Metropolitan Govt. v. Bellsouth Telecom.
| Decision Date | 13 July 2007 |
| Docket Number | No. 3:06cv0321.,3:06cv0321. |
| Parties | METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Plaintiff, v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
Thomas G. Cross, Metropolitan Legal Department, Nashville, TN, for Plaintiff.
Brad A. Lampley, Adams and Reese/Stokes Bartholomew, Nashville, TN, Dorian S. Denburg, BellSouth Telecommunications, Inc., Atlanta, GA, for Defendant.
Before the Court are cross motions for summary judgment filed by Plaintiff Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro") and by Defendant BellSouth Telecommunications, Inc. ("BST"). (Doc. No. 27 (Plaintiff's motion); Doc. No. 30 (Defendant's motion).) Both motions have been fully briefed, and a hearing on the issues was conducted on Thursday, June 28, 2007 at 10:00 a.m.
Both parties seek summary judgment as to all three Counts in Metro's Complaint. The legal issue presented by Count One is whether Metro or BST is responsible for paying the costs associated with relocating BST's lines and facilities in order to accommodate the excavation and construction of the new underground parking garage and park (the "Public Square project") in front of the Metropolitan Nashville and Davidson County Courthouse ("Metro Courthouse") in downtown Nashville. In Counts Two and Three, Metro seeks a declaration and an injunction regarding BST's obligation to relocate its facilities and equipment located within the public rights-of-way to accommodate future public works or projects, at its own cost, upon Metro's reasonable request.
Having reviewed the parties' filings and heard oral arguments on the pertinent issues, the Court finds that Metro's motion for summary judgment as to. Count One must be denied and BST's motion regarding the same count should be granted. As to Count Three, the Court will deny Metro's request for an injunction, and will grant summary judgment to BST as to that count. However, the Court finds that a limited declaration is appropriate to clarify the parties' legal relations and prevent future litigation. The Court will therefore grant Metro's motion for summary judgment as to Count Two, and will deny BST's motion for summary judgment on that issue, as set forth in greater detail below.
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party has the burden of showing an "absence of a genuine issue of material fact as to an essential element of the nonmovant's case." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). The moving party may do this by providing affidavits or other proof or by showing lack of evidence on an issue for which the non-moving party will have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must then present specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). In essence, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991). The court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. Westfield Ins. Co. v. Tech Dry. Inc., 336 F.3d 503, 506-07 (6th Cir.2003); Taft Broad. Co., 929 F.2d at 248. Thus, when a court denies summary judgment to one party on the ground that it is granting summary judgment to another party, the denial of summary judgment is based on a legal conclusion rather than the district court's finding of a genuine issue of material fact. Black v. Roadway Express, Inc., 297 F.3d 445, 448 (6th Cir.2002). However, "[t]he fact that both parties make motions for summary judgment ... does not require the Court to rule that no fact issue exists." Begnaud v. White, 170 F.2d 323, 327 (6th Cir.1948) (cited Cherokee Ins. Co. v. E.W. Blanch Co., 66 F.3d 117, 122 n. 4 (6th Cir.1995)). If inferences may be drawn in favor of either party, it may be appropriate to deny summary judgment to both parties. See Taft Broad. Co., 929 F.2d at 248 (6th Cir.1991) ().
Plaintiff Metro is a governmental entity created and existing under and by virtue of the constitution and laws of the State of Tennessee. Among other municipal functions, Metro maintains a system of streets, roads, parks and other public properties. Defendant BST owns and operates a business that provides telecommunications and other services in Davidson County and throughout Tennessee. In the course of its business, BST regularly places, operates and maintains wires, poles, devices and equipment in areas comprising public rights-of-way.
BST operates and maintains its telecommunications lines and facilities along the streets and within cities of Tennessee pursuant to a statewide grant of authority to do so set forth in Tenn.Code Ann. § 65-21-201, the original version of which was enacted in 1885. In addition, in 1888, the City of Nashville entered into a non-exclusive franchise agreement with Cumberland Telephone & Telegraph Company, a predecessor of BST, giving the telephone company a non-exclusive "right to erect and maintain in operation telegraph poles, cables, and wires over the various streets, alleys and squares of the city ... for the purpose of transmitting messages by telephone." (Complaint, Ex. 1, at § 2.) One of the areas where BST lawfully maintained lines and facilities pursuant to the franchise agreement and state law was in the right-of-way along Deaderick Street in downtown Nashville.
The present dispute arose in the context of the need to relocate BST's lines and equipment installed along the Deaderick Street right-of-way2 to accommodate the excavation and construction of the underground parking facility, a component of the Public Square project. The parties dispute which one of them should be required to bear the cost of relocating BST's facilities and lines. BST refused to move its equipment and lines at its own expense and demanded that Metro pay the costs of relocation to BST in advance. In order to avoid a delay in construction of the Public Square project, Metro paid $97,777 in relocation costs directly to BST, under protest and with a reservation of rights, and paid an additional $175,725.89 directly to a Metro contractor to assist with the line relocation. The parties agree that Metro incurred costs totaling $273,502.89 in relocating BST's telecommunications facilities from the Deaderick Street right-of-way in connection with construction of the Public Square parking garage and park, and that such costs were reasonable in light of the work done.
Metro filed this action seeking recovery of the costs incurred in connection with moving BST's lines and equipment to accommodate the Public Square project. In addition, Metro seeks a declaration that BST is required by law and contract to relocate its facilities from a public rights-of-way at its own cost whenever Metro reasonably requests that it relocate any such facilities that interfere with public works or projects. Metro also seeks a permanent injunction barring BST from refusing in the future to relocate at its cost equipment and facilities that interfere with roadway improvement work within Metro. (See Complaint, Counts 1-3.)
"Under the traditional common law rule, utilities have been required to bear the cost of relocating from a public right-of-way whenever requested to do so by state or local authorities." Norfolk Redev. & Housing Auth. v. Chesapeake & Potomac Tel. Co. of Va., 464 U.S. 30, 35, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983) (). Under the common law, "[t]he grantee of a franchise to use the streets takes it subject to the right of the municipality to make public improvements whenever and wherever the public interest demands, and if the improvement causes injury to the company, as by requiring it to relay or change the location of its pipes, tracks, or poles, or otherwise, the grantee of the franchise cannot recover damages from a municipality unless otherwise provided by contract or statute." 12 E. McQuillin, The Law of Municipal Corporations § 34.72 (3d ed. 1970). The Tennessee Supreme Court has expressly recognized this rule, having held in the context of the removal of telephone lines and other facilities from a public right-of-way along a state highway that, "in the absence of a valid reimbursement statute, relocation costs under the common law rule must be borne by the utilities involved." Pack v. S. Bell Tel. & Tel. Co., 215 Tenn. 503, 387 S.W.2d 789, 793 (1965); see also S. Cent. Bell Tel. Co. v. City of Chattanooga, 578 S.W.2d 950, 952 (T...
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