Signs for Jesus et al v. Pembroke, NH, Town of et al
Filing
35
ORDER denying 26 Motion for Leave to File Third-Party Complaint. So Ordered by Judge Paul J. Barbadoro.(jna)
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.
No. 1 at 4.
See Doc.
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.
sign ordinance).
Id.; see Doc. No. 1-5 (the
The ordinance regulates the size, placement,
and application process for signs in Pembroke.
5.
See Doc. No. 1-
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.”
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Doc. No. 1 at 5-6, 10.
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.
5-6.
See Doc. No. 1-5 at
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.
that application.
Pembroke’s Code Enforcement Officer denied
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.
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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
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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.
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The
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.
No. 27 at 2-4.
See Doc.
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.
See id. at 5.
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]”
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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
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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
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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
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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.
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