Case 4:20-cv-03124 Document 1 Filed on 09/04/20 in TXSD Page 1 of 8
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`LEVEL 3 COMMUNICATIONS, LLC, and
`WILTEL COMMUNICATIONS, LLC,
`Plaintiffs,
`
`
`v.
`
`BORETEX COMMUNICATION LLC, and
`JOSE G. ESPINOZA d/b/a BORETEX
`COMMUNICATION,
`Defendants.
`
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`Case No. 20-3124
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`PLAINTIFFS’ ORIGINAL COMPLAINT
`
`Plaintiffs, Level 3 Communications, LLC, and WilTel Communications, LLC
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`(collectively, “Level 3”), file this original complaint against Defendants, Boretex
`
`Communication LLC, and Jose G. Espinoza d/b/a Boretex Communication (collectively
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`“Boretex”),
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`arising
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`from damages
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`to Level
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`3’s underground
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`fiber-optic
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`telecommunication facilities in Prairie View, Waller County, Texas, caused by Boretex’s
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`wrongful acts and omissions.
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`PARTIES
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`1.
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`Level 3 Communications, LLC, is a limited liability company organized and
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`existing under the laws of the State of Delaware with a principal place of business in
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`Broomfield, Colorado. The citizenship of all members of Level 3 Communications, LLC,
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`is Colorado.
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`1
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`
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`LEVEL 3 COMMUNICATIONS, LLC, and
`WILTEL COMMUNICATIONS, LLC,
`Plaintiffs,
`
`
`v.
`
`BORETEX COMMUNICATION LLC, and
`JOSE G. ESPINOZA d/b/a BORETEX
`COMMUNICATION,
`Defendants.
`
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`§
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`§
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`
`
`Case No. 20-3124
`
`PLAINTIFFS’ ORIGINAL COMPLAINT
`
`Plaintiffs, Level 3 Communications, LLC, and WilTel Communications, LLC
`
`(collectively, “Level 3”), file this original complaint against Defendants, Boretex
`
`Communication LLC, and Jose G. Espinoza d/b/a Boretex Communication (collectively
`
`“Boretex”),
`
`arising
`
`from damages
`
`to Level
`
`3’s underground
`
`fiber-optic
`
`telecommunication facilities in Prairie View, Waller County, Texas, caused by Boretex’s
`
`wrongful acts and omissions.
`
`PARTIES
`
`1.
`
`Level 3 Communications, LLC, is a limited liability company organized and
`
`existing under the laws of the State of Delaware with a principal place of business in
`
`Broomfield, Colorado. The citizenship of all members of Level 3 Communications, LLC,
`
`is Colorado.
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`1
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`Case 4:20-cv-03124 Document 1 Filed on 09/04/20 in TXSD Page 2 of 8
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`2. WilTel Communications, LLC, is a limited liability company organized and
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`existing under the laws of the State of Delaware with a principal place of business in
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`Broomfield, Colorado. The citizenship of the only member of WilTel Communications,
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`LLC, is Colorado.
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`3.
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`Boretex Communication LLC, is an entity organized and existing under the
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`laws of the State of Texas with a principal place of business in Houston, Texas. Boretex
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`Communication LLC, operates and regularly conducts business in Texas, and may be
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`served with process via its registered agent, Jose G. Espinosa, 12905 S. Post Oak Road,
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`Houston, Texas 77045, or wherever he may be found.
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`4.
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`Jose G. Espinoza is an individual who resides in Texas, and he may be
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`served with process at 12905 S. Post Oak Road, Houston, Texas 77045, or wherever he
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`may be found. Jose G. Espinoza is the managing member of Boretex Communication
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`LLC, upon information and belief, an entity that was not organized or existing under the
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`laws of the State of Texas until August 20, 2020 (after the wrongful acts and omissions of
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`Boretex on or about September 6, 2018). Thus, Jose G. Espinoza has been named in his
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`individual capacity d/b/a Boretex Communication.
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`JURISDICTION AND VENUE
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`5.
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`The court has personal jurisdiction, specific and general, over Boretex
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`Communication in this action because a substantial part of the events or omissions giving
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`rise to the claim occurred in Prairie View, Waller County, Texas, and Boretex
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`2
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`Case 4:20-cv-03124 Document 1 Filed on 09/04/20 in TXSD Page 3 of 8
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`Communication has engaged in “continuous and systematic” activities with the State of
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`Texas as evidenced by their conducting business and offering services in Texas.
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`6.
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`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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`Boretex Communication’s acts and omissions, Level 3 has sustained substantial damage
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`to and loss of use of their underground fiber-optic telecommunication facilities made the
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`subject of this lawsuit, which resulted in damages to Level 3 in excess of $140,000.
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`Moreover, Level 3 is a citizen of Delaware and Colorado, Wiltel is a citizen of Delaware
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`and Colorado, and Boretex Communication is a citizen of Texas.
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`7.
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`Venue is proper in the court under 28 U.S.C. § 1391(b)(2)-(3) because:
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`(1) “a substantial part of the events or omissions giving rise to the claim occurred” in this
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`judicial district; and (2) alternatively, the defendant, Boretex Communication, is subject
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`to the court’s personal jurisdiction with respect to this action.
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`FACTUAL BACKGROUND
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`8.
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`Level 3 is a global communications provider located in Broomfield,
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`Colorado, that provides telecommunication services to enterprise, government, and
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`carrier customers.
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`3
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`Case 4:20-cv-03124 Document 1 Filed on 09/04/20 in TXSD Page 4 of 8
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`9.
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`Level 3’s telecommunication services are provided through, among other
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`means, extensive nationwide fiber networks consisting of, in part, underground facilities,
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`such as fiber-optic telecommunications cables and conduits.
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`10.
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`Level 3’s underground facilities made the subject of this action were
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`installed, operated, and maintained, in part, at or near the intersection of Richards Road
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`and Highway 290 (Business) in Prairie View, Waller County, Texas (“Underground
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`Facility”).
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`11. On or about September 6, 2018, Boretex Communication was working to
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`install fiber-optic cables and conduits, including, without limitation, using mechanized
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`equipment at or near the location of Level 3’s Underground Facility, which was visible or
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`properly marked.
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`12. Although Boretex Communication had knowledge of the approximate
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`location of Level 3’s Underground Facility, it did not take the appropriate precautionary
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`measures to confirm the actual location of Level 3’s Underground Facility and ensure that
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`such facility was not at risk of being damaged during the excavation or installation
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`services.
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`13.
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`Simply put, Boretex Communication completely failed to take the necessary
`
`and proper precautions to locate and avoid Level 3’s Underground Facility before and
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`during the excavation and installation services.
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`4
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`Case 4:20-cv-03124 Document 1 Filed on 09/04/20 in TXSD Page 5 of 8
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`14. On September 6, 2018, Level 3’s Underground Facility was damaged by the
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`mechanized equipment being used by Boretex Communication during the excavation
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`and installation services.
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`15.
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`Boretex Communication was conducting excavation and installation
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`services negligently, knowingly, and intentionally in violation of the Texas Underground
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`Facility Damage Prevention and Safety Act, TEX. UTIL. CODE §§ 251.001, et seq., and
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`industry standards and practices for conducting excavation, installation, or other similar
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`services with mechanized equipment near underground fiber-optic cables and conduits,
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`including the Underground Facility, and with complete disregard as to the location and
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`safety of Level 3’s Underground Facility.
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`RELIEF REQUESTED
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`NEGLIGENCE & GROSS NEGLIGENCE
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`16.
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`Level 3 adopts and incorporates by reference all allegations contained in
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`paragraphs 1 through 15, above.
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`17.
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`Level 3 generally alleges that Boretex Communication owed a legal duty to
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`Level 3, Boretex Communication breached the duty, and the breach proximately caused
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`Level 3’s damages.
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`18.
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`Level 3 generally alleges that Boretex Communication engaged in acts or
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`omissions which when viewed objectively
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`from
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`the standpoint of Boretex
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`Communication at the time of their occurrence involved an extreme degree of risk,
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`5
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`Case 4:20-cv-03124 Document 1 Filed on 09/04/20 in TXSD Page 6 of 8
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`considering the probability and magnitude of the potential harm to others, and of which
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`Boretex Communication had actual, subjective awareness of the risk involved, but
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`nevertheless proceeded with conscious indifference to the rights, safety, or welfare of
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`others.
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`19. More specifically, upon information and belief, Level 3 alleges that Boretex
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`Communication acted negligently and grossly negligently on or about September 6, 2018,
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`by, but not limited to, the following wrongdoing:
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`(a)
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`(b)
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`(c)
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`(d)
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`(e)
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`(f)
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`Boretex Communication failed to comply with the Texas Underground
`Facility Prevention and Safety Act, TEX. UTIL. CODE §§ 251.001, et seq.
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`Boretex Communication failed to comply with industry standards and
`practices for conducting excavation, installation, or other similar services
`with mechanized equipment near underground fiber-optic cables and
`conduits, including Level 3’s Underground Facility.
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`Boretex Communication failed to appropriately plan its excavation and
`installation services to avoid damages to or interference with Level 3’s
`Underground Facility.
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`Boretex Communication failed to determine and confirm the exact location
`of Level 3’s Underground Facility by safe and acceptable means when its
`excavation and installation services approached the approximate location
`of Level 3’s Underground Facility.
`
`Boretex Communication conducted excavation and installation services
`using mechanized equipment within eighteen (18) inches of Level 3’s
`Underground Facility.
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`Boretex Communication failed to adequately train its employees regarding
`supervision, excavation, installation, and other services in and around
`underground facilities and the precautionary measures that should be
`taken during such services.
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`6
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`Case 4:20-cv-03124 Document 1 Filed on 09/04/20 in TXSD Page 7 of 8
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`(g)
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`(h)
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`Boretex Communication failed to adequately supervise its employees who
`were providing excavation, installation, and other services in and around
`underground facilities.
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`Boretex Communication failed to ensure its employees who were providing
`supervision, excavation, installation, 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.
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`20.
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`Level 3 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 its 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, Boretex
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`Communication violated the Act without excuse, and Boretex Communication’s acts and
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`omissions proximately caused Level 3’s damages.
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`21. As a result of Boretex Communication’s acts and omissions, Level 3 has
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`sustained substantial damage to its Underground Facility which has resulted in actual
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`damages to Level 3 in excess of $140,000.
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`CONCLUSION & PRAYER
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`Level 3 Communications, LLC, and WilTel Communications, LLC, respectfully
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`request that this court grant judgment in its favor over and against Boretex
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`Communication LLC, and Jose G. Espinoza d/b/a Boretex Communication, thereby
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`awarding Level 3 Communications, LLC, and WilTel Communications, LLC, actual
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`damages in excess of $140,000, punitive damages in amounts to be determined sufficient
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`7
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`Case 4:20-cv-03124 Document 1 Filed on 09/04/20 in TXSD Page 8 of 8
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`to punish Boretex Communication LLC, and Jose G. Espinoza d/b/a Boretex
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`Communication, for its 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 Level 3 Communications,
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`LLC, and WilTel Communications, LLC, may be justly entitled.
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`Dated: September 4, 2020.
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`Respectfully submitted,
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`
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`
`
`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 Plaintiffs,
`Level 3 Communications, LLC, and
`WilTel Communications, LLC
`
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`8
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`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
`
`
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