The opinion of the court was delivered by: Wayne R. Anderson, United States District Judge
MEMORANDUM OPINION AND ORDER
This case is before the Court on the motion of intervenors M.A.S. Hallaba and Chem-Tronics, Inc. for an order requiring the disclosure and joinder of unidentified Right of Way Providers obtaining releases under the proposed settlement agreement. For the following reasons, the portion of the motion requesting joinder of the Right of Way Providers is denied, and the portion of the motion requesting disclosure of the Right of Way Providers is referred to Magistrate Judge Brown.
This litigation arises because the defendant telecommunications companies installed fiber optic cable in railroad rights of way. The plaintiffs own land adjoining the railroad rights of way. The plaintiffs contend that defendants do not have the legal right to install their fiber optic cable in the railroad rights of way. A proposed settlement which purports to resolve the fiber optic cable litigation nationwide has been negotiated between a proposed class of plaintiffs in this case and certain defendants.
Under the proposed settlement agreement between the defendants and the class plaintiffs, the term "Right of Way Provider" is defined as "any railroad or other primary occupier of a railroad Right of Way that has granted rights to install or use Telecommunications Facilities in such Right of Way." Therefore, the term "Right of Way Provider" refers to the railroads which have granted rights to the defendants to install the fiber optic cable. Under the terms of the proposed settlement agreement, the class members will release all claims against the Released Parties, including the Right of Way Providers, relating to the presence of Telecommunications Facilities owned by defendants on Rights of Way abutting the property of the class members.
Two of the intervenors, M.A.S. Hallaba and Chem-Tronics ("intervenors"), have filed a motion for an order requiring the disclosure and joinder of the unidentified Right of Way Providers who will be obtaining releases under the proposed settlement agreement. There are two parts to the intervenors' motion. First, intervenors have moved, pursuant to Fed.R.Civ.P. 23(d)(5), to require the defendants to disclose the identity of all "Right of Way Providers" as defined in the proposed settlement agreement. Second, intervenors have moved, pursuant to Fed.R.Civ.P. 21, to require the joinder of these same "Right of Way Providers" as defendants in this action. We will address each of these arguments in turn.
I. Disclosure of the Identity
Intervenors have first moved to require defendants to disclose the identity of the "Right of Way Providers." Magistrate Judge Brown, to whom we have referred all discovery matters in this case, is already entertaining similar motions regarding how the identity of the Right of Way Providers should be disclosed. Thus, we consider this request to be a discovery motion in disguise, and we leave resolution of the issue of whether, or how, defendants must disclose the identity of the Right of Way Providers to Magistrate Judge Brown.
Intervenors next request that the Right of Way Providers be joined in this action. Intervenors' motion would require each railroad Right of Way Provider to be served with the Amended Complaint, hire legal counsel, attend hearings, and otherwise participate directly in this action. Intervenors present two primary arguments in support of their motion. First, they argue that without joinder of the Right of Way Providers, the court cannot determine the fairness, adequacy and reasonableness of the proposed settlement. Second, intervenors argue that the Right of Way Providers need to be joined in this, action in order to be released from liability.
Intervenors' argument that, without joinder of the Right of Way Providers, this Court cannot determine the fairness, adequacy and reasonableness of the proposed settlement is without merit. The proposed Settlement Agreement clearly provides that the class members are relinquishing their rights to any claim
arising out of or relating to the ownership,
installation, occupation, maintenance, or use of
Telecommunications Facilities within any Right of
Way, including but not limited to, claims for
trespass, unlawful entry, slander of title, quiet
title, breach of a covenant, unjust enrichment,
ownership, possession, conversion, conspiracy,
injunctive relief, attorney's fees, criminal
mischief/criminal trespass, inverse condemnation, and
declaratory judgment, and any of the facts,
transactions, events, occurrences, acts or failures to
act which were or could have been alleged in this
This release is limited to the Telecommunications Facilities owned by the four named defendants. In other words, each class member is giving up all of his or her claims arising out of a defined occurrence or series of occurrences. Who owns the rights of way associated with those Telecommunications Facilities or who else is released from liability is not material in determining whether the amount paid in settlement of these claims is fair and reasonable.
Moreover, the release is limited to the Right of Way itself. It does not cover "any claim relating to physical harm or damage caused to property other than the Right of Way or any claims for bodily injury." Thus, intervenors' contention, that they cannot determine whether they have any potential claims against these Right of Way Providers unless they are joined ignores the clear terms of the settlement agreement. If the class members have a claim against the Right of Way Providers relating to issues other than the presence of the defendants' Telecommunications Facilities in the Right of Way, those claims are not released in the ...