The opinion of the court was delivered by: Wayne R. Andersen, United States District Judge
MEMORANDUM, OPINION AND ORDER
This case is before the Court on the motion of the Buhl Intervenors for preliminary dismissal. For the following reasons, the motion is denied.
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 fiber optic cable litigation nationwide, has been negotiated between a proposed class of plaintiffs in this case and certain defendants.
The Buhl Intervenors are a group of plaintiffs who have fiber optic cable class actions pending in Tennessee. They have filed a motion for preliminary dismissal, requesting that this Court dismiss the nationwide class action aspect of this case and/or "carve out" the Tennessee class members from the settlement.
Only one portion of the Buhl Intervenors' motion presents a dispositive ground for dismissal — the argument that the court should dismiss this action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). The other arguments that the Buhl Intervenors have asserted are not dispositive and are, instead, premature attacks on the fairness of the settlement.
In this case, the third amended complaint alleges that this Court has federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332, as well as supplemental jurisdiction. We will proceed to analyze whether we have jurisdiction over the claims alleged in this action.
I. Subject Matter Jurisdiction
A. Federal Question Jurisdiction
In this case, plaintiffs' claims are based upon the allegations that: 1) they own property adjacent to a railroad right-of-way on which defendants' telecommunications facilities were installed; 2) the right-of-way is an easement; and 3) the easement is limited to uses that do not include telecommunications. Plaintiffs have alleged that certain of the right-of-ways in question were created by Federal Land Grant Acts.
The United States Supreme Court has long held that, when a claim depends "upon the nature and effect of the acts of Congress, its solution necessarily involves a Federal question." Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 270 (1903). Even before Townsend, the Supreme Court had held that an action arises under federal law when the validity of plaintiffs' claims depends upon the interpretation of federal statutes creating railroad fight-of-ways. Kansas Pacific Ry. Co. v. Atchison, Topeka & Santa Fe R. Co., 112 U.S. 414 (1884); Northern Pacific R. Co. v. Colburn, 164 U.S. 383 (1896).
Based upon these firmly established principles, federal district courts recently have held that there is federal question jurisdiction over claims for compensation based upon telecommunications companies' use of right-of-ways created by Federal Land Grant Acts. In AT&T Fiber Optic Cable Installation Litigation, 2001 WL 1397295 (S.D. Ind. 2001), plaintiffs asserted claims based upon defendant's use of federal land grant right-of-ways for telecommunications purposes. The Court held:
The decisive issue for each such claim is whether the
legislation granted to the railroad an interest in the
land that allowed the railroad to grant an easement in
turn for the installation of communications cables
along the right-of-way. . . . Under ...