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BellSouth Telecommunications, LLC v. City of Daphne

United States District Court, S.D. Alabama, Southern Division

April 4, 2019

CITY OF DAPHNE, et al., Defendants.



         Pending before the Court is Plaintiffs' Emergency Motion and Memorandum of Law to Enforce Preliminary Injunction and for Award of Fees, Costs and Other Appropriate Relief (“motion to enforce preliminary injunction”). Doc. 43, filed March 15, 2019. Plaintiffs request the Court issue emergency relief to enforce the preliminary injunction[1] that was entered by the Court on September 18, 2018, in this matter, forestall the enactment of City of Daphne Ordinance 2019-08 (“Ordinance 2019-08”), award Plaintiffs their costs and fees that are associated with this motion, and award other further relief and sanctions that the Court deems appropriate against Defendants. Doc. 43, at 2.


         Plaintiffs 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.

         To 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 that make it easier to spot them 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.

         In March 2017, the City enacted Ordinance No. 2017-22, 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 twenty-four (24) inches for all construction projects that involve the installation of buried lines that extend 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 Ordinance No. 2017-22 and markers that were not in a City right-of-way, but 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.

         Plaintiffs filed on July 27, 2018, their Complaint for Emergency and Permanent Injunctive Relief, Declaratory Relief, and Monetary Damages in which Plaintiffs bring claims against Defendants for declaratory judgment, preliminary and permanent injunctive relief, unlawful taking under the federal and Alabama constitutions, denial of procedural due process under the federal and Alabama constitutions, violation of the Equal Protection Clause of the federal constitution, violation of the contract clauses of the federal and Alabama constitutions, trespass, and conversion. Doc. 1, ¶¶ 31-87. Plaintiff contemporaneously filed their Motion for a Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not be Entered (“motion for TRO”) in which they sought a temporary restraining order against Defendants to halt them from removing the markers and for Defendants to show cause why a preliminary injunction should not issue. Doc. 2, at 3. On July 30, 2018, the Court granted Plaintiff's motion for TRO and ordered:

Defendants, the City of Daphne, Alabama, Dane Haygood and Jeremy Sasser, and anyone acting on their behalf, shall (a) immediately cease all efforts to remove, modify or destroy any of Plaintiffs' buried utility warning markers, and (b) refrain from any conduct that interferes with, modifies, removes or destroys any of Plaintiffs' buried utility warning markers.

Doc. 8, at 6. Upon motion of the parties (Doc. 24), on September 8, 2018, the Court entered their Consent Order Entering Interim Injunctive Relief and Resetting Preliminary Injunction Hearing, which extended the TRO until a preliminary injunction hearing could be held and added additional language to the original TRO:

Additionally, Plaintiffs or Plaintiffs' contractors shall be permitted, immediately and without any requirement to obtain any permit or other permission from, or to make any payment to, Defendants or any of Defendants' agents, to replace Plaintiffs' buried utility warning markers that were removed during July 10-12, 2018 at a height not to exceed 24 inches in substantially the same location as the removed markers, provided that Plaintiffs or any of Plaintiffs' contractors, while performing the replacement work, will not cause any land disturbance other than that necessary for the replacement work.
Plaintiffs shall record the number of and general locations where any markers that were removed during July 10-12, 2018 are replaced, to a level of specificity consistent in substance with the following: “replaced [quantity] markers on the [cardinal direction] side of [street name] between [cross street 1] and [cross street 2], ” and shall provide such information to Defendants.

Doc. 25, at 2; see also Doc. 30.

         Before a preliminary injunction hearing could be held, the parties filed on September 18, 2018, their Joint Motion to Issue a Preliminary Injunction Based on the Temporary Restraining Order and Consent Orders (Doc. 32), which the Court granted, and the terms of the TRO were entered as a preliminary injunction (Doc. 33). On March 15, 2019, Plaintiffs' filed their instant motion to enforce preliminary injunction (Doc. 43), for which the Court issued a show cause order (Doc. 45) and Defendants filed their response (Doc. 46).

         ANALYSIS ...

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