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UP State Tower Co., LLC v. Town of Kiantone

United States District Court, W.D. New York

March 13, 2017

UP STATE TOWER CO., LLC, Plaintiff,
v.
THE TOWN OF KIANTONE, NEW YORK; THE TOWN BOARD OF THE TOWN OF KIANTONE, NEW YORK; and THE BUILDING DEPARTMENT OF THE TOWN OF KIANTONE, NEW YORK, Defendants.

          DECISION and ORDER

          MICHAEL A. TELESCA United States District Judge

         INTRODUCTION

         This case arises under the Telecommunications Act of 1996 ("TCA"), 47 U.S.C. § 151 et seg. Presently before the Court is the motion for reconsideration filed by Up State Tower Co., LLC ("Plaintiff") seeking reconsideration of this Court's decision and order dated December 9, 2016, granting in part and denying in part the summary judgment motion filed by the Town of Kiantone ("the Town"), the Town Board of the Town of Kiantone ("the Town Board"), and the Building Department of the Town of Kiantone (collectively, "Defendants"); and granting in part and denying in part Plaintiff's cross-motion for summary judgment. In particular, the Court granted summary judgment in Plaintiff's favor on the first cause of action, to the extent that the Town was ordered to issue a decision within 20 days on Plaintiff's application for a cell tower permit. On December 19, 2016, the Town issued a Resolution Denying the Application of Up State Tower Co., LLC for Town Tower Permit, Area Variances and Site Plan Review (Dkt #19-2) .

         In the pending reconsideration motion, Plaintiff seeks a different equitable remedy on its first cause of action, namely, an injunction directing the Town to issue a resolution granting the cell tower application and any required variances. Plaintiff also renews its cross-motion for summary judgment on the second cause of action, alleging that the Town has effectively prohibited wireless services in violation of the TCA. Finally, Plaintiff requests permission to amend the complaint to add a fifth cause of action alleging that the Town's denial of its application was not based on substantial evidence in violation of the TCA.

         Defendants filed a memorandum of law in opposition (Dkt #20-3) to Plaintiff s motion for reconsideration and renewed motion for summary judgment on the second cause of action. Plaintiff filed a reply memorandum of law (Dkt #21) .

         For the reasons discussed below, Plaintiff s motion for reconsideration is denied; Plaintiff s renewed motion for summary judgment on the second cause of action is denied; and Plaintiffs motion to amend the complaint is granted.

         DISCUSSION

          I. The Motion for Reconsideration

         The standard for granting a motion for reconsideration under Federal Rule of Civil Procedure ("F.R.C.P.") 59(e) "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citing Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y. 1990) ("The only proper ground on which a party may move to reargue an unambiguous order is that the court overlooked 'matters or controlling decisions' which, had they been considered, might reasonably have altered the result reached by the court."); Adams v. United States, 686 F.Supp. 417, 418 (S.D.N.Y. 1988) (same)). "The provision for reargument is not designed to allow wasteful repetition of arguments already briefed, considered and decided[, ]" Schonberger, 742 F.Supp. at 109 (citations omitted)), and "a motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader, 70 F.3d at 257.

         Plaintiff takes issue with the Court's grant of 20 days for the Town to issue a decision on its application, rather than ordering the Town to grant the application outright. Plaintiff attempts to show that it has "new evidence" that warrants the grant of prospective, permanent injunctive relief-namely, the Town's December 19, 2016, denial of Plaintiff's application. According to Plaintiff, because the denial occurred after the challenged Decision and Order, is "new evidence that the [T]own's failure to act within the shot-clock period was not, in and of itself, ' [sic] but was part of a series of acts and steps taken by the Town to disregard its responsibility to decide the application within a reasonable time. ..." (Plaintiff's Reply at 3). Not only is this argument both grammatically and logically unclear, it is meritless. Plaintiff cites a case that the Court already considered in connection with its previous decision, Crown Castle NG East, Inc. v. Town of Greenburgh, No. 12-CV-6157 CS, 2013, and simply rehashes arguments it previously made and which the Court found unconvincing. Plaintiff also suggests that the Town's recent denial of the application renders the Court's choice of equitable relief (ordering the Town to issue a decision within a circumscribed period) manifestly unjust. Plaintiff's argument relies on "new evidence" that was not in existence at the time of the Court's decision since the Town had not yet ruled on the cell tower application. Thus, Plaintiff has not pointed to any "matters, " Schonberger v. Serchuk, 742 F.Supp. at 119, that were "overlooked, " id., by this Court, and "which, had they been considered, might reasonably have altered the result reached by the [C]ourt." Id. Nor has Up State "point[ed] to controlling decisions . that the court overlooked . . . that might reasonably be expected to alter the conclusion reached by the court." Shrader, 70 F.3d at 257. In short, Plaintiff has not come close to meeting the "strict" standard for granting reconsideration.

         II. The Motion to Amend the Complaint

         Plaintiff requests leave to amend the complaint to add a cause of action under 47 U.S.C. § 332(c) (7) (B) (iii) on the basis that the Town's December 19, 2016 resolution denying its application was not based on substantial evidence.

         F.R.C.P. 15(a)(2) provides that "[t]he court should freely give leave [to amend] when justice so requires, " and Rule 15(a) caselaw focuses heavily on the prejudice to the nonmoving party." In re Adelphia Commc'ns Corp., 452 B.R. 484, 486 (Bankr. S.D.N.Y. 2011) . "A Rule 15(a) motion should be denied only for reasons as undue delay, bad faith, futility of the amendment, and perhaps the most important, the resulting prejudice to the opposing party." Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-04 (2d Cir. 2005) (internal quotations and citation omitted).

         Since the proposed amended claim only arose on December 19, 2016, the Court finds that Plaintiff has not unduly delayed in moving to amend, or acted in bad faith. Nor can the Court say that the amendment would be futile. Defendants have not presented any argument at all in opposition to Plaintiff's request to amend. Given their silence, the Court presumes that Defendants will not suffer any appreciable prejudice if the amendment is permitted. The Court accordingly will exercise its discretion to grant Plaintiff s motion to amend the complaint. See Enzymotec Ltd. v. NBTY, Inc., 754 F.Supp.2d 527, 538 (E.D.N.Y. 2010) ("Amendments are generally ...


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