Cellco P'ship v. City of Valdosta

574 F.Supp.3d 1318

CELLCO PARTNERSHIP d/b/a Verizon Wireless, Plaintiff,

v.CITY OF VALDOSTA, GEORGIA, et al., Defendants.

CASE NO.: 7:20-CV-00050 (WLS)

United States District Court, M.D. Georgia, Valdosta Division.

Signed December 6, 2021

Vincent G. Nelan, W. Patton Hahn, Birmingham, AL, Ivy Neal Cadle, Atlanta, GA, for Plaintiff.

Emily E. Macheski-Preston, Atlanta, GA, Timothy M. Tanner, Kayla Barnes, Coleman Talley, LLP, Valdosta, GA, for Defendant City of Valdosta Georgia.

ORDER

W. LOUIS SANDS, SENIOR JUDGE

Before the Court are cross motions for summary judgment, filed on April 23, 2021 by Plaintiff Cellco Partnership d/b/a Verizon Wireless ("Plaintiff" or "Verizon") and Defendant City of Valdosta, Georgia ("Defendant" or the "City"). (Docs. 28 & 31.) Both motions for summary judgment are ripe for review. See M.D. Ga. L.R. 7.3.1(a).

I. PROCEDURAL HISTORY

Verizon filed this action on March 25, 2020 against the City of Valdosta, Georgia, the City Council for Valdosta, and Valdosta's City Council members for the denial of Plaintiff's "application to construct a wireless telecommunications facility on real property located in the City of Valdosta, Georgia." (Doc. 1 ¶ 1.) Plaintiff alleges that "[t]he City's denial of Verizon Wireless’ application violates the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7), (the "TCA"), and [that] Verizon Wireless is entitled to an order directing the City to grant Verizon Wireless’ application for the proposed facility." Id. ¶ 6. Plaintiff brought three counts: (1) Failure to Comply with the Supported by Substantial Evidence Requirement as required by 47 U.S.C. § 332(c)(7)(B)(iii) ; (2) Unreasonable Discrimination Among Providers of Functionally Equivalent Services; and (3) Unlawful Prohibition of the Provision of Personal Wireless Services. (Doc. 1.)

After the initial Scheduling and Discovery Order was entered (Doc. 13), this case was reassigned from Judge Leslie Abrams Gardner to the undersigned on August 10, 2020. (See docket.) Thereafter, this Court granted a joint motion to extend discovery and issued an order applying its usual discovery rules to this case. (Doc. 15.) After an additional extension of the discovery period, discovery finally closed on April 5, 2021, and dispositive motions were due on April 23, 2021. (Doc. 19.) The Court also granted Plaintiff's unopposed motion for a protective order (Doc. 22) and Plaintiff's unopposed motion to dismiss Count Two of its Complaint (Doc. 24). Thus, only Counts One and Three remain. Additionally, the Court granted an unopposed motion to dismiss the individual City Council members as Defendants. (Doc. 49.)

Plaintiff timely filed a motion for summary judgment, which has been fully briefed. (Docs. 28, 41, 42.) The City also timely filed a motion for summary judgment, which has been fully briefed. (Docs. 31, 43, 44, 47.)¹ Because the Parties had not clarified how the Court should resolve disputes of fact, the Court ordered that both Parties file a supplemental brief "explaining their position on whether the Court is proceeding essentially on administrative review and can resolve all disputes of fact in its order resolving the motions for summary judgment or whether, if a genuine issue of material fact exists, the Court should set a hearing, bench trial, or jury trial for the resolution of material factual disputes." (Doc. 50.) Both Parties timely responded and agree that as to Count One, the Court should resolve the dispositive motions based on the record as presented to the City Council and that no further facts or evidence should be provided. (Doc. 51 at 4; Doc. 52 at 2.) But as to Count Three, because evidence outside of the administrative record may be considered, the Parties assert that the Court can set an evidentiary hearing or bench trial to resolve factual disputes. (Doc. 51 at 5; Doc. 52 at 3.)

II. SUMMARY JUDGMENT STANDARD

A. Federal Rule of Civil Procedure 56

"Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

Chow v. Chak Yam Chau , 555 F. App'x 842, 846 (11th Cir. 2014) (citing Maddox v. Stephens , 727 F.3d 1109, 1118 (11th Cir. 2013) ). " ‘A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.’ " Grimes v. Miami Dade Cnty. , 552 F. App'x 902, 904 (11th Cir. 2014) (quoting Chapman v. AI Transp. , 229 F.3d 1012, 1023 (11th Cir. 2000) ). "An issue of fact is ‘material’ if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "It is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the non-moving party." Tipton v. Bergrohr GMBH-Siegen , 965 F.2d 994, 998 (11th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

The movant bears the initial burden of showing, by citing to the record, that there is no genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Barreto v. Davie Marketplace, LLC , 331 F. App'x 672, 673 (11th Cir. 2009). The movant can meet that burden by presenting evidence showing there is no dispute of material fact, or by demonstrating that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. See Celotex , 477 U.S. at 322-24, 106 S.Ct. 2548. Once the movant has met its burden, the nonmoving party is required "to go beyond the pleadings" and identify "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party must " ‘do more than simply show that there is some metaphysical doubt as to the material facts.’ " Matsushita , 475 U.S. at 586, 106 S.Ct. 1348 (citations omitted). Instead, the non-movant must point to record evidence that would be admissible at trial. See Jones v. UPS Ground Freight , 683 F.3d 1283, 1294 (11th Cir. 2012) (quoting Macuba v. Deboer , 193 F.3d 1316, 1322 (11th Cir. 1999) ) (noting that hearsay may be considered on a motion for summary judgment only if it "could be reduced to admissible evidence at trial or reduced to admissible form."). Such evidence may include affidavits or declarations that are based on personal knowledge of the affiant or declarant. See Fed. R. Civ. P. 56(c)(4).

On a motion for summary judgment, the Court must view all evidence and factual inferences drawn therefrom in the light most favorable to the nonmoving party and determine whether that evidence could reasonably sustain a jury verdict. See Matsushita , 475 U.S. at 587-88, 106 S.Ct. 1348 ; Allen , 121 F.3d at 646. However, the Court must grant summary judgment if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

B. Local Rule 56

Local Rule 56 requires the following:

The movant for summary judgment under Rule 56 of the Federal Rules of Civil Procedure shall attach to the motion a separate and concise statement of the material facts to which the movant contends there is no genuine dispute to be tried. Each material fact shall be numbered separately and shall be supported by specific citation to particular parts of materials in the record. Material facts not supported by specific citation to particular parts of materials in the record and statements in the form of issues or legal conclusions (rather than material facts) will not be considered by the court. Affidavits and the introductory portions of briefs do not constitute a statement of material facts.

The respondent to a motion for summary judgment shall attach to the response a separate and concise statement of material facts, numbered separately, to which the respondent contends there exists a genuine issue to be tried. Response shall be made to each of the movant's numbered material facts. All material facts contained in the moving party's statement which are not specifically controverted by the respondent in respondent's statement shall be deemed to have been admitted, unless otherwise inappropriate.

M.D. Ga. L.R. 56.

Here, Defendant properly filed a summary judgment motion with a Statement of Undisputed Material Facts, as required by the Local Rules of this Court. (See Docs. 31 & 31-2.) Plaintiff did not attach to its motion a statement of undisputed material facts, although such a section was included in its brief, but Plaintiff did file a statement of facts upon filing its response brief. (Doc. 40.) Additionally, Plaintiff filed a response to Defendant's statement of material facts (Doc. 38), and Defendant filed a response to Plaintiff's purported statement of facts as included in Plaintiff's brief and to Plaintiff's separate statement of facts. (Docs. 41-1 & 44.)

Thus, Defendant complied with the local rule's requirement on statements of fact. Furthermore, as Plaintiff cured its error in failing to initially file a separate and numbered statement of material facts by separately filing a numbered statement of material facts, the Court finds that Plaintiff has also complied with Local Rule 56.² Having established the applicable standards, the Court will proceed to the facts.

III. RELEVANT FACTUAL BACKGROUND

The following facts are derived from the Complaint (Doc. 1); Defendants’ Answer thereto (Doc. 5); Defendant's Statement of Undisputed Material Facts and Plaintiff's response thereto (Docs. 31-2 & 38); Plaintiff's Statement of...