United States District Court, D. New Mexico
CNSP, INC. d/b/a NMSURF, Plaintiff,
CITY OF SANTA FE, Defendant. and ALBERT CATANACH, Co-Plaintiff,
MEMORANDUM OPINION AND ORDER
CHRISTINA ARMIJO UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' Motion for
Temporary Restraining Order and Preliminary Injunction
[Doc. 3]; Plaintiffs' Motion to Strike Defendant City
of Santa Fe's Response to Plaintiffs' Motion for
Temporary Restraining Order and Preliminary Injunction
[Doc. 8]; Plaintiffs' Motion to Amend/Correct
Complaint [Doc. 17]; and Defendant's Motion to
Dismiss [Doc. 6].
considered the parties' Motions and the
applicable law, and being fully advised in the premises, the
Court DENIES in part and GRANTS in
part Defendant's Motion to Dismiss
[Doc. 6]. For the reasons set forth below, the Court declines
to address the remaining motions.
following facts are drawn from the Complaint, except
as noted. [Doc. 1] Additional facts are provided as pertinent
to the parties' arguments. Plaintiff NMSURF applied to
the City of Santa Fe (the City or Defendant) in April 2015 to
consolidate two existing rooftop towers into one tower within
the property lines of its facility under 47 U.S.C. §
1455 of the Telecommunications Act (TCA or the Act). See
In the Matter of Acceleration of Broadband Deployment by
Improving Wireless Facilities Siting Policies, 29 F.C.C.
Rcd. 12865, 12922 (2014) (discussing implementation of
Section 6409(a) of the Spectrum Act, codified within the TCA
at 47 U.S.C. § 1455). The City did not issue a denial or
acceptance of the application in writing within sixty days of
the request as mandated by the TCA. Plaintiffs notified the
City that the application was “deemed granted”
under the TCA, and the City did not file suit objecting to
the notification within thirty days as required by the Act.
then proceeded with the tower modifications in June 2016. In
July 2016, the City sued Plaintiff Catanach in the New Mexico
First Judicial District Court for a violation of a city
ordinance by modifying the towers without a City-issued
permit. Plaintiff Catanach removed the matter to the United
States District Court for the District of New Mexico, and the
City moved for remand to state court. This Court granted the
City's Motion to Remand the matter to the First
Judicial District Court. See City of Santa Fe v.
Catanach, No. 16-CV-825 MCA/KBM, 2016 WL 10179299
(D.N.M. Sept. 19, 2016).
the City's suit was remanded, the state district court
(Thomson, J.) granted a preliminary injunction preventing
Plaintiffs from continuing the modifications but permitting
Plaintiffs to continue operating the facility. The state
district court set a bench trial date in April 2017.
then filed the following motions: Motion to Stay the
Injunction; Motion for Expedited Review;
Motion for Summary Judgment; Motion for Jury
Trial. The state district court denied the Motion to
Stay the Injunction, the Motion for Expedited
Review, and the Motion for Summary Judgment. It
granted the Motion for Jury Trial. A jury trial is
currently set for October 2018.
April 2017, Plaintiff Catanach filed suit in the United
States District Court for the District of New Mexico under 42
U.S.C. § 1983 and the TCA for declaratory and injunctive
relief, alleging an ongoing violation of federal law by Judge
Thomson. See Catanach v. Thomson, No. 17-2089, 2017
WL 5615849, at *1 (10th Cir. Nov. 20, 2017) (summarizing the
procedural history of the suit).
April 12, 2017, the United States District Court denied
Plaintiff Catanach's Motion for Temporary Restraining
Order and granted Judge Thomson's Motion to
Dismiss. Id. at *3. The Tenth Circuit Court of
Appeals affirmed. Id. at *5.
present matter was initiated when Plaintiffs filed a
Complaint for Declaratory Judgment, Injunctive, and Other
Relief in this Court on August 11, 2017. [Doc. 1] They
also filed a Motion for Temporary Restraining Order and
Preliminary Injunction on August 17, 2017. [Doc. 3]
Defendant filed a Motion to Dismiss on September 1,
2017. [Doc. 6] Because Defendant's Motion to
Dismiss implicates this Court's jurisdiction, the
Court will address it first. See Muller v. Vilsack,
No. CV 13-0431 MCA/KK, 2015 WL 13651020, at *5 (D.N.M. Sept.
30, 2015) (stating that “a court . . . retains an
independent obligation to ensure, even sua sponte,
that it has jurisdiction over the claims before it”).
Defendant's Motion to Dismiss [Doc. 6]
moves to dismiss the Complaint on three bases.
First, it argues that the Court does not have personal
jurisdiction over it because Plaintiffs failed to properly
serve the City under Federal Rule of Civil Procedure 4. [Doc.
6] Second, it argues that this Court should abstain from
considering the Complaint because the same issues
raised in it are also pending before the state district
court. [Doc. 6] Finally, it argues that Plaintiffs failed to
file the present suit within the time permitted by the TCA.
[Doc. 6] Whereas the first issue implicates the Court's
personal jurisdiction over the City, the second and third
issues implicate the Court's subject matter jurisdiction.
The Court “may address jurisdictional issues in any
order [it] find[s] convenient.” D.L. v. Unified
Sch. Dist. No. 497, 392 F.3d 1223, 1229 (10th Cir. 2004)
(citing Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 585 (1999)).
Personal Jurisdiction and Service of Summons
maintains that Plaintiffs did not include a summons when they
served the Complaint and Motion on Geralyn
Cardenas, Deputy City Clerk, as required by Rule 4(c)(1),
which provides that “[a] summons must be served with a
copy of the complaint.” Fed.R.Civ.P. 4. [Doc. 6] Hence,
it argues, this Court does not have personal jurisdiction
over it and the Complaint should be dismissed under
Federal Rule of Civil Procedure 12(b)(5). [Doc. 6] See
Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co.,
484 U.S. 97, 104 (1987) (“Before a federal court may
exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be
satisfied.”). “The Court may dismiss a case
pursuant to Rule 12(b)(5) for insufficient service of
process.” Haskett v. Flanders, No.
13-CV-03392-RBJ-KLM, 2014 WL 3563015, at *2 (D. Colo. July
16, 2014). Once service of process is challenged, the
plaintiff must make a prima facie showing that “he has
satisfied statutory and due process requirements so as to
permit the court to exercise personal jurisdiction over the
defendant.” Id. “The Court may consider
affidavits and other documentary evidence when examining the
prima facie burden, and shall entitle the plaintiff to the
benefit of any factual doubt.” Id. (internal
quotation marks and citation omitted); see Behagen v.
Amateur Basketball Ass'n of U.S.A., 744 F.2d 731,
733 (10th Cir. 1984) (“If the parties present
conflicting affidavits, all factual disputes are resolved in
the plaintiff's favor, and the plaintiff's prima
facie showing is sufficient notwithstanding the contrary
presentation by the moving party.”). “The
plaintiff must demonstrate that the procedure employed by him
to effect service satisfied the requirements of Rule 4 of the
Federal Rules of Civil Procedure.” Haskett,
2014 WL 3563015, at *2 (citing Light v. Wolf, 816
F.2d 746, 751 (D.C. Cir. 1987)).
Defendant points to an affidavit by Ms. Cardenas stating that
Plaintiffs' process server “did not provide to the
City a summons with the papers he provided.” [Doc.
12-1] However, Plaintiffs provide an affidavit by the process
server, in which he avers that he “personally served
the City of Santa Fe with the summons, complaint, and notice
of motion [for] temporary restraining order.” [Doc.
9-1] An affidavit of service of the summons dated August 15,
2017 was filed with this Court on August 17, 2017. [Doc. 4]
Resolving factual disputes in their favor, Plaintiffs have
made a prima facie showing that proper service was effected.
See Boilermaker-Blacksmith Nat. Pension Fund v.
Gendron, 96 F.Supp.2d 1202, 1216-17 (D. Kan. 2000)
(holding that where the defendant “assert[ed] that
because the summons was not served upon her, service of
process was defective” and “plaintiffs point[ed]
to evidence that the process server served [the defendant]
with both a summons and a copy of the complaint, ” the
plaintiffs had “made a prima facie showing which [wa]s
sufficient to overcome dismissal at this time”). Hence,
Defendant's Motion to Dismiss based on failure
of process will be denied.
Subject Matter Jurisdiction
is beyond dispute that federal courts have jurisdiction over
suits to enjoin state officials from interfering with federal
rights.” Shaw v. Delta Air Lines, Inc., 463
U.S. 85, 96, n.14 (1983). “A plaintiff who seeks
injunctive relief from state regulation, on the ground that
such regulation is pre-empted by a federal statute which, by
virtue of the Supremacy Clause of the Constitution, must
prevail, thus presents a federal question which the federal
courts have jurisdiction under 28 U.S.C. § 1331 to
resolve.” Id.; see Qwest Corp. v. City of
Santa Fe, New Mexico, 380 F.3d 1258, 1264 (10th Cir.
2004) (concluding that “the district court had federal
question jurisdiction over [the plaintiff's] claim of
[TCA] preemption” over a City of Santa Fe ordinance).
the City does not dispute that federal question jurisdiction
does not exist. Rather, the City argues that the Court should
abstain from exercising its jurisdiction because the issues
raised by it are also currently pending before the First
Judicial District Court. [Doc. 6] The City also argues that
Plaintiffs' claims were filed too late under 47 U.S.C.
§ 332 and must be dismissed. [Doc. 6]
support of abstention, Defendant relies on the standard set
forth in Wilton v. Seven Falls Co., 515 U.S. 277
(1995), in which the Supreme Court addressed abstention by a
federal court in a declaratory judgment action. When both
coercive and declaratory relief is requested, however, the
standard set out in Colorado River Water Conservation
District, not Wilton, applies.See Colorado
River Water Conservation Dist. v. United States
(Colorado River), 424 U.S. 800, 813
(1976); United States v. City of Las
Cruces, 289 F.3d 1170, 1181 (10th Cir. 2002)
(recognizing “a distinction between suits seeking
declaratory relief and those seeking coercive relief”);
Nautilus Ins. Co. v. Otero Cty. Hosp. Ass'n, No.
2:11-CV-00178 BRB, 2011 WL 12574962, at *4 (D.N.M. Nov. 4,
2011) (concluding that the Colorado River standard
applied where both declaratory and coercive relief was
requested). The Colorado River doctrine
“permits a federal court to dismiss or stay a federal
action in deference to pending parallel state court
proceedings, based on considerations of wise judicial
administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.”
Fox v. Maulding, 16 F.3d 1079, 1080 (10th Cir. 1994)
(internal quotation marks, alterations, and citations
omitted). Although courts have differed over whether a
dismissal or a stay is appropriate when Colorado
River applies, the Tenth Circuit has held that