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`7
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`Case 4:20-cv-02703 Document 1 Filed on 08/01/20 in TXSD Page 8 of 8
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`Dated: August 1, 2020.
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`Respectfully submitted,
`
`
`
`
`
`By: /s/ David A. Walton
`David A. Walton
`Texas Bar No. 24042120
`dwalton@bellnunnally.com
`Bell Nunnally & Martin LLP
`2323 Ross Avenue, Suite 1900
`Dallas, Texas 75201
`Tel. (214) 740-1490
`Fax (214) 740-5790
`
`Attorney-in-Charge for Plaintiff,
`CenturyLink Communications, LLC f/k/a
`Qwest Communications Company, LLC
`
`
`
`
`OF COUNSEL:
`
`Sydnie A. Shimkus
`Texas Bar No. 24093783
`sshimkus@bellnunnally.com
`Bell Nunnally & Martin LLP
`2323 Ross Avenue, Suite 1900
`Dallas, Texas 75201
`Tel. (214) 740-1490
`Fax (214) 740-5790
`
`8
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