United States District Court, S.D. Alabama, Southern Division
BELLSOUTH TELECOMMUNICATIONS, LLC d/b/A AT&T ALABAMA; AT&T CORP., Plaintiffs,
CITY OF DAPHNE, a municipality under the State of Alabama; DANE HAYGOOD, Mayor of City of Daphne, in both his official and personal capacity; & JEREMY SASSER, Public Works Director of City of Daphne, in both his official and personal capacity, Defendants.
TEMPORARY RESTRAINING ORDER AND ORDER SETTING HEARING
ON PRELIMINARY INJUNCTION
V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' motion for
temporary restraining order (“TRO”) and
preliminary injunction (Doc. 2) and the Plaintiffs'
certification of notice efforts pursuant to Rule 65(b) (Doc.
7). For the reasons explained below, the Court finds that the
motion for TRO should be granted and that a hearing should be
scheduled on the motion for preliminary injunction.
have communication lines, fiber optic cables and related
facilities (“lines”) buried throughout the City
of Daphne (“the City”). (Doc. 2-2, p. 2 ¶
2). The lines are located within public rights-of-way and
private easements, and they provide communications pathways
for the public, private industry, and government agencies,
including the City's residents, emergency 911 services,
and military installations. Id. at ¶¶ 2-3.
The lines also carry traffic communications of other large
communications companies. Id.
prevent damage to the lines, Plaintiffs regularly and
routinely install utility warning markers
(“markers”) above the buried lines and cables.
Id. at ¶ 6. Markers are generally plastic tubes
of varying height so that they are easily spotted in tall
grass. Id. at ¶ 7. The markers provide notice
of the presence of the underground lines and remind
excavators and blasters to call 811 before beginning their
work. Id. at ¶ 6.
March of 2017, the City enacted Ordinance No. 2017-22
(“the Ordinance”), which requires an applicant
for a proposed right-of-way construction permit to submit
“Construction plans” to the city, under which the
utility markers left above ground must be limited to the
height of 24 inches for all construction projects involving
the installation of buried lines for 500 feet or more. (Doc.
2-2, p. 25 ¶ I(A)(1)(a)(1)(b)). On July 10, 2018 City
Code Enforcement Officers began removing Plaintiffs'
markers. (Doc. 2-2, ¶ 13). The officers reportedly
removed or destroyed at least 317 of Plaintiffs' markers,
including markers that were in place prior to the Ordinance
and markers that were not in a City right-of-way, but rather
on private property or state rights-of-way. (Doc. 2-2,
¶16, Doc. 2-1, ¶ 10). Plaintiffs and Defendants
communicated about the issues and at times Defendants agreed
to halt the removal or destruction of the markers, but
ultimately gave Plaintiffs until Friday July 27, 2018 to
submit a proposed compliance plan that would outline in
detail their plan to bring all of its markers into compliance
and have indicated they would resume removal of the markers.
(Doc. 2-4, pp. 8-9).
court previously noted the applicable standard for
preliminary injunctive relief in Hammock ex rel. Hammock
v. Keys et al., 93 F.Supp.2d 1222 (S.D. Ala. 2000):
A party seeking a preliminary injunction must establish the
following four factors: (1) a substantial likelihood of
success on the merits; (2) a threat of irreparable injury;
(3) that its own injury would outweigh the injury to the
nonmovant; and (4) that the injunction would not disserve the
public interest. Tefel v. Reno, 180 F.3d 1286, 1295
(11th Cir.1999); McDonald's Corp. v. Robertson,
147 F.3d 1301, 1306 (11th Cir.1998). The Court should be
mindful that a preliminary injunction is an extraordinary and
drastic remedy not to be granted unless the movant has
clearly satisfied the burden of persuasion as to the four
requisites. McDonald's, 147 F.3d at 1306;
Northeastern Fl. Chapter of the Ass'n of Gen.
Contractors of Am. v. City of Jacksonville, 896 F.2d
1283, 1285 (11th Cir.1990).
Id., at 1226-27. The same standard applies to a
request for a temporary restraining order as to a request for
a preliminary injunction. Morgan Stanley DW, Inc., v.
Frisby, 163 F.Supp.2d 1371, 1374 (N.D.Ga. 2001), citing
Ingram v. Ault, 50 F.3d 898, 900 (11th Cir.1995).
Upon consideration of the evidence presented, the court
concludes that plaintiff has not met this burden.
Substantial likelihood of success on the merits
Complaint, Plaintiffs allege the terms of the Ordinance does
not apply to warning markers installed on City rights-of-way
before the effective date of the Ordinance. (Doc. 1 ¶
33). Plaintiffs also claim that, to the extent the Ordinance
is interpreted or can be interpreted to apply to warning
markers installed before the effective date of the Ordinance,
it is unlawful and unenforceable because it constitutes
retroactive application of substantive law that impairs
Plaintiffs' rights. Id. Additionally, Plaintiff
contends under the terms of the Ordinance the remedy for any
violation does not include the city removing or destroying
Plaintiffs' markers, which would violate Ala. Code §
37-15-10(k) & (iv). After reviewing Plaintiffs'
complaint and the arguments contained in the brief in support
of their motion, the Court finds that Plaintiffs have
sufficiently supported a substantial likelihood of success on
Threat of ...