New Cingular Wireless PCS, LLC v. City of Los Altos
Filing
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ORDER DENYING 85 PLAINTIFF'S MOTION TO VACATE 76 ORDER DISMISSING ACTION AS MOOT. Signed by Judge Edward J. Davila on 6/6/2024.(ejdlc2, COURT STAFF) (Filed on 6/6/2024)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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NEW CINGULAR WIRELESS PCS, LLC,
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Plaintiff,
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v.
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ORDER DENYING PLAINTIFF’S
MOTION TO VACATE ORDER
DISMISSING ACTION AS MOOT
CITY OF LOS ALTOS,
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United States District Court
Northern District of California
Case No. 20-cv-00294-EJD
Defendant.
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Re: ECF No. 85
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This Federal Communications Act of 1934 (“FCA”) suit and a related case were dismissed
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as moot on August 22, 2022. See Order Dismissing Action as Moot (“Mootness Order”), ECF No.
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76. Now pending before the Court is Plaintiff New Cingular Wireless PCS, LLC d/b/a AT&T
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Mobility’s (“AT&T”) Motion to Vacate August 22, 2022 Order (the “Motion”) pursuant to
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Federal Rule of Civil Procedure 60. See Mot., ECF No. 85. The Court finds AT&T’s Motion
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suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b) and DENIES the
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Motion for the reasons below.
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I.
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BACKGROUND
AT&T is a wireless telecommunications carrier that provides personal wireless services to
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customers. See Compl. ¶ 9, ECF No. 1. In March 2019, AT&T submitted 12 applications to
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Defendant City of Los Altos (the “City”) for permits to install “small cell” wireless facilities,
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which are small antennas and related equipment installed on existing or replacement utility poles.
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See Mootness Order 3; Compl. ¶ 1. Residents of the City opposed AT&T’s proposed sites, and
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the City Council subsequently conducted several public hearings and adopted an ordinance (the
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Case No.: 20-cv-00294-EJD
ORDER DENYING PLTF.’S MOT. VACATE ORDER DISMISSING ACTION AS MOOT
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“2019 Ordinance”) which applied retroactively to all pending applications and under which the
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City denied AT&T’s applications and appeals. See Mootness Order 3.
On January 13, 2020, AT&T sued the City on the ground that the City’s denials of its
United States District Court
Northern District of California
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applications violated the FCA, as amended by the Telecommunications Act of 1996. See Compl.
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On June 30, 2022, the City repealed the 2019 Ordinance and adopted a new, comprehensive
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ordinance (the “2022 Ordinance”) governing the placement of all wireless facilities in the City.
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See Mootness Order 4. On July 5, 2022, the City submitted a motion for administrative relief to
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file briefing on the issue of whether its adoption of the 2022 Ordinance mooted AT&T’s claim.
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See Admin. Mot., ECF No. 67. The Court permitted such briefing, and, on August 22, 2022,
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issued the Mootness Order, which dismissed AT&T’s action as moot and terminated its then-
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pending motion for summary judgment.1 See Mootness Order. AT&T appealed the Mootness
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Order on September 16, 2022. See Not. Appeal, ECF No. 78.
In May 2023, AT&T submitted new application for permits, in accordance with the City’s
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2022 regulations, for 11 of the locations for which it had been denied permits under the 2019
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Ordinance. See Decl. of Marc Grabisch in Supp. of Mot. Vacate (“Grabisch Decl.”) ¶ 7, ECF No.
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85-1. AT&T “decided not to file a new application for the twelfth location that was at issue” in
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this action, and “does not plan to file an application for this location at this time.” Id. ¶ 9. AT&T
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states that should it seek to install a facility at this location in the future, it will not seek to do so
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based on the assertion that either the City’s 2019 denials or the 2019 Ordinance was improper.
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See Mot. 3 n.1. The City granted the 11 new applications in December 2023. See id. ¶ 10.
On February 5, 2024, AT&T voluntarily dismissed its appeal of the Mootness Order. See
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Order Dismissing Appeal, ECF No. 84. AT&T then filed the instant Motion on February 16,
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2024. The City filed an opposition, and AT&T filed a reply. See Opp’n, ECF No. 86; Reply, ECF
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No. 87. The Court took the Motion under submission on April 9, 2024. See ECF No. 88.
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This action was related to a similar suit brought against the City by GTE Mobilnet of California
Limited Partnership d/b/a Verizon Wireless (“Verizon”), and the Mootness Order also dismissed
Verizon’s suit as moot and terminated Verizon’s pending summary judgment motion. See
generally Mootness Order.
Case No.: 20-cv-00294-EJD
ORDER DENYING PLTF.’S MOT. VACATE ORDER DISMISSING ACTION AS MOOT
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LEGAL STANDARD
A district court may consider a request for vacatur of a final judgment or order pursuant to
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Federal Rule of Civil Procedure 60(b). See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship
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(“Bonner Mall”), 513 U.S. 18, 29 (1994). Federal Rule of Civil Procedure 60(b) provides that a
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party may move a court to relieve it from a final judgment, order, or proceeding under six
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circumstances:
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(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
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Fed. R. Civ. P. 60(b). The “catchall” circumstance of Rule 60(b)(6) “is available only when Rules
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60(b)(1) through (b)(5) are inapplicable.” Kemp v. United States, 596 U.S. 528, 533 (2022) (citing
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Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n.11 (1988)).
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United States District Court
Northern District of California
II.
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The Ninth Circuit has noted that “Rule 60 provides the basis for a district courts’ vacation
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of judgments when the equities so demand, but it does not establish what substantive standards
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should be employed.” Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1168 (9th Cir.
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1998). Vacatur should be granted when an action becomes moot due to either happenstance—i.e.,
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“circumstances unattributable to any of the parties”—or the “unilateral action” of the prevailing
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party. Davis, Cowell & Bowe, LLP v. Soc. Sec. Admin., 281 F. Supp. 2d 1154, 1155 (N.D. Cal.
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2003) (citing Bonner Mall, 513 U.S. at 23). When mootness results from settlement, however,
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district courts may review vacatur requests under Rule 60(b)(5)–(6) using a balancing-of-the-
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equities standard, while appellate courts must generally, though not always, find “exceptional
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circumstances” before vacating a judgment under review. See Am. Games, 142 F.3d at 1167–68;
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see also, e.g., Ayotte v. Am. Econ. Ins. Co., 578 F. App’x 657, 658 (9th Cir. 2014) (“[T]he Bonner
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Mall rule requiring ‘exceptional circumstances’ for vacatur applies only to appellate courts . . .
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Case No.: 20-cv-00294-EJD
ORDER DENYING PLTF.’S MOT. VACATE ORDER DISMISSING ACTION AS MOOT
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[and thus] Bonner Mall did not overrule this court’s ‘established procedure’ of remanding a
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vacatur request so that the district court can apply an ‘equitable balancing test.’”) (quoting Am.
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Games, 142 F.3d at 1168). That is, “district courts enjoy ‘greater equitable discretion when
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reviewing [their] own judgments than do appellate courts operating at a distance.’” Cisco Sys.,
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Inc. v. Capella Photonics, Inc., No. 20-cv-01858, 2021 WL 3373292, at *1 (N.D. Cal. Aug. 3,
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2021) (quoting Am. Games, 142 F.3d at 1169–70). “The burden rests with the party seeking relief
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to demonstrate equitable entitlement to vacatur.” Toutov v. Curative Labs Inc., No. 20-cv-11284,
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2024 WL 1351391, at *2 (C.D. Cal. Mar. 28, 2024) (citing Bonner Mall, 513 U.S. at 27).
The equitable balancing test requires district courts to consider factors “includ[ing], but . . .
United States District Court
Northern District of California
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not limited to ‘the consequences and attendant hardships of dismissal or refusal to dismiss,’ the
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‘competing values of finality of judgment and right to relitigation of unreviewed disputes,’ the
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‘motives of the party whose voluntary action mooted the case,’ and the public policy against
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allowing a losing party to ‘buy an eraser for the public record.’” Ayotte, 578 F. App’x at 658–59
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(quoting Am. Games, 142 F.3d at 1168, 1170). In considering the motives of the party whose
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voluntary action mooted the case, “the equitable principles weighing in favor of vacatur in these
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situations cut [against vacatur] where the appellant by his own act prevents appellate review of the
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adverse judgment.” Dilley v. Gunn, 64 F.3d 1365, 1370 (9th Cir. 1995). Nonetheless, “if the
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district court determines that the appellant did not intend to avoid appellate review and to have the
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district court's order vacated, that factor may weigh equitably in favor of vacating the order.” Am.
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Games, 142 F.3d at 1168 (quoting Dilley, 64 F.3d at 1372 n.6).
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III.
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DISCUSSION
AT&T argues that the Court should vacate the Mootness Order based on a balancing of the
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equities. See Mot. 3–7. The City argues that the “exceptional circumstances” standard applies,
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and that AT&T does not meet the requirements for vacatur under either standard. See Opp’n 5–9.
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As described above, see supra, at Part II, the “exceptional circumstances” standard applies to
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appellate courts, while district courts use the equitable balancing test in evaluating motions to
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vacate under Rule 60(b)(5) or (b)(6)—regardless of whether the request for vacatur appears by
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Case No.: 20-cv-00294-EJD
ORDER DENYING PLTF.’S MOT. VACATE ORDER DISMISSING ACTION AS MOOT
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United States District Court
Northern District of California
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motion from a party or remand from an appellate court. See, e.g., Dali Wireless, Inc. v. Corning
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Optical Commc’ns LLC, No. 20-cv-06469, 2023 WL 2560100, at *1 (N.D. Cal. Feb. 6, 2023)
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(applying balancing test to unopposed motion for vacatur under Rule 60(b)(6) where parties
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settled action while appeal was pending); Toutov, 2024 WL 1351391, at *1–2 (applying balancing
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test to motion to vacate jury verdict following parties’ settlement); BrightEdge Techs., Inc. v.
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Searchmetrics, GmbH, 14-cv-01009, 2019 WL 1369915, at *2 (N.D. Cal. Mar. 26, 2019)
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(reviewing both exceptional circumstances and equitable considerations following remand from
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appellate court). Accordingly, the Court will apply the equitable balancing test in evaluating
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AT&T’s Motion.
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A.
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AT&T argues that the Mootness Order, if “allowed to stand with full persuasive force . . .
Consequences and Attendant Hardships
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could have significant ramifications for AT&T and other wireless service providers who require
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permits to construct their wireless networks” because other municipalities may “evade prompt
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judicial review of their own improper permit denials by issuing new ordinances to moot otherwise
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legitimate judicial claims.” Mot. 4. AT&T further argues that vacatur “would not impose
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hardship on the City” because the City, unlike AT&T, is not confronting further similar litigation.
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See id. The City counters that AT&T’s argument is “unsupported and speculative,” and that the
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Mootness Order “was based on a straightforward application of well-established Ninth Circuit law
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calling for the dismissal of moot claims.” Opp’n 8
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At the outset, the Court notes that “[j]udicial precedents . . . are not merely the property of
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private litigants and should stand unless a court concludes that the public interest would be served
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by a vacatur.” Bonner Mall, 513 U.S. at 26 (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v.
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U.S. Philips Corp., 510 U.S. 27, 40 (1993) (Stevens, J., dissenting)). The Court accordingly does
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not weigh AT&T’s purported hardships against those of the City, but rather against the convention
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of the American legal system that an appeal is the ordinary process to challenge or erase a
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potentially unfavorable decision. See Bonner Mall, 513 U.S. at 25 (“Where mootness results from
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settlement, . . . the losing party has voluntarily forfeited his legal remedy by the ordinary processes
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Case No.: 20-cv-00294-EJD
ORDER DENYING PLTF.’S MOT. VACATE ORDER DISMISSING ACTION AS MOOT
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United States District Court
Northern District of California
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of appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur.”).
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Turning to AT&T’s substantive arguments, the Court finds that AT&T has not sufficiently
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shown an attendant hardship as a consequence of the Mootness Order. AT&T suggests in essence
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that the Mootness Order might incentivize municipalities to delay issuance of permits by first
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improperly denying permits and then issuing new ordinances that moot any resulting suits. The
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Court agrees with the City that this suggestion is too speculative; further, it contravenes the
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presumption that governments act in good faith when they voluntarily cease challenged conduct.
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See Mootness Order 5 (citing Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th
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Cir. 2010)). Lastly, to the extent that AT&T is concerned about the effect of an order it believes
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was wrongly decided under the applicable law, the Court “has full confidence that future courts
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can review the disputed order and consider its . . . effect in light of” the relevant authority.
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BrightEdge Techs., 2019 WL 1369915, at *2.
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The Court thus finds that AT&T has not shown this factor to weigh in favor of vacatur.
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B.
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AT&T argues that the finality of judgment factor weighs “heavily in favor of vacatur”
Finality of Judgment and Right to Relitigate Unreviewed Disputes
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because (1) vacatur of the Mootness Order would not disturb the finality of the City’s grant of the
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11 permits for which AT&T applied under the 2022 Ordinance; (2) it would be appropriate for
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AT&T to relitigate the unreviewed mootness issues in the Mootness Order; and (3) refusal to
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vacate the Mootness Order may result in litigants “unfairly us[ing] it to argue in favor of dismissal
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of other litigation, in which courts will be asked to consider the specific facts of other subject
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regulations.” Mot. 5–6. The City counters that AT&T’s concern about future misuse of the
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Mootness Order “is both misplaced, in light of the abundance of Ninth Circuit authority
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supporting it, as well as an improper attempt to relitigate the merits of the underlying ruling.”
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Opp’n 9. The City also argues that AT&T’s request for vacatur is not justified because it
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“voluntarily decided to pursue approval of its wireless applications rather than to prosecute its
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appeal.” Id. at 7. AT&T responds by arguing that it faced a choice between “fulfill[ing] its
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business mission or continu[ing] to challenge what it viewed as an unfortunate ruling,” and that
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Case No.: 20-cv-00294-EJD
ORDER DENYING PLTF.’S MOT. VACATE ORDER DISMISSING ACTION AS MOOT
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the “ministerial act of dismissing an appeal after the requested relief had been obtained is hardly
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the kind of ‘voluntary’ action that should transform the equities of this case.” Reply 5.
United States District Court
Northern District of California
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Here, AT&T has conceded that it does not seek to relitigate the dispute underlying this
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case, i.e., the permit denials under the 2019 Ordinance. See Mot. 3; Grabisch Decl. ¶ 9. Further,
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the dispute remained unreviewed due to AT&T’s own decision to voluntarily dismiss its appeal of
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the Mootness Order due to a strategic business decision. Under these circumstances, the Court is
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not persuaded that this factor weighs in favor of vacatur.
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C.
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AT&T argues that its voluntary dismissal of its appeal was not a ploy to avoid appellate
Motives of the Parties
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review, and in fact “brings with it the unwelcome effect of hampering it from challenging a
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precedent with a substantial negative impact on its business.” Mot. 6. The City argues that the
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voluntary dismissal “alone requires denial” of the Motion. Opp’n 7 (citations omitted).
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The Court does not make a finding that AT&T engaged in gamesmanship by dismissing its
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appeal and seeking to vacate the Mootness Order 11 days later. Likewise, as discussed in the
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Mootness Order, the Court presumes that the City acted in good faith in promulgating the 2022
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Ordinance and subsequently requesting that the Court dismiss AT&T’s suit as moot. However,
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the unavoidable fact is that AT&T “by [its] own act prevent[ed] appellate review of the adverse
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judgment.” Dilley, 64 F.3d at 1370. The Court thus finds this factor to at best neutral for AT&T.
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D.
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AT&T argues that vacatur would be consistent with public policy because it incentivizes
Public Policy
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parties to reach out-of-court resolutions, which conserve judicial and party resources. See Mot. 6–
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7. AT&T additionally notes that the resolution here—the grant of the 11 permits—will “facilitate
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improved wireless services in Los Altos, including in-building service coverage for people who
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rely on cellular service for both routine and emergency calls.” Id. at 7 (citing Grabisch Decl. ¶¶
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11–17). The City argues that the Court should “consider the ‘public policy against allowing a
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losing party to . . . erase[] the public record.’” Opp’n 7 (quoting Am. Games, 142 F.3d at 1170).
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In considering the settlement incentives of vacatur, the Court is persuaded by the reasoning
Case No.: 20-cv-00294-EJD
ORDER DENYING PLTF.’S MOT. VACATE ORDER DISMISSING ACTION AS MOOT
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United States District Court
Northern District of California
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of other courts that vacatur of potentially unfavorable decisions may in fact have the effect of
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delaying settlement negotiations. That is, if a party believes that it could receive an unfavorable
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decision and then settle and have the decision vacated, there is less incentive to settle early, before
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the expenditure of significant party and court resources. See, e.g., Gardner v. CafePress Inc., No.
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13-cv-1108, 2015 WL 13427727, at *3 (S.D. Cal. Jan. 9, 2015) (“As an institutional litigant likely
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facing future copyright cases, settlement-contingent vacatur would eliminate CafePress’s incentive
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to settle early and avoid potentially unfavorable orders.”) (citations omitted); Visto Corp. v.
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Sproqit Techs., Inc., No. C-04-0651, 2006 WL 3741946, at *6 (N.D. Cal. Dec. 19, 2006) (“[T]here
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is a strong policy reason which militates against allowing a party to hedge its bet by seeking a
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claim construction ruling from a court and then, if unhappy with that ruling, obtaining a vacatur by
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extending a covenant not to sue.”). Without diminishing the value of the services provided by
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AT&T, the Court finds that it has not shown that public policy favors vacatur.
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E.
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The Court has found that the motive factor is neutral, and that AT&T has not met its
Balancing Analysis
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burden of showing that the other factors favor vacatur. See supra, at Parts III(A)–(D).
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Accordingly, the Court finds that AT&T has not made the requisite showing under the equitable
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balancing test for vacatur of the Mootness Order.
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IV.
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CONCLUSION
For the foregoing reasons, AT&T’s Motion to Vacate the Mootness Order is DENIED.
The Clerk shall close this file.
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IT IS SO ORDERED.
Dated: June 6, 2024
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EDWARD J. DAVILA
United States District Judge
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Case No.: 20-cv-00294-EJD
ORDER DENYING PLTF.’S MOT. VACATE ORDER DISMISSING ACTION AS MOOT
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