Central Puget Sound Regional Transit Authority v. Level 3 Communications, LLC

MEMORANDUM

Level 3 Communications, LLC (“Level 3”) appeals the grant of summary judgment to Central Puget Sound Regional Transit Authority (“Sound Transit”) in this diversity action pursuant to Washington State law. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

The district court concluded correctly that Burlington Northern Santa Fe Railway Co. (“BNSF”) both retained for itself and conveyed to Sound Transit the benefit of the Level 8 easement. Section 1 of the Assignment and Assumption of Third Party Leases/Easements/Licenses (“Assignment”), read together with Section 11 of the Master Right-of-Way Agreement (“Agreement”), authorizes both BNSF and Sound Transit to demand relocation of Level 3’s facilities at Level 3’s expense for the relocation or placement of railroad tracks. Because of the unfair doubling of Level 3’s burden pursuant to the Agreement, the district court correctly deemed Section 1 of the Assignment unenforceable.

As the district court concluded, both BNSF and Sound Transit cannot hold the benefit of the Level 3 easement simultaneously. We affirm the district court’s holding that, pursuant to the law of Washington, the benefit of the Level 3…