United States District Court, D. Delaware
EDUARDO C. ROBRENO, J.
the Court are Plaintiff's motion for summary judgment,
Defendants' cross-motion for summary judgment and
alternative motion to dismiss, and Defendants' motion to
dismiss the amended complaint. Defendants assert, inter alia,
that T-Mobile's initial complaint was untimely under 47
U.S.C. § 332(c), the Telecommunications Act of 1996
(“TCA”), and Delaware state law. Defendants
further contend that T-Mobile's amended complaint fails
to relate back to its initial complaint and is itself
untimely as it was filed too late. For the reasons set forth
below, the Court will grant Defendants' motion for
FACTUAL AND LEGAL BACKGROUND
submitted an application to the Zoning Board to build a cell
antenna to expand its cell service/coverage in Wilmington,
Delaware on February 26, 2016 and filed an amended
application on August 25, 2016. The Zoning Board held a
public hearing on October 26, 2016 to determine whether to
grant the application. At the hearing, the members of the
Zoning Board individually orally voted to deny the
application. On November 28, 2016, T-Mobile filed its lawsuit
against the Zoning Board, claiming, inter alia, that the
Zoning Board used impermissible factors in deciding whether
to grant the application. On December 21, 2016, the Zoning
Board issued its written decision. T-Mobile filed its amended
complaint on January 8, 2018 adding this detail.
parties make various arguments in their motions. However, the
Court need address only one and concludes that the suit is
untimely under the TCA and Delaware state law since it was
filed before the issuance of the written decision, which is
the final decision of the Zoning Board. Moreover, to the
extent the amended complaint relates back to the initial
complaint, it cannot cure the untimeliness of the initial
complaint and was itself untimely filed.
judgment should be granted when there is no genuine dispute
of material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). A dispute of fact is
genuine when no reasonable jury could come to the opposite
conclusion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248-49 (1986). Furthermore, a dispute of fact is
material when it “might affect the outcome of the suit
under the governing law.” Id. at 248. A movant
is entitled to summary judgment if the non-movant has failed
to sufficiently show an essential element of its case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Courts considering cross-motions for summary judgment
will treat each motion independently. Arnold Pontiac-GMC,
Inc. v. General Motors Corp., 700 F.Supp. 838, 840 (W.D.
Pa. 1988) (citing Rains v. Cascades Industries,
Inc., 402 F.2d 241, 245 (3d Cir. 1968).
person adversely affected by any final action or
failure to act . . . that is inconsistent with this
subparagraph may, within 30 days after such action or failure
to act, commence an action in any court of competent
jurisdiction . . . .” 47 U.S.C. § 332(c)(7)(B)(v)
(emphasis added). “A ‘final decision' is a
particular type of agency action, and not all agency
determinations are final decisions.” Bacon v.
Sullivan, 969 F.2d 1517, 1519-20 (3d Cir. 1992) (citing
Califano v. Sanders, 430 U.S. 99, 107-08 (1977)).
Several circuit courts have held that the “final
action” in the TCA context is the written decision
issued by the Zoning Board at the conclusion of its decision
process. USCOC of Greater Mo. v. City of Ferguson,
583 F.3d 1035, 1041 (8th Cir. 2009); Omnipoint Holdings,
Inc. v. City of Southfield, 355 F.3d 601, 607 (6th Cir.
2004); Preferred Sites, LLC v. Troup Cty., 296 F.3d
1210, 1217 (11th Cir. 2002).
pleading “relates back to the date of the original
pleading when . . . the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set
out-or attempted to be set out-in the original
pleading.” Fed.R.Civ.P. 15(c)(1)(B). The relation back
doctrine can allow parties to “sidestep” statutes
of limitations, “thereby permitting resolution of a
claim on the merits, as opposed to a technicality.”
Glover v. F.D.I.C., 698 F.3d 139, 145 (3d Cir. 2012)
(citing Krupski v. Costa Crociere S.p.A., 560 U.S.
538 (2010)). Relation back is mandatory; equitable
considerations are only made under the separate and distinct
Rule 15(a) analysis. See Arthur v. Maersk, Inc. 434
F.3d 196, 202-03 (3d Cir. 2006). Under the relation back
doctrine, the issue is whether there is a “common core
of operative facts in the two pleadings.” Bensel v.
Allied Pilots Ass'n, 387 F.3d 298, 310 (3d Cir.
salient issue in this case is what action by the Zoning Board
constituted the “final action” under the TCA
triggering the thirty-day countdown window during which
T-Mobile was required to file its lawsuit challenging the
action of the Zoning Board. T-Mobile argues that the oral
vote taken at the October 26, 2016 Zoning Board hearing
constituted the final action for purposes of the TCA.
Defendants, on the other hand, contend that the final action
did not occur until the Zoning Board issued its written
decision on December 22, 2016. If final action did not occur
until the written decision was issued, then T-Mobile's
lawsuit was untimely.
three circuit courts of appeal that have considered this
exact question under Section 332(c) have determined that the
final action of the zoning board or commensurate agency is
the written decision formally denying the application. In
Preferred Sites, the Eleventh Circuit determined
that the “‘final action' occurs when the
state or local authority issues its written decision.”
296 F.3d at 1217 (further providing that “[u]ntil the
state or local authority issues its written notification, its
task under the statute is not complete”). The Sixth
Circuit ruled similarly in Omnipoint Holdings that
“the council resolution is the only document which
would definitively show the formal action taken by the
council.” 355 F.3d at 607. Finally, the Eighth Circuit
followed suit when it held “‘final action'
under 47 U.S.C. § 332(c)(7)(B)(v) occurs when a state or
local government issues a written decision denying an
application to construct a wireless service facility.”
USCOC, 583 F.3d at 1041.
the need for a bright line to determine “final action,
” is of practical importance in that under the statute,
a person aggrieved by the governmental action has only a
short period of time (thirty days) in which to
“commence an action.” 47 U.S.C. §
332(c)(7)(B)(v). To permit anything other than a written
decision to be considered “final ...