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CNSP, Inc. v. City of Santa Fe

United States District Court, D. New Mexico

April 9, 2018

CNSP, INC. d/b/a NMSURF, Plaintiff,
v.
CITY OF SANTA FE, Defendant. and ALBERT CATANACH, Co-Plaintiff,

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO UNITED STATES DISTRICT JUDGE.

         This 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].

         Having 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.

         I. Background

         The 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.

         Plaintiffs 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).

         After 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.

         Plaintiffs 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.

         In 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).

         On 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.

         The 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”).

         II. Defendant's Motion to Dismiss [Doc. 6]

         Defendant 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)).

         A. Personal Jurisdiction and Service of Summons

         Defendant 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)).

         Here, 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.

         B. Subject Matter Jurisdiction

         “It 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).

         Importantly, 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]

         1. Abstention

         In 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.[1] When both coercive and declaratory relief is requested, however, the standard set out in Colorado River Water Conservation District, not Wilton, applies.[2]See Colorado River Water Conservation Dist. v. United States (Colorado River), 424 U.S. 800, 813 (1976)[3]; 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 ...


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