Global Tower Assets, LLC v. Town of Rome

• Court: Superior Court of Maine
• Decided: September 21, 2015
• Docket: CUMbcd-ap-15-01
• Status: Unpublished

Opinion

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland DocketNo.: BCD-AP-15-01 /

) GLOBAL TOWER ASSETS, LLC and ) NORTHEAST WIRELESS NETWORKS, ) LLC, ) ) Plaintiffs, ) ) v. ) ) TOWN OF ROME, ) ) Defendant.

STAY ORDER

The Defendant Town of Rome (the "Town") has moved for summary judgment on the

claims of Plaintiffs Global Tower Assets, LLC and Northeast Wireless Networks, LLC, pursuant

to M.R. Civ. 56. The Plaintiffs oppose this motion on its merits and also seek the opportunity to

take additional discovery they claim is essential to enabling them to respond fully, see M.R. Civ.

P. 56(f). Oral argument was held September 4, 2015.

The Town's first argument in its motion for summary judgment asserts that the Court

should defer ruling on the pending motions in favor of awaiting resolution of a first-filed federal

action that is currently on appeal to the First Circuit, Global Tower Assets, LLC v. Town of

Rome, A;Jaine, U.S. Dist. Ct., D. Me., Docket No. 1: 14-cv-00085-GZS. The Plaintiffs respond

that this argument is misguided as the federal action is predicated on a different set of facts from

the present case. Specifically, Plaintiffs contend that unlike the basis for the federal proceeding,

the present proceeding stems from a decision of the Town's alleged Board of Appeals. Plaintiffs

also argue that the Court should not stay the present case because the United States District Court

1 for the District of Maine's order had no preclusive effect on their claims under the Federal

Telecommunications Act, 47 U.S.C. §§ 332 et seq., since they were dismissed without prejudice,

or their state law claims, since federal district court declined to exercise supplemental

jurisdiction without reaching the merits.

Generally, in cases of concurrent jurisdiction, the doctrine of comity advises that where

two competing courts address actions involving the same subject matter, parties and issues, "the

court given priority is what which first exercises jurisdiction." Jones v. York, 444 A.2d 382, 384

(Me. 1982) (citation omitted). This doctrine is "neither a matter of absolute obligation on the

one hand nor of mere courtesy and good will upon the other." Fitch v. Whaples, 220 A.2d 170,

173 (Me. 1966) (quotation omitted). Instead, the doctrine seeks to promote justice and equity.

See Jones v. York, 444 A.2d at 384. Accordingly, the decision whether to hold an action in

abeyance under the doctrine of comity rests within the discretion of the trial court. Fitch, 220

A.2d at 172 (quotation omitted).

Here, the Court finds that pursuant to the doctrine of judicial comity, a stay is warranted

in the present action until a final judgment is reached in the federal action. This is because there

are overlapping issues between the present case and the first-filed federal action that could result

in confusion and inconsistent rulings if both cases went forward at the same time. Specifically,

both actions address whether: 1) the written decision of the Town's Planning Board was

unreasonably delayed; 2) the Town's Board of Appeals had authority and jurisdiction to hear

Plaintiffs' appeal from the Planning Board's decision; 3) the Planning Board's decision was a

final municipal action on Plaintiffs' wireless application; and 4) the Plaintiffs' allegations of

procedural and substantive wrongdoings on the part of the Planning Board rise to the level of due

process violations.

2 While the court is sensitive to the Plaintiffs' desire to move forward with the present

action, the Plaintiffs have chosen to pursue claims involving the same subject matter-their

application to the Town for approval of a cell tower facility-in two forums, and thus have

created the risk of contrary or inconsistent outcomes that this stay seeks to avoid.

Accordingly, it is hereby ORDERED:

This action is hereby stayed until further order of court. The court defers ruling on all

pending motions until the stay is terminated. Counsel for the parties are requested to report on

the status of the appeal every 60 days, and to notify the court forthwith when the appeal is

resolved.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by

reference in the docket.

Dated: September 21, 2015 ! /JJ1ttiti£ 7

A.M. Horton Justice, Business & Consumer Court

Entered on th~ Docket: CJ 17/ "';}I..- Copies sent Via Mail_ Electronically~

3 Global Tower Assets, LLC and Northeast Wireless Networks, LLC v. Town of Rome, Maine

BCD-AP-15-01

Plaintiff

Global Tower Assets, LLC and Northeast Wireless Networks, LLC , Counsel: Neal Pratt, Esq. jonathan Pottle, Esq Erica M.]ohanson, Esq. 80 Exchange St Bangor, ME 04402

Defendant

Town of Rome, Maine, Counsel: Frank Underkuffler, Esq. 116 Main Street Farmington, ME 04938 and Theodore Small, Esq. PO Box 891 Lewiston, ME 04243