Southwestern Bell Telephone Co. v. City of El Paso
| Decision Date | 19 September 2003 |
| Docket Number | No. 02-50899.,No. 02-50825.,02-50825.,02-50899. |
| Citation | 346 F.3d 541 |
| Parties | SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff-Appellant, v. CITY OF EL PASO; et al., Defendants, El Paso County Water Improvement District No. 1, Defendant-Appellee. Southwestern Bell Telephone Company, Plaintiff-Appellee, v. City of El Paso; et al., Defendants, El Paso County Water Improvement District No. 1, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David John Schenck (argued), David Lawrence Horan (argued), Robert Edwin Davis, Hughes & Luce, Dallas, TX, for Southwestern Bell Tel. Co.
Keith R. Taunton, Louis Keith Slade (argued), Tucker, Taunton, Snyder & Slade, Houston, TX, James M. Speer, Jr. (argued), Law Office of James M. Speer, El Paso, TX, for El Paso County Water Improvement Dist. No. 1.
Appeals from the United States District Court for the Western District of Texas.
Before JOLLY, HIGGINBOTHAM and STEWART, Circuit Judges.
Southwestern Bell Telephone Co. ("SWBT") brought a suit under 42 U.S.C. § 1983 for declaratory and injunctive relief against the City of El Paso and El Paso County Water Improvement District No. 1 ("EPCWID"), claiming that EPCWID's application process and fees for the use of its facilities constituted an illegal taking in violation of the Fifth Amendment as well as the Contract Clause of the Constitution, and a violation of the Federal Telecommunications Act of 1996 ("FTA").1 SWBT also alleged that EPCWID's actions violated state law, particularly Texas Utility Code § 181.082. The district court granted summary judgment in favor of SWBT, but denied its request for attorney's fees pursuant to 42 U.S.C. § 1988. We affirm the grant of summary judgment in favor of SWBT, but reverse the district court's denial of attorney's fees. We therefore remand the case to the district court for a determination of reasonable attorney's fees pursuant to § 1988.
SWBT is a provider of telecommunications services and holds a certificate of convenience and necessity issued by the Public Utility Commission of Texas ("PUC"). EPCWID is a water district operating under Article XVI, Section 59, of the Texas Constitution. At the center of the controversy between SWBT and EPCWID is a series of irrigation canals, laterals and ditches deeded from the United States Bureau of Reclamation to EPCWID in January 1996. Development in the area of EPCWID's facilities has resulted in a number of roads being built across the facilities and has also resulted in an increase in the demand for telephone services.
EPCWID established application procedures for entities wanting to cross its facilities, including the completion of an application payment of an application fee of $500, and the obtaining of a survey at the applicant's expense. Before the survey is ordered, EPCWID's Board of Directors must preliminarily approve the application. After the survey is completed, if the application is approved, the Board assesses an ad hoc charge for the crossing, based on the length of the crossing to be used and the nature of the applicant.
SWBT has placed its lines and cables across EPCWID's facilities without submitting to EPCWID's application process. The current dispute arose when SWBT began laying a new fiber optic cable along Texas State Highway 20, crossing one of EPCWID's facilities. EPCWID threatened to arrest the line crews for trespass and remove the cables there and elsewhere if SWBT did not comply with EPCWID's application process and pay a fee for use of EPCWID's facilities.
SWBT sought declaratory relief against EPCWID, arguing that (1) EPCWID's application fees violate the FTA and state law; (2) roads and highways crossing EPCWID's ditches, laterals, and canals are public roadways; (3) EPCWID has no right to charge for telephone lines crossing its canals, ditches and laterals when those lines are within the rights-of-ways of public roadways; (4) the water flowing through EPCWID's canals and ditches is public; and (5) EPCWID has no right to charge for telephone lines crossing public waters. EPCWID filed a counterclaim, alleging that SWBT has trespassed on its property.
EPCWID and SWBT moved for summary judgment, and EPCWID requested leave to file a second amended counterclaim. The district court denied EPCWID's motion for leave to amend. Following a stay for an interlocutory appeal of EPCWID's Eleventh Amendment defense,2 the district court granted summary judgment in favor of SWBT and denied EPCWID's motion for summary judgment on its counterclaims. Following entry of judgment, SWBT filed a motion for attorney's fees and EPCWID moved to alter or amend the judgment. The court denied both motions, and SWBT appeals the denial of attorney's fees. EPCWID cross-appeals the grant of summary judgment in favor of SWBT, the denial of its summary judgment motion, and the denial of its motion to alter or amend the judgment.
We begin by addressing EPCWID's assertion that the district court abused its discretion by not giving the parties ten days notice prior to taking the summary judgment motions under consideration, a notice it argues is required by Rule 56(c)3.
We rejected that argument in Jackson v. Widnall.4 There we stated:
Rule 56(c) merely requires the court to give the non-movant an adequate opportunity to respond prior to a ruling. We have previously rejected [this] very argument, noting that rule 56(c) requires neither an oral hearing nor advance notice of a "date certain" on which a motion for summary judgment is to be decided; instead, "if there is not a hearing, the adverse party must have at least ten days to respond to the motion for summary judgment."5
The local rules of the Western District of Texas, the ones at issue here, satisfy the notice requirements of Rule 56(c) by requiring that a response to a summary judgment motion be filed within a specified period of time.6 Here, EPCWID filed a response, which it had ample opportunity to supplement before the court ruled. The court delayed consideration of the motions, but there is no evidence that it lulled EPCWID into prejudicial inaction, and this delay is not enough to warrant a finding of an abuse of discretion.7
We next turn to EPCWID's assertion that the district court abused its discretion in refusing to allow EPCWID to amend its pleadings for a third time to include additional counterclaims including breach of contract. The district court found undue delay on the part of EPCWID, noting
We review the district court's denial of leave to amend for abuse of discretion.8 We recently stated that:
Federal Rule of Civil Procedure 16(b) governs amendment of pleadings once a scheduling order has been issued by the district court. Rule 16(b) provides that a scheduling order "shall not be modified except upon a showing of good cause and by leave of the district judge." The good cause standard requires the "party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension."9
Thus, EPCWID must show good cause for not meeting the deadline before the more liberal standard of Rule 15(a) will apply to the district court's denial of leave to amend.10
In determining good cause, we consider four factors: "(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice."11 The district court previously extended the deadline and allowed EPCWID to twice amend its pleadings to add counterclaims. EPCWID was aware of the contract that forms the basis of its proposed amendment months in advance of the deadline and does not offer a satisfactory explanation for its delay in seeking leave to amend. When combined with the prejudice to SWBT in allowing untimely additional counterclaims, and the likely failure of the proposed counterclaims on the merits, we find that the court did not abuse its "broad discretion to preserve the integrity and purpose of the pretrial order."12
EPCWID asserts that the district court erred in granting SWBT's motion for summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."13 We review a grant of summary judgment de novo, applying the same standards as did the district court.14
SWBT moved for summary judgment, relying on both state and federal law, and requested that the district court declare
Southwestern Bell's right under Texas and federal law to use the roads and cross the waters controlled by EPCWID. Further, the Court should also declare that EPCWID has no authority under the Texas Water Code or the Texas constitution provision to which it owes its existence to charge the general public for crossing over its waters....
We begin by considering SWBT's argument that Texas Utilities Code § 181.082 authorizes SWBT to cross EPCWID's facilities without submitting to EPCWID's application process and paying EPCWID a fee for the crossing. Section 181.082 reads: "A telephone or telegraph corporation may install a facility of the corporation along, on, or across a public road, a public street, or public water in a manner that does not inconvenience the public in the use of the road, street, or water."15
At the outset, we find no merit in EPCWID's contention...
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...a date for submission, or for the court to give ten days’ notice before consideration. Southwestern Bell Tel. Co. v. City of El Paso , 346 F.3d 541, 545 (5th Cir. 2003). This time limit generally is not followed by the federal courts in Texas. Instead, deadlines for filing summary judgments......
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...a date for submission, or for the court to give ten days’ notice before consideration. Southwestern Bell Tel. Co. v. City of El Paso , 346 F.3d 541, 545 (5th Cir. 2003). This time limit generally is not followed by the federal courts in Texas. Instead, deadlines for filing summary judgments......