Russell's Garden Center, Inc. v. Nextel Communications
| Decision Date | 16 December 2003 |
| Docket Number | No. CIV.A.03-10517-REK.,CIV.A.03-10517-REK. |
| Citation | 296 F.Supp.2d 13 |
| Parties | RUSSELL'S GARDEN CENTER, INC.; Edmund C. Rice; George L. Rice; Allison C. Russell; Charlotte B. Russell; Trustee of the 105 Pelham Island Road Trust; Timothy Skehan; Trustee of the 101 Pelham Island Road Trust; Ann S. Webster; and Trustee of the 262-292 Boston Post Road Realty Trust, Plaintiffs v. NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC., d/b/a Nextel Communications; the Town of Wayand, Massachusetts; Zoning Board of Appeals of the Town of Wayland; Steven James Fugarazzo, Lawrence K. Glick, Eric B. Goldberg, James E. Grumbach, Susan F. Koffman, Carolyn J. Klein, Mary L. Lentz, and Shaunt H. Sarian, as Members of the Zoning Board of Appeals of the Town of Wayland; Massachusetts Bay Transportation Authority; and Boston Edison Company, Defendants |
| Court | U.S. District Court — District of Massachusetts |
Edward J. Collins, Cambridge, for Edmund C. Rice, George L. Rice, Allison C. Russell, Charlotte B. Russell, Timothy Skehan, Trustee of 105 Pelham Island Road Trust, Trustee of 101 Pelham Island Road Trust, Ann S. Webster, Trustee of 262-292 Boston Post Road Realty Trust.
Matthew R. Johnson, Steven E. Grill, Devine, Millimet & Branch, Manchester, NH, for Nextel Communications of Mid-Atlantic, Inc.
Mark J. Lanza, Town Counsel, Town of Harvard, Concord, MA, Matthew R. Johnson, Devine, Millimet & Branch, Manchester, NH, for Nextel Communications The Town of Wayand, Massachusetts, Zoning Board of Appeals of the Town of Wayland, Steven James Fugarazzo, as a member of the Zoning Board of Appeals of the Town of Wayland, Lawrence K. Glick, as a member of the Zoning Board of Appeals of the Town of Wayland, Eric B. Goldberg, as a member of the Zoning Board of Appeals of the Town of Wayland, James E. Grumbach, as a member of the Zoning Board of Appeals of the Town of Wayland, Susan F. Koffman, as a member of the Zoning Board of Appeals of the Town of Wayland, Carolyn J. Klein, as a member of the Zoning Board of Appeals of the Town of Wayland, Mary L. Lentz, as a member of the Zoning Board of Appeals of the Town of Wayland, Shaunt H. Sarian, as a member of the Zoning Board of Appeals of the Town of Wayland, Massachusetts Bay Transportation Authority Boston Edison Comp.
Pending for decision are matters related to the following filings:
(1) Defendant Nextel's Motion for Entry of Final Judgment (Docket No. 16, filed June 25, 2003), Memorandum in Support (Docket No. 17, filed June 25, 2003), and Supplemental Memorandum in Support (Docket No. 19, filed September 30, 2003);
(2) Plaintiffs' Position Statement (Docket No. 22, filed October 10, 2003);
(3) Plaintiffs' Reply to Defendant Nextel's Supplemental Memorandum in Support of its Motion for Entry of Final Judgment (Docket No. 23, filed October 30, 2003); and
(4) Defendant Nextel's Motion to Strike Plaintiffs' Reply to Nextel's Supplemental Memorandum of Law (Docket No. 24, filed November 13, 2003).
Defendant Nextel is a provider of personal wireless services in areas including Massachusetts. It now has no antenna facilities in the town of Wayland, Massachusetts. In the mid-1990s, Nextel obtained permission from the Boston Edison Electric Company ("BECO") to attach antennas to an existing electric transmission tower. On January 29, 2002, the Town's Zoning Board of Appeals denied Nextel permission to attach antennas to the BECO tower. On February 15, 2002, Nextel filed a complaint in the United States District Court for the District of Massachusetts, alleging that Wayland's denial constituted a violation of the Telecommunications Act of 1996, 47 U.S.C. § 337(c)(7)(B) ("TCA"). On November 22, 2002, in Nextel Communications v. Town of Wayland, 231 F.Supp.2d 396 (D.Mass. 2002) ("Nextel I"), this court held that Nextel was entitled to summary judgment in its favor. On January 3, 2003, this court ordered a permanent injunction directing the Town to permit Nextel to install the proposed antenna facility. On January 30, 2003, in accordance with the injunction, the Town of Wayland issued a permit to Nextel ("Second Decision").
On February 19, 2003, the plaintiffs in this case filed a complaint in the Trial Court for the Commonwealth of Massachusetts. The complaint alleges a number of violations of state statutes with respect to the issuance of the Second Decision. Nextel removed to this court, alleging federal question jurisdiction on the grounds that the plaintiffs' suit constituted a collateral attack on this court's January 30, 2003 injunction. At oral hearing on May 28, 2003, I allowed Nextel's Motion to Dismiss (Docket No. 6) and denied the plaintiffs' Motion to Remand (Docket No. 9). The other defendants were not present at the hearing, nor had they filed any papers in this court other than a Notice of Appearance on behalf of some, but not all, of the defendants. I did not certify my order of dismissal as final, nor did I order separate and final judgment.
Nextel now moves that I order final judgment of dismissal against all parties. The plaintiffs request that I remand the case to state court.
At the case management conference on May 25, 2003, the only defendant who appeared was Nextel. I expressed concern that the other defendants had not been properly served, and, in my Memorandum and Order of August 7, 2003, invited submissions regarding service on the other defendants. Plaintiffs' Position Statement (Docket No. 22) presents persuasive evidence showing that the defendants were properly served in conformity with Mass. Gen. L. ch. 40A § 17. Service of process before removal is governed by state law. See Fed.R.Civ.P. 81(c). I conclude that all of the defendants were properly served.
Plaintiffs originally moved to remand (Docket No. 9) on the ground that their complaint was not a collateral attack on this court's injunction, since the parties here were not parties in the original suit and were therefore not bound by the injunction. I denied plaintiffs' motion at the hearing on May 28, 2003.
In position papers filed after my oral ruling, the plaintiffs continue to assert that this court lacks subject-matter jurisdiction, and that the case should be remanded. Because I am obliged to remain vigilant as to questions of this court's subject-matter jurisdiction, and because no party has been prejudiced by intervening procedural events, I conclude that it is appropriate to reconsider my oral rulings of May 28, 2003. The Order below reflects that, after reconsideration, plaintiffs' Motion to Remand (Docket No. 9) is ALLOWED, and defendants' Motion to Dismiss (Docket No. 6) is DISMISSED as moot.
Defendants maintain that subject-matter jurisdiction exists because the complaint represents, in substance, an impermissible collateral attack on this court's injunction in Nextel I. The relief plaintiffs request in their complaint (that is, the request to annul the Second Decision of the Wayland Zoning Board of Appeals issuing a permit to Nextel) would, if granted, negate the effect of the injunction requiring the issuance of the permit. Defendants cite Lucas v. Planning Board of the Town of LaGrange, 7 F.Supp.2d 310, 318-19 (S.D.N.Y. 1998), for the proposition that the All Writs Act, 28 U.S.C. § 1651, permits the exercise of removal jurisdiction to effectuate and protect this court's previous orders.
The Supreme Court, however, expressly disapproved this theory. In Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 34, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002), Hurley Henson sued Syngenta Crop Protection in state court, asserting tort claims related to Syngenta's manufacture of an insecticide. A similar action was underway in federal court, so the state court stayed action until the completion of the federal case. In federal court, Henson intervened and participated in the settlement, which included a requirement that the state cause of action be dismissed. In state court, Henson misrepresented the terms of the settlement to the state judge, and the state judge relied on Henson's misrepresentation in ordering that the action continue. Syngenta removed to federal court, citing the All Writs Act as authority for the federal court to enforce the previous settlement agreement. Id. at 30, 123 S.Ct. 366.
The District Court dismissed, holding that the action was barred by the previous settlement. The Eleventh Circuit reversed, stating that the district court lacked removal jurisdiction. Id. at 31, 123 S.Ct. 366. The Supreme Court, in affirming the Eleventh Circuit decision, held, Id. at 34, 123 S.Ct. 366. Removal, therefore, is improper where the only basis for subjectmatter jurisdiction is the preclusive effect of a previous court injunction.
In these circumstances, an independent basis for subject-matter jurisdiction must be found by looking to the complaint. The Supreme Court has explained:
As a general matter, defendants may remove to the appropriate federal district court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). The propriety of removal thus depends on whether the case originally could have been filed in federal court. [Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429-2430, 96 L.Ed.2d 318 (1987)]; [Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 8, 103 S.Ct. 2841, 2845-2846, 77 L.Ed.2d 420 (1983)]. The district courts have original jurisdiction under the federal question statute over cases "arising under the Constitution, laws, or treaties of the United...
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