Harbor Communications, LLC et al v. Southern Light, LLC et al
Filing
28
ORDER granting 10 Motion to Remand. This action is hereby REMANDED to the Circuit Court of Baldwin County, Alabama. Signed by Senior Judge Charles R. Butler, Jr on 2/2/2015. copies to parties. (sdb)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
HARBOR
COMMUNICATIONS,
LLC
BOIHEM
INVESTMENT
COMPANY,
LLC,
and
J
&
L,
LLC,
Plaintiffs,
v.
SOUTHERN
LIGHT,
LLC,
ANDREW
M.
NEWTON
and
EDWARD
W.
FORBESS,
Defendants,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL
ACTION
NO.
14-‐00403-‐CB-‐B
ORDER
This
matter
is
before
the
Court
on
Plaintiffs’
motion
to
remand
this
action
to
state
court.
After
due
consideration
of
the
motion
(Doc.
10),
Defendants
response
(Doc.
18)
and
Plaintiffs’
reply
(Doc.
19),
the
Court
finds
that
remand
is
required
because
removal
was
untimely.
Background
This
action
was
filed
in
the
Circuit
Court
of
Baldwin
County,
Alabama
on
March
29,
2013
by
Plaintiffs
Harbor
Communications,
LLC,
(Harbor),
Boihem
Investment
Company,
LLC
and
J
&
L,
LLC.
The
complaint
alleged
only
state
law
causes
of
action
against
Defendants
Southern
Light,
LLC,
Andrew
M.
Newton
and
Edward
W.
Forbess,
arising
from
the
alleged
unauthorized
conveyance
of
Harbor’s
facilities
and
equipment
to
Southern
Light.1
According
to
the
Complaint,
the
1
All
of
the
parties
are
Alabama
citizens.
ultimate
result
of
this
wrongful
conveyance
was
that
Southern
Light
charged
Harbor
approximately
$700,000
per
year
to
use
equipment
that
Harbor
rightfully
owned.
After
the
state
court
litigation
was
commenced,
Southern
light
began
refusing
to
allow
Harbor’s
new
customers
to
interconnect
to
Southern
Lights
fiber
optic
lines
and
facilities.
On
June
24,
2014,
Plaintiffs
filed
a
Motion
for
Temporary
Restraining
Order
(TRO)
and
Preliminary
Injunction
in
the
state
court
action
requesting
an
order
“prohibiting
Southern
Light
from
refusing
interconnection
requests
from
Harbor
and/or
allowing
Harbor
the
type
of
access
to
its
equipment
that
would
allow
Harbor
to
interconnect
through
an
alternate
network
service
provider.”
(Pls.’
Br.,
Ex
2,
Doc.
1-‐1,
p.
49.)
In
its
brief
in
support
of
the
motion,
Harbor
argued
that
it
met
the
requirements
for
obtaining
preliminary
injunctive
relief
under
state
law.
Among
those
requirements
was
the
proof
that
the
movant
“’has
at
least
a
reasonable
chance
of
success
on
the
ultimate
merits
of
his
case.’”
(Id.
Ex.
3
)(quoting
Holiday
Isle,
LLC
v.
Adkins,
12
So.
3d
1173,
1176
(Ala.
2008)).
Because
the
basis
of
Plaintiffs’
success-‐
on-‐the-‐merits
arguments
is
key
to
the
removal
issue,
it
is
quoted
verbatim:
First,
federal
statutes
and
their
supporting
regulations
clearly
demonstrate
that
Southern
Light
has
a
duty
to
interconnect
with
Harbor.
The
controlling
statutory
authority
is
the
Telecommunications
Act
of
1996.
The
Act
states
that
“Each
telecommunications
carrier
has
the
duty…to
interconnect
directly
or
indirectly
with
the
facilities
or
equipment
of
other
telecommunications
carriers.”
47
U.S.C.
§
251(a).
The
regulations
implementing
that
federal
statute
are
equally
clear
on
this
duty.
The
regulations
define
a
“Telecommunications
Carrier”
as
“any
provider
of
telecommunications
services.”
47
C.F.R.
§
515.
The
regulations
echo
the
statutory
text
by
stating,
“Each
telecommunications
carrier
has
the
duty…to
interconnect
directly
or
indirectly
with
the
facilities
and
equipment
of
other
telecommunications
carriers.”
Id.
at
§
51.100.
As
a
“Telecommunications
carrier,”
Southern
Light
has
an
unambiguous
2
duty
to
interconnect
with
Harbor,
just
as
AT&T
has
a
duty
to
interconnect
with
Harbor
and
Southern
Light.
Second,
Southern
Light
has
repudiated
its
agreement
with
Boihem
that
it
would
accept
new
orders
from
Harbor
in
exchange
for
its
infrastructure’s
presence
on
Boihem’s
tower
sites.
Third,
Southern
Light
has
taken
the
position
in
this
litigation
that
the
MSA
is
valid
and
enforceable.
Southern
Light
should
not
be
permitted
to
take
this
position,
yet
simultaneously
deny
Harbor
the
basic
service
connections
inherent
in
that
agreement.
Southern
Light
has
stated
that
it
will
not
connect
Harbor
“as
long
as
there’s
pending
litigation.”
Because
the
MSA
obligates
Southern
Light
to
interconnect
with
Harbor,
Southern
Light
will
carry
a
duty
of
interconnection
even
if
it
prevails
in
the
underlying
lawsuit
and
proves
that
the
MSA
is
valid
and
enforceable.
(Id.)
In
their
August
25,
2014
response
to
Plaintiffs’
motion,
Defendants
addressed
Plaintiffs’
first
success-‐on-‐the-‐merits
argument
under
the
heading
“Southern
Light
has
no
statutory
duty
to
provide
service
to
Harbor
[under
47
U.S.C.
§
251(a)].”
(Id.)
On
the
same
day,
Plaintiffs
filed
an
amended
motion
for
TRO
and
preliminary
injunction
“to
request
that
the
Court
award,
in
addition
to
all
other
relief
to
which
Plaintiff
is
entitled,
a
reasonable
attorney’s
fee
and
costs
of
litigation
pursuant
to
47
U.S.C.
§
207.”
(Id.
Ex.
4.)
A
hearing
was
held
on
August
26,
2014.
On
August
28,
2014,
Defendants
filed
a
“Motion
to
Dismiss
or
Strike
Plaintiffs’
Federal
Telecommunications
Act
Claim.”
(Doc.
1-‐5,
58.)
The
state
court
denied
that
motion
on
August
29,
2014.2
That
same
day,
Defendants
filed
a
Notice
of
Removal
in
this
Court.
Defendants
invoke
removal
jurisdiction
under
28
U.S.C
1441(a)
based
on
original
jurisdiction
under
28
U.S.C.
§
1331,
which
gives
federal
court
original
2
The
state
court
record
attached
to
the
Notice
of
Removal
does
not
contain
an
order
or
notice
of
ruling
on
the
motion
to
dismiss
or
strike.
However,
Defendants
state
in
their
Notice
of
Removal
that
the
motion
was
denied
on
August
29,
2014.
3
jurisdiction
over
civil
actions
arising
under
federal
laws.
The
federal
question
claim
or
claims
giving
rise
to
jurisdiction,
according
to
the
Notice
of
Removal,
are
found
in
the
Amended
Motion
for
TRO
wherein
“Harbor
is
pursuing
claims
under
the
Telecommunications
Act
of
1996,”
which
include
attorney’s
fees
and
costs
pursuant
to
47
U.S.C.
§
207
and
allegations
that
Southern
Light
violated
47
U.S.C.
§§
251,
201
and
202.”
(Doc.
1
¶
15.)
Legal
Analysis
The
question
before
the
Court
is
whether
the
notice
of
removal
was
timely.
The
procedure
for
removal
is
governed
by
28
U.S.C.
§
1446,
which
sets
a
30-‐day
removal
window.
If
the
case
was
not
initially
removable,
“a
notice
of
removal
may
be
filed
within
30
days
after
[the
defendant’s
receipt]
.
.
.
of
a
copy
of
an
amended
pleading,
motion
order,
or
other
paper
from
which
it
may
first
be
ascertained
that
the
case
is
one
which
is
or
has
become
removable.”
28
U.S.C.
§
1446(b)(3).
Because
removal
jurisdiction
raises
significant
federalism
concerns,
federal
courts
are
directed
to
construe
removal
statutes
strictly.
Univ.
of
S.
Alabama
v.
Am.
Tobacco
Co.,
168
F.3d
405,
411
(11th
Cir.
1999).
Though
not
jurisdictional,
the
30-‐day
removal
period
is
“a
strictly
applied
rule
of
procedure
that
may
not
be
extended
by
the
court.”
BBC
Apartments,
Ltd.
v.
Browning,
994
F.
Supp.
1440,
1442
(S.D.
Fla.
1997).
The
removing
party
has
the
burden
of
demonstrating
that
removal
was
proper.
Id.
“[F]ederal-‐question
jurisdiction
is
invoked
by
and
large
by
plaintiffs
pleading
a
cause
of
action
created
by
federal
law.”
Grable
&
Sons
Metal
Prods.,
Inc.
v.
Darue
Eng'g
&
Mfg.,
545
U.S.
308,
312
(2005).
Plaintiffs
argue
that
notice
of
the
Telecommunications
Act
claim
was
contained
in
the
original
Motion
for
4
TRO/Preliminary
Injunction
(“the
Motion”)
which
Defendants
received
more
than
30
days
prior
to
removal.
Defendants
counter
that
they
did
not
receive
notice
of
a
cause
of
action
made
under
the
Telecommunications
Act
until
Plaintiffs
filed
their
Amended
Motion
for
TRO/Preliminary
Injunction
(“the
Amended
Motion”)
adding
a
claim
for
attorney’s
fees
under
the
Act.
More
specifically,
Defendants
contend
the
Motion
did
not
assert
a
cause
of
action
at
all,
and,
if
it
did,
the
cause
of
action
was
actually
a
state
law
claim
for
preliminary
injunctive
relief.
These
arguments
twist
the
traditional
definition
of
a
motion
for
preliminary
injunction.
A
motion
for
preliminary
injunction
is
a
pleading
by
which
a
party
seeks
“an
extraordinary
and
drastic
remedy”
when
“drastic
relief
is
necessary
to
preserve
the
status
quo.”
All
Care
Nursing
Serv.,
Inc.
v.
Bethesda
Mem.
Hosp.,
Inc.,
887
F.2d
1536,
1537
(11th
Cir.
1989);
see
also
Spinks
v.
Automation
Personnel
Servs.,
Inc.,
49
So.3d
186
(Ala.
2010).
Whether
a
motion
for
preliminary
injunction
is
brought
in
state
or
federal
court,
relief
will
be
granted
only
if
the
movant
shows,
inter
alia,
a
substantial
likelihood
of
success
on
the
merits
of
his
underlying
claim.
Siegel
v.
LaPore,
234
F.3d
1163,
1176
(11th
Cir.
2000)
(per
curiam)
(en
banc);
Barber
v.
Cornerstone
Community
Outreach,
Inc.,
42
So.3d
65,
78
(11th
Cir.
2009).
“[A]ny
motion
or
suit
for
a
traditional
injunction
must
be
predicated
upon
a
cause
of
action.
.
.
.
regarding
which
a
plaintiff
must
show
a
likelihood
or
actuality
of
success
on
the
merits.”
Klay
v.
United
Healthgroup,
Inc.,
376
F.3d
1092,
1097
(11th
Cir.
2004).
5
Plaintiffs’
Motion
was
not
tied
to
any
cause
of
action
asserted
in
the
complaint,
but
that
does
not
mean
there
was
no
underlying
cause
of
action.3
The
Motion
cited
three
claims
that
allegedly
entitled
Plaintiffs
to
preliminary
injunctive
relief:
a
cause
of
action
arising
from
the
Telecommunications
Act
and
two
state-‐law
causes
of
action.4
Defendants,
however,
do
not
concede
that
Plaintiffs’
reliance
on
federal
law
as
a
basis
for
success
on
the
merits
is
the
same
as
alleging
a
cause
of
action
under
federal
law.
Instead,
they
point
out
that
“asserting
the
violation
of
a
federal
statute
in
connection
with
a
state
law
claim
is
not
the
same
thing
as
alleging
a
cause
of
action
created
by
federal
law.”
(Defs.’
Rsp.
8,
Doc.
18
(emphasis
omitted)).
Next,
they
argue
that
the
motion
for
preliminary
injunction
is,
itself,
the
state
law
cause
of
action
and
imply
that
the
alleged
Telecommunications
Act
violation
is
nothing
more
than
an
element
of
that
claim.
The
fallacy
in
this
argument
is
clear.
A
motion
for
preliminary
injunction
is
not
a
cause
of
action.
It
is
a
procedural
mechanism
by
which
a
party
may
obtain
relief.
In
the
Motion,
Plaintiffs
sought
a
preliminary
injunctive
relief
based
on
both
federal
and
state
law
causes
of
action.
Defendants
should
have
removed
this
action
within
thirty
days
after
receiving
notice
of
the
Motion.
3
It
would
certainly
have
simplified
matters
if
Plaintiffs
had
amended
their
complain
to
include
the
claims
asserted
in
the
Motion
for
TRO/Preliminary
Injunction.
Nevertheless,
the
Motion
was
sufficient
to
put
Defendants
on
notice
of
a
federal-‐law
cause
of
action.
Furthermore,
Defendants’
argument
is
undercut
by
the
fact
that
the
Notice
of
Removal
was
based
on
the
Amended
Motion
for
TRO
Preliminary
Injunction,
which
also
is
not
tied
to
any
claim
asserted
in
the
Complaint.
4
Defendants
argue
that
they
were
not
on
notice
of
a
federal
cause
of
action
until
Plaintiffs
amended
the
Motion
to
assert
a
claim
for
attorney’s
fees
under
the
Telecommunications
Act.
This
argument
undermines
Defendants’
argument
that
the
Motion
did
not
plead
a
cause
of
action.
6
Even
if
removal
was
untimely,
Defendants
alternatively
argue,
this
Court
should
ignore
the
30-‐day
removal
requirement
because
the
state
court
has
no
jurisdiction
over
the
federal
claim.
Defendants
point
out
that
only
federal
district
courts
and
the
Federal
Communications
Commission
have
jurisdiction
over
Telecommunications
Act
claims.
AT&T
Corp.
v.
Coeur
d’Alene
Tribe,
295
F.3d
899,
905
(9th
Cir.
2002).
Defendants
rely
on
three
cases
in
which
district
courts
have
used
exclusive
federal
jurisdiction
as
a
basis
for
ignoring
the
removal
statute’s
procedural
requirements.
In
Barefield
v.
State
Farm
&
Cas.
Co.,
296
F.Supp.2d
741
(S.D.
Tex.
2003),
the
court
concluded
that
timeliness
of
removal
was
irrelevant
because
federal
courts
had
original
exclusive
jurisdiction
over
the
plaintiff’s
claim
under
the
National
Flood
Insurance
Program.
Unfortunately,
Barefield
creates
an
exception
to
the
removal
statute
without
actually
addressing
the
statute
itself.
Section
1446(b)
makes
no
distinction
between
cases
involving
exclusive
jurisdiction
and
those
involving
concurrent
jurisdiction.
It
simply
and
clearly
requires
that
the
notice
of
removal
be
filed
within
30
days
after
receipt
of
the
complaint
or,
as
in
the
instant
case,
the
paper
from
which
the
basis
for
removal
can
be
ascertained.
See
28
U.S.C.
§
1446(b)(1)
and
(b)(3).
The
other
cases
cited
by
Defendant
are
similarly
flawed.
Morris
v.
Simsol
Ins.
Servs.,
2013
WL
6590584
(W.D.
La.
Dec.
16,
2013),
followed
Barefield
without
discussion.
In
Fitzgerald
v.
Bestway
Servs.,
Inc.
284
F.Supp.2d
1311
(N.D.
Ala.
2003),
the
court
actually
found
that
removal
was
timely
under
the
last-‐served
defendant
rule
but
stated
in
dicta
that
it
“would
be
required
to
exercise
jurisdiction
over
the
explicit
ERISA
claim
even
if
[
]removal
had
not
been
timely.”
Id.
at
1317.
Like
the
Barefield
decision,
Fitzgerald
does
not
discuss
the
7
removal
statute
or
provide
any
analysis
to
support
this
de
facto
exception
to
the
removal
statute.
The
cases
cited
above,
which
represent
the
minority
view,
run
contrary
to
the
longstanding
principle
that
“all
rules
governing
removal.
.
.
must
be
strictly
interpreted
and
enforced
because
of
the
significant
federalism
concerns
arising
in
the
context
of
federal
removal
jurisdiction.”
Russell
Corp
v.
American
Home
Assur.
Co.,
264
F.3d
1040,
1049
(11th
Cir.
2001).
Thus,
the
majority
of
courts
that
have
addressed
the
issue
have
concluded
that
“removal
is
permitted
only
if
the
statutory
requirements
have
been
satisfied
and
the
fact
that
the
Court
might
have
exclusive
jurisdiction
does
not
dispense
with
the
necessity
of
complying
with
the
statutory
requirements.”
Bradwell
v.
Silk
Greenhouse,
Inc.,
828
F.Supp.
940,
944
(M.D.
Fla.
1993);
accord
Pix
v.
Alper,
2014
WL
3927536
(W.D.
Wash.
Aug.
12,
2014)
(“courts
have
consistently
rejected
the
argument
that
a
removing
defendant
does
not
have
to
comply
with
the
rule
of
unanimity
simply
because
exclusive
federal
jurisdiction
exists”);
Nichols
v.
HealthSouth
Corp.,
2012
WL
3929797
(N.D.
Ala.
Sept.
10,
2012)
(recognizing
that
“a
claim
providing
for
exclusive
federal
jurisdiction
does
not
exempt
defendants”
from
removal
statute’s
procedural
requirements);
Harbour
Light
Towers
Assoc.
v.
Ameriflood,
LLC,
2011
WL
2517222
(M.D.
Fla.
June
23,
2011)
(granting
motion
to
remand
based
on
defect
in
removal
procedure
even
though
federal
court
had
exclusive
jurisdiction
based
on
National
Flood
Insurance
Act);
Malone
v.
Malone,
2007
WL
789449
(D.
Or.
Mar.
13,
2007)
(“the
court
would
add
this
case
to
the
apparent
majority”
requiring
remand
in
cases
of
defective
removal
even
if
exclusive
ERISA
jurisdiction
existed);
Viala
v.
Owens-‐Corning
Fibeglas
Corp.,
1994
8
WL
139287,
*2
n.
3
(N.D.
Cal.
Apr.
13,
1994)
(“nothing
in
the
language
of
sections
1441
or
1446
or
in
the
case
law
surrounding
these
sections
lends
credence”
to
defendant’s
claim
that
procedural
removal
requirement
need
not
be
met
if
the
federal
question
is
one
over
which
the
federal
court
has
exclusive
jurisdiction);
Samuel
v.
Langham,
780
F.Supp.
424,
427
(N.D.
Tex
1992)
(remanding
case
based
on
removal
defect
even
if
exclusive
ERISA
jurisdiction
applied);
McCain
v.
Cahoj,
794
F.Supp.
1061
(D.
Kan.
1992)
(assuming
existence
of
exclusive
federal
jurisdiction
over
federal
crop
insurance
claim
and
nevertheless
remanding
for
defect
in
removal
procedures).
While
it
may
seem
counterintuitive
to
remand
a
case
over
which
the
state
court
arguably
has
no
jurisdiction,
a
defendant
in
this
situation
“may
bring
whatever
motions
it
deems
appropriate
in
the
state
court
proceeding.”
Harbor
Light,
2011
WL
2517222
at
*6.
This
Court
has
been
informed
that
the
state
court
denied
Defendants’
motion
to
dismiss
the
Federal
Telecommunications
Act
claim.
Apparently,
only
after
that
order
was
entered
did
the
Defendants
remove
this
action.
However,
this
Court
is
not
a
state
appellate
court,
and
removal
is
not
the
appropriate
method
for
challenging
a
state
court’s
ruling.
Conclusion
For
the
reasons
set
forth
above,
the
motion
to
remand
is
GRANTED.
This
action
is
hereby
REMANDED
to
the
Circuit
Court
of
Baldwin
County,
Alabama.
DONE
and
ORDERED
this
the
2nd
day
of
February,
2015.
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
9
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