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Abington Township v. Crown Castle NG East LLC

United States District Court, E.D. Pennsylvania

January 4, 2017

ABINGTON TOWNSHIP
v.
CROWN CASTLE NG EAST LLC

          MEMORANDUM

          John R. Padova, J.

         Plaintiff Abington Township (the “Township”) commenced this action against Defendant Crown Castle NG East LLC in the Court of Common Pleas of Montgomery County, asking that Defendant be enjoined from installing telecommunications poles, antennas and/or cellular nodes in the Township without first complying with any and all applicable Township Codes, including the Township's Zoning and Telecommunications Codes. Defendant removed the action to this Court, asserting that we have both diversity jurisdiction and federal question jurisdiction over the matter. The Township has filed a Motion to Remand. For the following reasons, we grant the Motion and remand the case to the Court of Common Pleas of Montgomery County.

         I. BACKGROUND

         The Complaint in Equity alleges that, on July 22, 2016, Defendant sent a letter to the Township, expressing its desire “to ‘install, operate, and maintain fiber optic cable and associated equipment, including optical converters and antennas . . . on, over and under the public way in the Township in connection with the provision of telecommunications provided by [the Defendant] as a “carrier's carrier” for its wireless carrier customers.'” (Compl. ¶ 28 (second alteration in original) (quoting Compl. Ex. C at 1).) However, prior to constructing, installing, operating, maintaining and/or locating such equipment in the Township, Defendant must obtain applicable permits, file engineering details and maps, submit evidence of compliance with applicable engineering standards, and arrange for scheduled inspections of its activities in the Township. (Id. ¶ 41.) In addition, the Township's Zoning Code requires, inter alia, that Defendant demonstrate that any affected towers or antennas meet certain Township aesthetic, height and light requirements, as well as federal standards and the standards of the Township's Building Code. (Id. ¶ 42.) Pursuant to the Township's Telecommunications Code, Defendant must also obtain a license, register with the Township, pay registration fees, and demonstrate that the planned activity will not endanger the health, safety, and welfare of Township residents. (Id. ¶ 43.)

         On August 8, 2016, the Township advised Defendant that, prior to engaging in any work, it would need to enter into a lease agreement with the Township and that the lease must be considered and approved by the Township Board of Commissioners. (Id. ¶¶ 45-46; Compl. Ex. D at 1.) It further advised Defendant that it would need to either demonstrate that the installations complied with the Zoning Code or obtain variances from the applicable Code requirements. (Compl. ¶¶ 47-49; Compl. Ex. D. at 1.) The next day, a representative of the Township met with two representatives of Defendant and reiterated the prerequisites to Defendant commencing the requested work. (Compl. ¶ 50.) Instead of agreeing to those requirements, however, Defendant's representatives advised the Township that it would begin “constructing, installing, operating, maintaining and/or locating . . . cellular poles, antennas, and/or nodes in the Township” on August 12, 2016, without complying with the stated requirements. (Id. ¶ 51.) Thereafter, counsel for both parties engaged in discussions regarding the parties' impasse, and Defendant's counsel agreed to provide the Township with five days' notice before Defendant performed any of the requested activity. (Id. ¶¶ 53-54.) However, on October 4, 2016, Defendant's counsel advised the Township that it would not provide such notice after all. (Id. ¶ 55.) Furthermore, Defendant made clear that it would commence work in the Township at an unknown date and time. (Id. ¶ 57.) By proceeding in this fashion, Defendant has failed to comply with the Township Codes, which deprives the Township of the ability both to oversee Defendant's activity and to alert its residents of any work to be done. (Id. ¶¶ 58-60.)

         The Complaint alleges that Defendant's actions endanger the health, safety and welfare of Township residents because, inter alia, the Township has no way of knowing if Defendant's activities are being conducted in a safe manner; there is a risk that telecommunications poles, antennas or nodes will fall due to improper construction or installation; installed equipment could obstruct sight lines at intersections or vehicular thoroughfares; and any emergency caused by the installed equipment would require the involvement of Township law enforcement. (Id. ¶¶ 61-70.) Thus, to protect the health, safety and welfare of Township residents and to ensure compliance with its Codes, the Complaint requests equitable relief in the form of an order requiring Defendant to “cease and desist from installing cellular nodes on telephone poles or installing telephone poles for the purpose of installing . . . poles, antennas and/or nodes in the Township without first complying with any and all applicable Township code[s].” (Id. ¶ 76 and Wherefore Clause.)

         In conjunction with the Complaint, the Township also filed a Petition for a Preliminary Injunction, seeking the same injunctive relief it sought in the Complaint. On October 5, 2016, the Montgomery County Court of Common Pleas issued an ex parte temporary restraining order, prohibiting Defendant from installing cellular nodes on telephone poles or installing telephone poles for the purpose of installing antennas and/or nodes pending a final hearing. Eight days later, on October 13, 2016, Defendant removed the action to this Court.

         Defendant asserts that we have both diversity and federal question jurisdiction over this case. The Township argues in its Motion to Remand that we do not have subject matter jurisdiction because the amount in controversy does not exceed the $75, 000.00 jurisdictional threshold necessary for diversity jurisdiction and because there is no basis for federal question jurisdiction.

         II. LEGAL STANDARD

         Generally, a defendant may remove a civil action filed in state court so long as the federal court would have had original jurisdiction over the matter had it been filed in federal court. 28 U.S.C. § 1441(a). The defendant bears the burden of establishing removal jurisdiction. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990); see also Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007) (stating that the removing party “bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court” (citations omitted). Moreover, courts strictly construe the removal statutes and “‘all doubts should be resolved in favor of remand.'” Boyer, 913 F.2d at 111 (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)).

         III. DISCUSSION

         A. Diversity Jurisdiction

         Defendant contends that we have diversity jurisdiction over the case because the parties are diverse and the amount in controversy exceeds the $75, 000.00 jurisdictional threshold. See 28 U.S.C. § 1332(a). The Township does not dispute that it is diverse from Defendant because the Township is a citizen of Pennsylvania and Defendant is a citizen of Delaware and Texas. The Township contends, however, that the amount in controversy does not meet the $75, 000.00 threshold.

         In ascertaining the amount in controversy in a removal case, a court must first look to the complaint. Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 398 (3d Cir. 2004). When, however, the complaint does not demand a specific sum, a court may permit removal if it is established, by a preponderance of the evidence, that the amount in controversy exceeds $75, 000.00. 28 U.S.C. § 1446(c)(2)(B); see also Dart Cherokee Basin Operating Co. v. Owens, --U.S. --, 135 S.Ct. 547, 554-55 (2014). Because the burden of establishing jurisdiction always lies with the removing defendant, it is the defendant who ...


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