Madison County Circuit Judge Andy Matoesian keeps preparing for a class certification hearing in a suit over railroad right of way, but the parties keep putting it off.

Four times in 10 weeks attorneys for defendant Level 3 Communications and three plaintiffs have agreed to continue a hearing on class certification.

Neither side has submitted briefs that Matoesian ordered last August on the Illinois Supreme Court decision in Avery v. State Farm.

In March Matoesian ordered Avery briefs on April 7. Still he has not seen them.

The Avery decision threw out a Williamson County verdict worth about $1.2 billion and knocked the props out from under class action litigation in Illinois.

In the Level 3 case Harriet Bauer, George Schillinger and Ruth Schillinger claim the company trespassed while laying fiber optic cable.

Level 3 attorney Troy Bozarth wrote last year that plaintiffs owned no interest in railroad right of way where Level 3 laid cable.

He submitted a copy of a quit claim deed from 1859, for right of way adjoining the Bauer property.

He submitted a copy of a condemnation from 1857 for right of way adjoining the Schillinger property.

Elizabeth Heller represents the plaintiffs.

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