Clear Channel Outdoor, LLC v. City of New Rochelle

• Decision Date: 20 October 2022
• Docket Number: 20-CV-9296 (NSR) (AEK)
• Parties: CLEAR CHANNEL OUTDOOR, LLC Plaintiff, v. CITY OF NEW ROCHELLE, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

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CLEAR CHANNEL OUTDOOR, LLC Plaintiff, v. CITY OF NEW ROCHELLE, et al., Defendants.

No. 20-CV-9296 (NSR) (AEK)

United States District Court, S.D. New York

October 20, 2022

ORDER & OPINION ADOPTING REPORT AND RECOMMENDATION IN PART AND REVERSING IN PART

HON NELSON S. ROMAN UNITED STATES DISTRICT JUDGE

Plaintiffs Clear Channel Outdoor, LLC (“Clear Channel”) and Vector Media, LLC^[1](together, “Plaintiffs”) bring this action against the City of New Rochelle (the “City”); Luiz Aragon, in his official capacity as Commissioner of Development; and Paul Vacca, in his official capacity as Building Official (collectively, the “Defendants”), asserting various claims related to the New Rochelle City Code and a September 2020 order requiring that Plaintiffs remove several billboards from the City. (ECF No. 1 (“Compl.”)). This case was referred to Magistrate Judge Andrew E. Krause (Judge Krause”), pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b)(1).

On September 9, 2022, Judge Krause issued a Report and Recommendation (“R&R”) on Plaintiffs' motion for partial summary judgment on Count IX of the Complaint, which seeks declaratory judgment regarding the scope of New Rochelle Code § 270-16 (the “Billboard Ordinance”), as well as a permanent injunction against Defendants' application of the Billboard Ordinance against its billboards built or enlarged after March 20, 2001. (ECF No. 97.) In the R&R, Judge Krause recommends denying the motion solely because he deemed that Defendants raised a triable issue of fact regarding their affirmative defense of laches with respect to Count IX. (R&R at 1.)

For the reasons articulated below, the Court reverses the R&R's finding that Defendants can raise an affirmative defense of laches on Count IX, and therefore grants Plaintiffs' summary judgment motion as against Count IX of the Complaint. The Court adopts the other portions of the R&R.

BACKGROUND

The Court presumes familiarity with the factual and procedural background of this case. Further facts can be found in the R&R. (See ECF No. 170.)

On December 17, 2021, Clear Channel was granted a briefing schedule on its motion for partial summary judgment as to Count IX of the Complaint, while discovery was still being undertaken. (See ECF No. 96.) Count IX of the Complaint seeks declaratory judgment over the scope of the Billboard Ordinance-specifically, Plaintiffs seek a declaration as to whether five of their billboards located within the City limits along the Interstate 95 corridor (the “I-95 Billboards”) are subject to the Billboard Ordinance, which in relevant part, requires removal by December 31, 2020 of certain billboards which existed on March 20, 2001, without any enlargement at any time thereafter. (Compl. ¶¶ 166-72.) See New Rochelle Code § 270-16. As explained more fully in the R&R, in September 2020, the City ordered Clear Channel to remove its billboards, including the I-95 Billboards pursuant to the Billboard Ordinance and soon after amended the Billboard Ordinance to impose daily and escalating fines for failing to remove billboards after receiving notice from a City official. (See R&R at 7.)

Vector Media LLC joined Clear Channel's partial summary judgment motion on December 29, 2021, asserting that its claims are based on the same arguments set forth by Clear Channel in its motion. (See ECF No. 27.) The parties completed their briefing on their partial summary judgment motion by February 16, 2022, though discovery was still ongoing at that time. Because Clear Channel represented that the motion for partial summary judgment could be decided without a complete record, Judge Krause did not permit the parties to file supplemental briefing based on additional discovery that came to light while the motion was pending. (See R&R at 10.)

Judge Krause issued the R&R on September 9, 2022. First, Judge Krause addressed the parties' arguments regarding whether under a prior stipulation of settlement,^[2] entered on October 16, 2000 (the “Stipulation”), the I-95 Billboards should be construed as having existed at the time of entry of the Stipulation, even if they were in fact built or enlarged afterwards. (R&R 12-17.) After determining that the I-95 Billboards could not be read as having existed at the time of entry of the Stipulation, and noting that the parties do not dispute that the I-95 Billboards were actually constructed or enlarged after March 20, 2001, Judge Krause determined that the Billboard Ordinance, therefore, does not apply to those billboards. (Id. at 17, 19.) However Judge Krause nonetheless denied Plaintiffs' partial summary judgment motion after determining that Defendants raised a triable issue of fact regarding their affirmative defense of laches. (Id. at 21-28.) Defendants based their laches defense on the fact that Plaintiffs did not bring suit when the City issued a Request for Proposals (“RFP”) in 2015 or 2016 from advertising media firms to develop advertisements within the City, including billboards on the I-95 corridor, and which purportedly made clear that the then-current billboards on I-95 would have to be removed by January 1, 2021. (R&R at 22.) Finally, Judge Krause rejected other affirmative defenses raised by Defendants, including equitable estoppel. (Id. at 28-33.)

The parties timely filed objections to the R&R on September 23, 2022, and timely filed responses to the objections on October 7, 2022.^[3] (ECF Nos. 177-78, 185-87).

LEGAL STANDARD

A magistrate judge may “hear a pretrial matter dispositive of a claim or defense” if so designated by a district court. See Fed.R.Civ.P. 72(b)(1); 28 U.S.C. § 636(b)(1)(B). In such a case, the magistrate judge “must enter a recommended disposition, including, if appropriate, proposed findings of fact.” Fed.R.Civ.P. 72(b)(1); 28 U.S.C. § 636(b)(1). Where a magistrate judge issues a report and recommendation,

[w]ithin fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.

28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2), (3). However, “[t]o accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.” Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003) (quoting Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985)); see also Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (“[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision.”) (quoting Small v. Sec. of HHS, 892 F.2d 15, 16 (2d Cir. 1989)); Fed.R.Civ.P. 72 advisory committee note (1983 Addition, Subdivision (b) (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”)).

To the extent a party makes specific objections to an R&R, a district court must review those parts de novo. 28 U.S.C. 636(b)(1)(C); Fed.R.Civ.P. 72(b); United States v. Mate Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In de novo review, district courts must consider the “[r]eport, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies.” Diaz v. Girdich, No. 04-cv-5061, 2007 WL 187677, at *1 (S.D.N.Y. Jan. 23, 2007) (internal quotation marks omitted). But to the extent “a petition makes only general and conclusory objections . . . or simply reiterates the original arguments, the district court will review the report and recommendations strictly for clear error.” Harris v. Burge, No. 04-cv-5Q66, 2008 WL 772568, at *6 (S.D.N.Y. Mar. 25, 2008). The distinction turns on whether a litigant's claims are “clearly aimed at particular findings in the magistrate's proposal” or are a means to take a “‘second bite at the apple' by simply relitigating a prior argument.” Singleton v. Davis, No. 03-cv-1446, 2007 WL 152136, at *1 (S.D.N.Y. Jan. 18, 2007) (citation omitted).

In addition, the Court will not consider new arguments that could have been raised before Judge Krause. See United States v. Gladden, 394 F.Supp.3d 465, 480 (S.D.N.Y. 2019) (“In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (citations omitted).

DISCUSSION

Defendants agree with the R&R's determination on laches, but challenge most of the other portions of the R&R. Defendants argue that Judge Krause erred by (i) finding that the Stipulation and Board Ordinance's unambiguous language does not apply to Plaintiff's I-95 Billboards (ii) failing to consider extrinsic evidence showing that Clear Channel purportedly understood that it needed to remove its I-95 Billboards as of December 31, 2020; and (iii) rejecting Defendant's affirmative defense under equitable estoppel. (See ECF No. 177 (“Defs.' Objections”), at 14-21.)^[4]

Plaintiffs on the other hand, only contest Judge Krause's determination that there is a material issue of fact regarding whether Defendants may raise an affirmative defense of laches. (See ECF No. 178 (“Pl.'s Objections”) at 5.) Plaintiffs argue that laches is unavailable to Defendants because: “(i) the City waived any timeliness defense in the Stipulation; (ii) equitable...