Signs for Jesus v. Pembroke

2016 DNH 126

• Court: District Court, D. New Hampshire
• Decided: August 1, 2016
• Docket: Case No. 15-cv-482-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Signs for Jesus, et al.

v. Civil No. 15-cv-482-PB Opinion No. 2016 DNH 126 Town of Pembroke, et al.

MEMORANDUM AND ORDER

In April 2015, Signs for Jesus and Hillside Baptist Church

applied for a permit to install an electronic sign on Pembroke

Street in Pembroke, New Hampshire. When their application was

denied, they filed this action against the Town of Pembroke,

Pembroke’s Zoning Board of Adjustment, and Pembroke’s Code

Enforcement Officer. Plaintiffs allege that Pembroke’s zoning

ordinance, and defendants’ actions, violate the United States

and New Hampshire constitutions, as well as federal and state

statutes.

Defendants have moved, pursuant to Federal Rule of Civil

Procedure 14(a)(1), for leave to file a third-party complaint

against the State of New Hampshire and School Administrative

Unit 53 (“SAU 53”), which operates Pembroke’s local public high

school. In the alternative, defendants would like to add the

State and SAU 53 as required parties under Federal Rule of Civil Procedure 19(a)(1). The plaintiffs oppose defendants’ motion.

I. BACKGROUND

Signs for Jesus and Hillside Baptist Church (collectively

“the Church”) want to install an electronic sign on Church-owned

land at 547 Pembroke Street, in Pembroke’s historic district.

The purpose of the proposed sign is to display Bible scripture.

Down the street from the Church, at 530 Pembroke Street, there

is a Mobil gas station, which has an electronic sign. See Doc.

No. 1 at 4. Also, for several months during the summer of 2015,

the New Hampshire Department of Transportation maintained an

electronic traffic sign on Pembroke Street, south of the Mobil

station. See id. Pembroke Academy, the town’s public high

school, has a permanent electronic sign at 276 Pembroke Street.

See id. at 5.

Sections 143-57 to 143-66 of the Pembroke Zoning Ordinance

set out the town’s sign regulations. Id.; see Doc. No. 1-5 (the

sign ordinance). The ordinance regulates the size, placement,

and application process for signs in Pembroke. See Doc. No. 1-

5. The ordinance creates several exemptions to the regulations,

however, including exemptions for signs “required by federal,

state or municipal laws,” signs advertising properties for sale

or rent, and “public service signs.” Doc. No. 1 at 5-6, 10.

2 Section 143-59 of the ordinance further provides that some, but

not all, speakers must obtain a permit from Pembroke’s Code

Enforcement Officer before erecting a sign. See Doc. No. 1-5 at

5-6. In addition, section 674:54 of the New Hampshire Revised

Statutes purportedly exempts “government use[s]” of state- or

town-owned land from local zoning ordinances.

In April 2015, the Church applied for a permit to install

its proposed sign. Pembroke’s Code Enforcement Officer denied

that application. See Doc. No. 1 at 7. The Church then

appealed the Officer’s decision to Pembroke’s Zoning Board of

Adjustment, and filed a separate variance request. Id. After a

public hearing, the Board denied the Church’s administrative

appeal and its request for a variance. Id. at 8. In August

2015, the Church requested a rehearing pursuant to N.H. Rev.

Stat. Ann. § 677:2, but the Board denied those requests. Id.

In November 2015, the Church filed its complaint here. The

Church alleges, among other things, that Pembroke’s sign

ordinance is facially unconstitutional in light of Reed v. Town

of Gilbert, 135 S. Ct. 2218 (2015), because, the Church argues,

the ordinance includes impermissible content-based speech

restrictions. Doc. No. 1 at 1-2. The Church further claims

that the ordinance is unconstitutional as applied, and violates

state and federal law. See id. at 12-14.

3 II. ANALYSIS

Defendants have requested leave, pursuant to Federal Rule

of Civil Procedure 14(a)(1), to file a third-party complaint

against the State and SAU 53, which operates Pembroke Academy.

See Doc. No. 26 at 1. In the alternative, defendants seek to

add the State and SAU 53 as required parties under Federal Rule

of Civil Procedure 19. Id. I address, and ultimately reject,

each argument in turn.

A. Third-Party Complaint

Pursuant to Federal Rule of Civil Procedure 14(a)(1), “[a]

defending party may, as third-party plaintiff, serve a summons

and complaint on a nonparty who is or may be liable to it for

all or part of the claim against it.” Where, as in this case,

defendants filed their motion more than fourteen days after

serving their original answer, leave of court is required. Fed.

R. Civ. P. 14(a)(1).

The decision whether to grant such leave “is left to the

informed discretion of the district court.” Lehman v.

Revolution Portfolio L.L.C., 166 F.3d 389, 393 (1st Cir. 1999).

Rule 14(a)(1) sets out a “liberal standard,” whereby courts

should “allow impleader on any colorable claim of derivative

liability that will not unduly delay or otherwise prejudice the

4 ongoing proceedings.” Id. Rule 14(a) does not, however, permit

a defendant to bring a third-party claim simply because “the

claim arises out of the same general set of facts as” the

original plaintiff’s claim. United States v. Olavarrieta, 812

F.2d 640, 643 (11th Cir. 1987); 6 Charles Alan Wright et al.,

Fed. Prac. & Proc. Civ. § 1446 (3d ed.) (“The mere fact that the

alleged third-party claim arises from the same transaction or

set of facts as the original claim is not enough.”). Courts may

deny a defendant’s request for leave “when bringing in a third

party will introduce unrelated issues and unduly complicate the

original suit,” or “if the [third party] claim is futile.” S.

Shore Hellenic Church, Inc. v. Artech Church Interiors, Inc.,

No. 12-11663-GAO, 2015 WL 846533, at *18 (D. Mass. Feb. 26,

2015). In sum, courts “must oversee third-party practice with

the core purpose of Rule 14(a) in mind: avoiding unnecessary

duplication and circuity of action.” Lehman, 166 F.3d at 394.

Here, defendants’ proposed third-party complaint includes

two counts. The first seeks: (1) a declaration that section

674:54 of the New Hampshire Revised Statutes, which purportedly

exempted the State and SAU 53 from Pembroke’s zoning ordinance,

is unconstitutional; (2) an injunction barring the State from

enforcing section 674:54; and (3) an injunction ordering SAU 53

to remove its electronic sign. See Doc. No. 26-1 at 5-6. The

5 second claim seeks indemnity and contribution for any damages

and attorneys’ fees awarded to the Church. See id. at 6.

Defendants describe their claims only in vague terms. It

appears, however, that both counts rest on the same legal theory

-- that “the Town has no control over the allowance of . . .

signs for governmental actors [like the SAU 53 and the New

Hampshire Department of Transportation], but is instead required

to allow them by RSA 674:54.” Doc. No. 30 at 3. Therefore,

according to defendants, “the State and SAU 53 are responsible

for any discrimination among speakers, not the Town.” Id.

The Church challenges defendants’ proposed complaint on

various grounds. It contends that defendants’ claims are

futile, as defendants have not adequately alleged that section

674:54 is unconstitutional, or explained how the State or SAU 53

are liable for defendants’ purported discrimination. See Doc.

No. 27 at 2-4. The Church further argues that defendants’

complaint is untimely, raises issues that are unrelated to the

Church’s original complaint, will unduly delay the proceedings,

and will cause unnecessary litigation expense to the Church.

Neither claim in defendants’ proposed complaint provides a

viable claim for relief. As I understand their argument,

defendants agree that section 674:54 exempts “government use[s]”

6 of state- or town-owned land from local zoning ordinances. See

N.H. Rev. Stat. Ann. § 674:54; see also City of Portsmouth v.

John T. Clark & Son of N.H., Inc., 117 N.H. 797, 798 (1977)

(explaining, in an opinion predating section 674:54’s enactment,

that towns have “no power to subject the state to its zoning

ordinance requirements”). Therefore, as defendants concede, New

Hampshire law may allow entities, like the State and SAU 53, to

install signs that would otherwise violate local zoning

regulations. See N.H. Rev. Stat. Ann. § 674:54; Doc. No. 30 at

3 (defendants asserting that “the Town has no control over the

allowance of such signs for governmental actors, but is instead

required to allow them by RSA 674:54”). Defendants nonetheless

claim that, where a government entity exercises that authority

to install a sign, and the town later enforces its zoning

ordinance in a discriminatory manner by denying another

speaker’s sign application, the government entity becomes liable

for the town’s discrimination. See Doc. No. 30 at 3 (“The

Town's claim is a simple one: if the Court finds that the

disparate treatment of government speech and Plaintiff’s speech

is illegal, liability should be borne by the entities that

required the disparate treatment.”).

Defendants offer very little to support this unusual

theory. See id. at 2-3. For instance, although defendants

7 suggest that section 674:54 is “unconstitutional,” they decline

to identify the constitutional provision that the statute

allegedly violates. Nor do they cite any authority, or

otherwise provide a persuasive argument, to explain why the

State or SAU 53 should be held liable here.

To the extent that defendants are claiming that the State

and SAU 53 are liable for the defendants’ actions, their claim

cannot succeed. Defendants do not allege any facts to show that

the State and SAU 53 somehow compelled defendants’ conduct.

Instead, as the complaint makes clear, the defendants

independently chose to deny the Church’s application. If it

turns out that defendants’ decision was unlawful, the

responsibility lies exclusively with them. Given that I can

discern no other basis for defendants’ third-party claims, I

agree with the Church that defendants’ claims are futile, and

that their motion for leave to file a third-party complaint must

be denied.

B. Joinder Under Rule 19

In the alternative, defendants seek to add the State and

SAU 53 as required parties under Federal Rule of Civil Procedure

19(a)(1)(B)(i). See Doc. No. 26 at 2-3. Pursuant to that Rule,

a person is a required party if “that person claims an interest

relating to the subject of the action and is so situated that

8 disposing of the action in the person's absence may . . . as a

practical matter impair or impede the person's ability to

protect the interest . . . .”

Defendants here argue that litigating the Church’s claims

without including the State as a party would “impair or impede”

the State’s interests “in defending the constitutionality and

enforceability of” section 674:54. See Doc. No. 26 at 2-3.

Defendants further contend that, “if [section 674:54 is deemed

unconstitutional] both the State and SAU 53 will be prohibited

from displaying their electronic signs, again impairing or

impeding their interests . . . .” Id. at 3.

This argument is also unpersuasive. First, neither the

Church’s complaint nor defendants’ answer, Doc. Nos. 1, 12,

expressly questions section 674:54’s constitutionality. See

Doc. No. 27 at 2 (the Church noting that “[t]he Plaintiffs are

not harmed by RSA 674:54, are not challenging the

constitutionality of RSA 674:54 and the Plaintiffs do not allege

any harm was caused [by] actions of the State or the School”).

Thus, there is no reason to fear that resolving the Church’s

pending claims will “impair or impede” the State or SAU 53’s

interests. Cf. In re Pontes, 280 B.R. 20, 29 (Bankr. D.R.I.

2002) (citing Venuti v. Riordan, 702 F.2d 6, 8-9 (1st Cir.

1983)) (rejecting argument that a state is a necessary party

9 merely “because the constitutionality of one of its statutes is

being challenged”).

Second, and more fundamentally, even assuming that the

Church or defendants will question section 674:54’s

constitutionality later in this suit, other mechanisms will

adequately protect the State and SAU 53. In particular, if any

“pleading, written motion, or other paper” draws into question

the statute’s constitutionality, then Federal Rule of Civil

Procedure 5.1 requires notice to the New Hampshire attorney

general, while 28 U.S.C. § 2403 provides an opportunity for the

attorney general to intervene. Accordingly, if necessary, the

State will have its chance to defend section 674:54.

IV. CONCLUSION

For the reasons set forth above, defendants’ motion for

leave to file a third-party complaint (Doc. No. 26) is denied.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge August 1, 2016

cc: Pierre A. Chabot, Esq. Michael J. Tierney, Esq. Christopher Cole, Esq. Garry R. Lane, Esq. Megan C. Carrier, Esq.