498 F.3d 127 (2nd Cir. 2007), 05-4935, New Phone Co., Inc. v. City of New York

Docket Nº:05-4935-cv(L), 05-5490-cv(CON), 05-5502-cv(CON).
Citation:498 F.3d 127
Party Name:The NEW PHONE CO., INC., and Best Payphones, Inc., Plaintiffs-Appellants, v. CITY OF NEW YORK, New York City Department of Information Technology and Telecommunications, and Gino Menchini, in his Official Capacity, Defendants-Appellees.
Case Date:May 16, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 127

498 F.3d 127 (2nd Cir. 2007)

The NEW PHONE CO., INC., and Best Payphones, Inc., Plaintiffs-Appellants,

v.

CITY OF NEW YORK, New York City Department of Information Technology and Telecommunications, and Gino Menchini, in his Official Capacity, Defendants-Appellees.

Nos. 05-4935-cv(L), 05-5490-cv(CON), 05-5502-cv(CON).

United States Court of Appeals, Second Circuit.

May 16, 2007

Argued: November 14, 2006.

Amended: August 10, 2007.

Page 128

Charles H. Ryans, New York, NY, for Appellants.

Karen M. Griffin, Corporation Counsel of the City of New York (Michael A. Cardozo, Francis F. Caputo, Michael S. Adler, and Jerald Horowitz, of counsel), for Appellees.

Before: JACOBS, Chief Judge, SACK, Circuit Judge, and OBERDORFER, District Judge.[*]

PER CURIAM:

This opinion addresses three consolidated appeals. In 05-4935-cv(L), the plaintiffs-appellants The New Phone Co., Inc. and Best Payphones, Inc. (collectively, "New/Best") jointly appeal from an August 5, 2005 order (Gleeson, J.) ("August 5 Order") sua sponte dismissing complaint number 05-cv-1702. In 05-5490-cv(C) and 05-5502-cv(C), New Phone and Best Payphone each appeal from an August 26, 2005 order (Gleeson, J.) ("August 26 Order") denying their requests to file new complaints under the terms of a filing injunction issued by the district court in the August 5 Order.

I. Background

Established telephone companies such as Verizon provide the vast bulk of payphone services in New York City. New/Best have for several years operated what may fairly be described as fringe payphone services. For example, they place payphones on the outside of buildings and

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connect them to the lines maintained by the established telephone service companies. In 1996, New York City created a new regulatory scheme governing these fringe payphone businesses which, among other things, required them to obtain a franchise agreement from the City. New/Best objected to the new scheme and reacted by filing suit against the City. Since that time, the City has denied their repeated requests for franchise agreements and has taken various allegedly discriminatory and retaliatory actions against them. Over the years, New/Best generally responded to new City regulations by moving to amend their pending complaints. Concerned they would run afoul of a local four-month statute of limitations, they also often simultaneously filed new complaints. By the end of 2004, New/Best had seven complaints against the City pending in the Eastern District of New York. In addition, New/Best and the City have filed a number of procedural motions as they vigorously litigated.

In December 2004, the City adopted new regulations further affecting New/Best's businesses: (1) a six percent fee increase for new pay phones, and (2) a bar on future advertising on payphone enclosures in Manhattan below 96th Street. In...

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