DeKalb County v. Southern Bell Tel. & Tel. Company, Civ. A. No. 16776.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Writing for the CourtHENDERSON
Citation358 F. Supp. 498
PartiesDeKALB COUNTY, GEORGIA v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.
Decision Date30 October 1972
Docket NumberCiv. A. No. 16776.

358 F. Supp. 498

DeKALB COUNTY, GEORGIA
v.
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.

Civ. A. No. 16776.

United States District Court, N. D. Georgia, Atlanta Division.

October 30, 1972.


358 F. Supp. 499
COPYRIGHT MATERIAL OMITTED
358 F. Supp. 500
George P. Dillard, Decatur, Ga., for plaintiff

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, Ga., for defendant.

ORDER

HENDERSON, District Judge.

In this action of the plaintiff, DeKalb County, Georgia (sometimes hereinafter referred to as the "County"), against the Southern Bell Telephone and Telegraph Company (hereinafter referred to as "Southern Bell"), the defendant filed a motion to dismiss and a motion to strike and disallow an amendment to the plaintiff's complaint.

This suit stems from earlier legal action initiated by Southern Bell against the County, seeking to enjoin an ordinance adopted by the County requiring payment of fees and charges by the defendant, Southern Bell, and other public utilities, doing business in the unincorporated areas of DeKalb County, Georgia and using the rights-of-way of the county.1 In the case of Southern Bell, the fees are based upon the number of telephones in service in the unincorporated areas of the County. (In the County's answer and counterclaim in the state action, it sought past rentals for five previous years at a rate of $400,000.00 per year.) By order of August 3, 1971, the Honorable H. O. Hubert, Jr., Judge, Superior Courts, Stone Mountain Judicial Circuit, issued an interlocutory injunction, restraining the County from enforcing the provisions of the ordinance. Judge Hubert declared the provisions of the ordinance void as being inconsistent with, and contradicted by, a local constitutional amendment authorizing legislation enabling the County Board of Commissioners to regulate and license certain businesses in the unincorporated areas of the County. Subsequently, the County appealed this decision to the Supreme Court of Georgia, which affirmed the trial court's holding. DeKalb County, Georgia, et al. v. Southern Bell Telephone and Telegraph Company, 228 Ga. 512, 514, 186 S.E.2d 732, 735 (1972). The court stated that:

the County of DeKalb has no constitutional or statutory authority to impose the taxes and charges contained in the ordinance under attack in these cases, either as a tax or as a "rental" of its streets and rights of way and the trial court did not err in holding the ordinance void, and granting interlocutory injunction against its enforcement.

The County now brings suit against Southern Bell in this court to recover monies from rental of the rights-of-way in the unincorporated areas of the county as provided by the ordinance declared unconstitutional by the Georgia Supreme Court, DeKalb County, et al, supra.

The present petition, as amended, is in four counts, each alleging the purported basis for jurisdiction in this court. The County, in Count One, contends that under the February 9, 1972, ordinance, as adopted by the Board of Commissioners of the County, the defendant owes the County $800,000.00 for the use of county rights-of-way in unincorporated areas during the years of 1970 and 1971. (The ordinance provides that a fee of $400,000.00 per year will

358 F. Supp. 501
be assessed telephone companies having over 200,000 telephones in use in the unincorporated areas of the County.) Jurisdiction for this court is alleged to be diversity of citizenship

The second count of the complaint, which is also based upon diversity of citizenship, alleges that the defendant uses the County's rights-of-way and is therefore required to pay the county rental thereon in the form of a reasonable sum on a quantum meruit basis. The plaintiff contends that a reasonable rental for the past four years is the sum of $400,000.00 per year or a total of $1,600,000.00 with reasonable attorney's fees and all court costs.

Count Three of plaintiff's complaint alleges jurisdiction under 28 U.S.C. § 1343(3); 42 U.S.C. §§ 1981, 1983 and 1988; and pendent jurisdiction. This count is brought as a class action on behalf of the plaintiff and its residents who are telephone users in the unincorporated areas of the County. The plaintiff and its class, it claims is being unconstitutionally discriminated against because they are being charged the same telephone rates as those county residents who are located within the municipalities of the County. These municipalities allegedly require the defendant to pay rental for rights-of-way use within their boundaries. According to the plaintiff, this is a discriminatory application of the Georgia Public Service Commission Act (Ga.Laws 1956, pp. 104 et seq.; Ga.Code Ann. § 93-701 et seq.) by the Public Service Commission, which approves all rates and services of utilities, and the defendant because there is no adjustment in the rates for these franchise taxes and fees paid to the municipalities but not paid to the County, and, therefore, violates the Fourteenth Amendment's equal protection and due process clauses. As a result of this practice, those County residents living in unincorporated areas are being disproportionately taxed since the County must rely upon tax revenues for the acquisition and maintenance of its road rights-of-way whereas the municipalities do not have to provide such funds from tax revenue. The plaintiff asks for a judgment against the defendant in the sum of $1,600,000.00 or, in the alternative, that the court grant injunctive relief against collection, by the defendant, of its rates and charges as established and approved by the Georgia Public Service Commission for the unincorporated areas of the County, until such rates are adjusted to a proper level.

The fourth and final count of the plaintiff's complaint is based on diversity jurisdiction and seeks a declaration of the plaintiff's rights to impose rents and charges for the use of its road rights-of-way and injunctive relief to prohibit the defendant from refusing to provide telephone services in those unincorporated areas of the County where the plaintiff is attempting to collect rights-of-way rental.

In essence, the defendant's motion to dismiss is founded on two premises: (1) that none of the plaintiff's four counts are based upon proper jurisdiction to enable this court to entertain this case; and (2) that the plaintiff's right of recovery under the County's ordinance has been decided by the Georgia Supreme Court in the case of DeKalb County, Georgia et al. v. Southern Bell Telephone and Telegraph Co., supra, which ruled the ordinance unconstitutional. Subsequently, the plaintiff filed a proposed amendment to its complaint. The defendant moved to strike and disallow the amendment and to dismiss the complaint in its entirety if the amendment is allowed. The defendant's motion to strike is based on the ground that the amendment adds nothing to the original suit's substance and it does not supply the deficiencies present in the original complaint.

The motions will be considered in the order of their filing, taking first the defendant's motion to dismiss the complaint.

It is unnecessary here to consider the question of jurisdiction of plaintiff's Counts One, Two and Four. It

358 F. Supp. 502
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13 practice notes
  • Frilette v. Kimberlin, Nos. 73-1622
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 27, 1975
    ...to broad discovery under the Federal Rules without any showing of good cause or other particular reason for the requested discovery.' 358 F.Supp. at 498 n. 7. Thus, Frilette argues, losing parties in interference proceedings are more inclined to bring a civil action under 35 U.S.C. 146 if b......
  • Hawaiian Telephone Co. v. Public Utilities Com'n of State of Hawaii, Nos. 85-1907
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 11, 1987
    ...must be present to deprive the district court of jurisdiction. 22 DeKalb County v. Southern Bell Telephone & Telegraph Company, 358 F.Supp. 498, 504 (N.D.Ga.1972), aff'd, 478 F.2d 700 (5th Cir.1973); United States v. Public Utilities Commission, 141 F.Supp. 168, 188 (N.D.Cal.1956), aff'd, 3......
  • South Cent. Bell Telephone Co. v. Louisiana Public Service Com'n, No. 83-3494
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 11, 1984
    ...of the [state action] to the Federal Constitution." Id., Sec. 1342(1); see also DeKalb County v. Southern Bell Tel. & Tel. Co., 358 F.Supp. 498, 504 (N.D.Ga.1972) (all four preconditions must be present before Johnson Act is applicable), aff'd, 478 F.2d 700 (5th Cir.1973). As the district c......
  • Zucker v. Bell Telephone Company of Pennsylvania, Civ. A. No. 72-2460.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 29, 1974
    ...City of Meridian, Miss. v. Mississippi Valley Gas Co., 214 F.2d 525 (5th Cir. 1954); DeKalb County v. Southern Bell Tel. & Tel. Company, 358 F.Supp. 498 (N.D.Ga. 1972) aff'd, 478 F.2d 700 (5th Cir. 1973). See 1-A J. Moore, Federal Practice, ¶¶ 0.206, 0.207, pp. The Act provides that the dis......
  • Request a trial to view additional results
13 cases
  • Frilette v. Kimberlin, Nos. 73-1622
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 27, 1975
    ...to broad discovery under the Federal Rules without any showing of good cause or other particular reason for the requested discovery.' 358 F.Supp. at 498 n. 7. Thus, Frilette argues, losing parties in interference proceedings are more inclined to bring a civil action under 35 U.S.C. 146 if b......
  • Hawaiian Telephone Co. v. Public Utilities Com'n of State of Hawaii, Nos. 85-1907
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 11, 1987
    ...must be present to deprive the district court of jurisdiction. 22 DeKalb County v. Southern Bell Telephone & Telegraph Company, 358 F.Supp. 498, 504 (N.D.Ga.1972), aff'd, 478 F.2d 700 (5th Cir.1973); United States v. Public Utilities Commission, 141 F.Supp. 168, 188 (N.D.Cal.1956), aff'd, 3......
  • South Cent. Bell Telephone Co. v. Louisiana Public Service Com'n, No. 83-3494
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 11, 1984
    ...of the [state action] to the Federal Constitution." Id., Sec. 1342(1); see also DeKalb County v. Southern Bell Tel. & Tel. Co., 358 F.Supp. 498, 504 (N.D.Ga.1972) (all four preconditions must be present before Johnson Act is applicable), aff'd, 478 F.2d 700 (5th Cir.1973). As the district c......
  • Zucker v. Bell Telephone Company of Pennsylvania, Civ. A. No. 72-2460.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 29, 1974
    ...City of Meridian, Miss. v. Mississippi Valley Gas Co., 214 F.2d 525 (5th Cir. 1954); DeKalb County v. Southern Bell Tel. & Tel. Company, 358 F.Supp. 498 (N.D.Ga. 1972) aff'd, 478 F.2d 700 (5th Cir. 1973). See 1-A J. Moore, Federal Practice, ¶¶ 0.206, 0.207, pp. The Act provides that the dis......
  • Request a trial to view additional results

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