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T-Mobile, Northeast, LLC v. City of Wilmington

United States District Court, D. Delaware

March 26, 2018



          EDUARDO C. ROBRENO, J.

         Before 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.[1] For the reasons set forth below, the Court will grant Defendants' motion for summary judgment.


         T-Mobile 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.[2] T-Mobile filed its amended complaint on January 8, 2018 adding this detail.

         The 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.


         Summary 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).

         “Any 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).

         A 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. 2004).


         A. Timeliness

         The 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.

         All 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.

         Moreover, 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 ...

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