City of Austin v. Abbott, 1:17-CV-806-RP

385 F.Supp.3d 537

CITY OF AUSTIN, Plaintiff,

v.Greg ABBOTT, Texas Governor in His Official Capacity; Ken Paxton, Texas Attorney General in His Official Capacity; New Cingular Wirless PCS, LLC; T-Mobile West LLC; Crown Castle NG Central LLC ; ExteNet Systems, Inc.; and Mobilitie LLC; Defendants.

1:17-CV-806-RP

United States District Court, W.D. Texas, Austin Division.

Signed March 25, 2019

Sameer Singh Birring, Michael John Weills Siegel, City of Austin Law Department, Austin, TX, for Plaintiff.

Adam N. Bitter, Benjamin L. Dower, Jeffrey E. Farrell, Office of the Attorney General, Drew L. Harris, Gavin R. Villareal, Thomas R. Phillips, Baker Botts L.L.P., Terry Lane Scarborough, Viola Blayre Pena, Hance Scarborough, LLP, Gary E. Zausmer, Katherine K. Mudge, Enoch Kever PLLC, Eric J.R. Nichols, Karson Karl Thompson, Butler Snow LLP, Austin, TX, Van H. Beckwith, Baker Botts LLP, Dallas, TX, Thomas Scott Thompson, Davis Wright Tremaine LLP, Joshua S. Turner, Pro Hac Vice, Sara Baxenberg, Pro Hac Vice, Wiley Rein LLP, Washington, DC, for Defendants.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Before the Court are several motions to dismiss filed by Defendant New Cingular Wireless ("New Cingular"), (Dkt. 35), Defendant ExteNet Systems, Inc. ("ExteNet"), (Dkt. 36), Defendants Greg Abbott (the "Governor") and Ken Paxton (the "attorney general"),¹ (Dkt. 37), Defendant Mobilitie LLC ("Mobilitie"), (Dkt. 38), Defendant T-Mobile West LLC ("T-Mobile"), (Dkt. 39), and Defendant Crown Castle NG Central LLC ("Crown Castle"), (Dkt. 42). Given the similarities between the motions and the arguments made by the Defendants, the Court will consider them and the arguments they raise collectively. Having considered the parties' briefs, the evidence, and the relevant law, the Court issues the following order.

I. BACKGROUND

In November 2017, the governor signed SB 1004.² SB 1004 imposes certain standards on the process for permitting telecommunications companies to install "small cell nodes" on utility poles, traffic lights, or street signals in the public right of way ("ROW"). See Tex. Loc. Gov't Code § 284.001(a)(1), (5), (8)–(10). These small cell nodes provide the capacity to reliably serve large crowds, and they will eventually serve as a foundation for developing a 5G network. Before SB 1004, the State did not limit the fees municipalities could charge for issuing permits to install and use small cell nodes in their ROW or the time within which a city must process permit applications. SB 1004 places two temporal restrictions on the permit application process: a prohibition of "moratoria"—a period during which a municipality will not issue permits—and a "shot clock"—a specified time period within which an application must be reviewed.

Plaintiff the City of Austin (the "City") sued the State of Texas and the governor seeking an injunction that would prevent the implementation of SB 1004. (See Compl., Dkt. 1). The City argued that SB 1004 is pre-empted by Sections 253(c) and 332(c)(7) of the Federal Telecommunications Act ("FTA"). (Compl., Dkt. 1, ¶¶ 35–38). The City moved for a preliminary injunction, which the Court denied because it concluded that the City was unlikely to succeed on its pre-emption claims.³ (Order, Dkt. 12). The City then amended its complaint to add parties as defendants, including several telecommunications companies and the attorney general, and abandon one of its claims. (Am. Compl., Dkt. 22). Each Defendant has moved to dismiss the City's complaint. (Dkts. 35, 36, 37, 38, 39, 42).

II. LEGAL STANDARD

A. Rule 12(b)(1)

Under Rule 12(b)(1), a court may dismiss a complaint for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). A case is properly dismissed for lack of subject matter jurisdiction when the court lacks "the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss. , 143 F.3d 1006, 1010 (5th Cir. 1998). There are three avenues for a movant to demonstrate a lack of jurisdiction: (1) on the face of the complaint alone; (2) the complaint supplemented by undisputed facts in the record; and (3) the complaint supplemented by undisputed facts and the court's resolution of disputed facts. Montez v. Dep't of Navy , 392 F.3d 147, 149 (5th Cir. 2004). The party invoking the court's jurisdiction bears the burden of demonstrating that jurisdiction exists. Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001).

Where a jurisdictional challenge is raised, the court is generally "free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case." Montez , 392 F.3d at 149. The court should grant a 12(b)(1) motion to dismiss only if it appears certain that the plaintiff cannot prove any set of facts that would entitle her to recovery. Morris v. Thompson , 852 F.3d 416, 419 (5th Cir. 2017). Where a state's sovereign immunity deprives the court of jurisdiction, the claims barred by sovereign immunity must be dismissed only under Rule 12(b)(1) and not with prejudice. Warnock v. Pecos County, Tex. , 88 F.3d 341, 343 (5th Cir. 1996). Dismissal under 12(b)(1) is not a determination on the merits and does not prevent a plaintiff from pursuing a claim in a court with proper jurisdiction. Ramming , 281 F.3d at 161.

B. Rule 12(b)(6)

Pursuant to Rule 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a 12(b)(6) motion, a "court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ " In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit , 369 F.3d 464, 467 (5th Cir. 2004) ). "To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the [plaintiffs'] grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ " Cuvillier v. Taylor , 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). That is, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).

A claim has facial plausibility "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Dorsey v. Portfolio Equities, Inc. , 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted). Because the court reviews only the well-pleaded facts in the complaint, it may not consider new factual allegations made outside the complaint. Id.

III. DISCUSSION

Defendants challenge this Court's jurisdiction and the City's standing to sue. The State Defendants also continue to argue, as they did at the preliminary injunction stage, that the State is not subject to suit under Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), because an appropriate State official has not been sued, as neither the governor nor the attorney general possess "the ability or the demonstrated willingness to enforce the challenged law." (State Defs.' Mot. Dismiss, Dkt. 37, at 2). Finally, each Defendant argues that the City fails to state a claim because the statutes identified by the City do not pre-empt SB 1004. The Court first addresses the jurisdictional arguments before deciding whether the City has stated a claim. See Ramming , 281 F.3d at 161.

A. 12(b)(1): Standing & Jurisdiction

1. Jurisdiction

ExteNet argues that the City does not have a private cause of action under the Supremacy Clause to assert a pre-emption claim against Defendants. (ExteNet Mot. Dismiss, Dkt. 36, at 3–4). It argues that, while "in certain situations parties are able to invoke the court's equity powers to enjoin unconstitutional actions by state officers," those circumstances are not present here, as the State has not threatened to take any action against the City. (Id. at 4). The Court disagrees.

The Supreme Court has noted that it often exercises jurisdiction over claims seeking to enjoin state laws that are pre-empted by federal statute. See Shaw v. Delta Airlines , 463 U.S. 85, 96 n.14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (noting that "[i]t is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights"). In Shaw v. Delta Airlines , the Court relied on its landmark holding in Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), to hold that a plaintiff seeking injunctive relief from a state regulation on the grounds that the regulation is pre-empted by federal statute presents a federal question which the federal courts have jurisdiction to resolve. 463 U.S. at 96 n.14, 103 S.Ct. 2890. Two years later, the Court further noted that "the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." Green v. Mansour , 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985). The Fifth Circuit has...