New Mexico Gas Company et al v. Board of County Commissioners of Bernalillo County
MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson DENYING 126 MOTION to Stay Pending Resolution of State Court Action. (kg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NEW MEXICO GAS COMPANY, PUBLIC
SERVICE COMPANY OF NEW MEXICO,
and QWEST CORPORATION d/b/a
BOARD OF COUNTY COMMISSIONERS
OF BERNALILLO COUNTY, NEW
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF CENTURYLINK’S
MOTION FOR STAY PENDING RESOLUTION OF STATE COURT ACTION
THIS MATTER is before the Court on Plaintiff Qwest Corporation d/b/a CenturyLink
(“CenturyLink”)’s Motion for Stay Pending Resolution of State Court Action (Doc. 126) filed on
March 22, 2017. Having reviewed the parties’ pleadings and the applicable law, the Court finds
that Defendant’s Motion is not well-taken and, therefore, is DENIED.
CenturyLink was one of three utilities plaintiffs that initially filed this action against
Defendant the Board of County Commissioners (“the County”), asserting multiple claims
predominately under New Mexico law. The lawsuit seeks declaratory and injunctive relief and
challenges the County’s right-of-way ordinance (“Ordinance”), which requires the utilities to
enter into right-of-way use agreements that the utilities claim are tantamount to franchise fees in
exchange for occupying and using the public rights-of way. The lawsuit challenges the County’s
franchise fee requirement.
The utilities each installed and maintained their respective
infrastructure in public rights-of-way within the County in order to serve their customers. The
utilities claim that through the Ordinance, the County’s franchise fee violates Section 253 of the
Telecommunications Act of 1996, 47 U.S.C. § 253 (“Section 253”) and New Mexico law,
NMSA 1978, § 62-1-3, for the placement and maintenance of Facilities in the public rights-ofway.
This Court declined to exercise supplemental jurisdiction over the state law claims (Doc.
42). Plaintiffs subsequently reasserted those claims in the Second Judicial District Court of the
State of New Mexico, New Mexico Gas Co. et al. v. Bd. of Cnty. Comm’rs of Bernalillo Cnty.,
Case No. D-202-CV-2014-05194 (“State Court Action”), where they remain pending. The only
claim currently before this Court is CenturyLink’s claim under Section 253.
Plaintiffs in the State Court Action were recently unsuccessful in their effort to obtain
summary judgment on their claim that Section 62-1-31 limits the County to recovering only very
limited administrative fees incurred in the act of granting a franchise. Plaintiffs were also
unsuccessful in attempting to persuade the New Mexico Court of Appeals to review the
interlocutory decision denying the summary judgment motion. Most recently, the New Mexico
Supreme Court denied Plaintiff’s Petition for Writ of Certiorari to review the Court of Appeals’
decision denying their application for interlocutory appeal. Plaintiff CenturyLink now asks the
Court to stay this matter pending resolution of the State Court Action.
The power to stay proceedings is “incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
This New Mexico statute authorizes certain corporations and public utilities to use the public highways and streets
for their pipes, poles, wires, towers, and cables, with certain limitations. The statute also authorizes boards of
county commissioners and municipal authorities to grant franchises not to exceed 25 years to corporations for such
purposes. The statute provides: “A board of commissioners is authorized to impose charges for reasonable actual
expenses incurred in the granting of any franchise pursuant to this section.” See NMSA 1978, § 62-1-3.
counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936). A district court
enjoys “broad discretion to stay proceedings as an incident to its power to control its own
docket.” Baca v. Berry, 806 F.3d 1262, 1269 (10th Cir. 2015) (quoting Clinton v. Jones, 520
U.S. 681, 706 (1997)). “And ‘[i]t is well settled that the district court has the power to stay
proceedings pending before it and to control its docket for the purpose of economy of time and
effort for itself, for counsel, and for litigants.’” Baca, 806 F.3d at 1269–70 (quoting Pet Milk Co.
v. Ritter, 323 F.2d 586, 588 (10th Cir. 1963)).
“[W]here a movant seeks relief that would delay court proceedings by other litigants he
must make a strong showing of necessity because the relief would severely affect the rights of
others. Thus, even when the relief sought is only a stay of the case in which the motion is made,
the suppliant for a stay must make out a clear case of hardship or inequity in being required to go
forward, if there is even a fair possibility that the stay for which he prays will work damage to
some one [sic] else.” Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., 713
F.2d 1477, 1484 (10th Cir. 1983) (quoting Landis v. North American Co., 299 U.S. 248, 255
(1936)) (emphasis omitted). “When applying for a stay, a party must show ‘a clear case of
hardship or inequity’ if ‘even a fair possibility’ exists that the stay would damage another party.”
Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080 (10th Cir. 2009) (quoting
Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 987 (10th Cir. 2000)).
Plaintiff asks the Court to stay the Section 253 claim pending final resolution of the State
Court Action to avoid the potential for multiple trials and conflicting decisions. Plaintiff states
that because the State Court Action will proceed on the six remaining claims2; which will include
discovery, expert discovery on right-of-way management costs and other relevant issues, and
likely a trial, it makes sense to stay this case because a decision in the State Court Action may
alleviate the need for a trial in this case. More specifically, for the remaining claim in this case
under Section 253, CenturyLink must show that the contemplated fee creates an effective
prohibition under Section 253(a), and that the fee does not constitute fair and reasonable
compensation under Section 253(c). See Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th
Cir. 2004). Plaintiff contends the discovery, testimony, proof, and trial on the second issue will
largely duplicate the analysis in the State Court Action where the Plaintiffs will be challenging,
among other things, whether the contemplated fee is limited to the “reasonable actual expenses
incurred in the granting of” the franchise. NMSA 1978, § 62-1-3. Plaintiff points out that it
makes the most sense to stay this case because it only involves one claim by one party, whereas
the State Court Action involves three Plaintiffs asserting six claims that this Court has already
found to predominate.
Defendant responds that a stay is not warranted because the challenge Plaintiff makes in
the State Court Action under Section 62-1-3 is different from Plaintiff’s Section 253 claim in this
action. To prevail on its Section 253 preemption claim, CenturyLink must demonstrate that the
Ordinance is prohibitive in effect, and does not satisfy Section 253(c)’s safe-harbor provision.
Qwest, 380 F.3d at 1269.
Section 253(c) saves from preemption regulations that are
competitively neutral, non-discriminatory, and fair and reasonable. Id. at 1272. In contrast, in
the State Court Action the dispute concerns the language in Section 62-1-3 that “[a] board of
commissioners is authorized to impose charges for reasonable actual expenses incurred in the
According to Plaintiff, the State Court Action will proceed because the New Mexico Supreme Court denied
certiorari and did not determine whether Section 62-1-3 is limited to costs incurred in the granting of a franchise.
See Doc. 130 (New Mexico Supreme Court denied the Petition for Writ of Certiorari on April 18, 2017).
granting of any franchise pursuant to this section.” Defendant reiterates that the district court in
the State Court Action rejected Plaintiff’s position that Section 62-1-3 authorizes only
administrative expenses incurred in granting the franchise. Thus, Defendant argues, Sections
253 and 62-1-3 do not contemplate the same analyses.
In the Reply, Plaintiff points out that it is not asking the Court to abstain under abstention
doctrines, rather it is asking for a simple stay. Plaintiff argues it is not required to show, as with
abstention, that the State Court Action involves similar parties and issues to the instant case.
Plaintiff states it is not asking the Court to abstain, but is asking for a stay because Plaintiff is
prepared to proceed with the Section 253 claim in the event the State Court Action does not
obviate the need for the Section 253 claim. Plaintiff contends if it is determined in the State
Court Action (where all three utilities remain as plaintiffs) that the Ordinance’s fee is unlawful
under state law, and that the County is therefore prohibited from enforcing the fee,
CenturyLink’s Section 253 claim will become moot because there will no longer be a
controversy between the parties. There thus would be nothing further for this Court to consider.
The Court agrees with Defendant that Plaintiff has not shown a decision in the State
Court Action will eliminate the need for Plaintiff to pursue its Section 253 claim. Although
Plaintiff claims it is not asking the Court to abstain therefore the Court need not consider the
similarity of the parties and issues, that is exactly what the Plaintiff is doing when it states that a
decision in the State Court Action could obviate the need for the Section 253 claim to proceed in
the present action. In other words, there is no showing that if the state court concludes that the
Ordinance comports with Section 62-1-3, Plaintiff will not pursue its Section 253 claim.
Moreover, as Defendant identifies, the Section 253 claim is fairly discrete and does not
necessarily depend on the outcome of the State Court Action. The two cases involve entirely
different statutes; one being a state law provision and the other being an unrelated federal statute.
Thus, the Court is not convinced that a decision in the State Court Action would entirely
eliminate Plaintiff’s Section 253 claim.
Critically, Plaintiff has not shown “a clear case of hardship or inequity” it will face if this
matter proceeds. Kreisler, 563 F.3d at 1080. Plaintiff argues Defendant has not demonstrated
the prejudice it will face if this matter is not stayed, however it is the Plaintiff’s burden to
establish it will suffer hardship or inequity without the stay. See id.; See also Commodity
Futures Trading, 713 F.2d at 1484. Although the Court does enjoy discretion to manage its
docket and to stay proceedings when appropriate, Plaintiff, as the party seeking the stay, must
demonstrate some level of hardship it would face absent a stay. Plaintiff has not done so.
Finally, the Court sees no reason to delay this case even further. This lawsuit has been
pending before the Court for over three years. Plaintiff acknowledges that the State Court Action
will involve lengthy proceedings, and the Court is not convinced that it should further prolong
this matter in light of the state proceedings. Plaintiff elected to bring this suit against the County,
and the County has indicated it is ready to proceed in defending itself. Therefore, Plaintiff’s
Motion for Stay Pending Resolution of State Court Action (Doc. 126) is DENIED.
UNITED STATES DISTRICT JUDGE
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