Midcontinent Communications v. North Dakota Public Service Commission et al

Filing 53

ORDER by Judge Daniel L. Hovland adopting 46 Report and Recommendations; denying 8 Motion to Dismiss; denying 19 Motion to Dismiss.(MMF)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHWESTERN DIVISION Midcontinent Communications, a South Dakota Partnership, ) ) ) Plaintiff, ) ) ORDER ADOPTING REPORT AND vs. ) RECOMMENDATION ) North Dakota Public Service Commission; ) Kevin Cramer, Tony Clark, and Brian Kalk, ) in their official capacities as Commissioners ) Case No. 1:09-cv-017 of the North Dakota Public Service ) Commission; and Missouri Valley ) Communications, Inc., ) ) Defendants. ) ______________________________________________________________________________ On April 8, 2009, the plaintiff, Midcontinent Communications, filed a complaint in which it alleged violations of 47 U.S.C. § 251. See Docket No. 1. Midcontinent Communications seeks a declaration that the North Dakota Public Service Commission's "Rural Exemption Order," issued on October 8, 2008, is invalid under federal law. On June 1, 2009 and June 12, 2009, defendant Missouri Valley Communications, Inc. and defendant North Dakota Public Service Commission filed motions to dismiss under Rules 12(b) and 56 of the Federal Rules of Civil Procedure. See Docket Nos. 8 and 19. Both Missouri Valley Communications and the North Dakota Public Service Commission argued that the Plaintiff's relief cannot be granted because the claim is precluded by prior adjudication before the North Dakota Public Service Commission; the Plaintiff did not timely appeal the North Dakota Public Service Commission's decision to the state district court, the appellate authority for the North Dakota Public Service Commission; and 47 U.S.C. § 251 does not raise a federal question.

Magistrate Judge Charles S. Miller, Jr. conducted a review of the record and relevant case law and submitted a Report and Recommendation on September 30, 2009. See Docket No. 46. Judge Miller recommended that Missouri Valley Communications' and the North Dakota Public Service Commission's motions to dismiss be denied. The parties were given ten (10) days to file objections to the Report and Recommendation. None of the parties filed an objection. The Court has carefully reviewed the Report and Recommendation, relevant case law, and the entire record and finds the Report and Recommendation to be persuasive. Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 46) in its entirety and DENIES Missouri Valley Communications' and the North Dakota Public Service Commission's motions to dismiss (Docket Nos. 8 and 19). IT IS SO ORDERED. Dated this 3rd day of November, 2009. /s/ Daniel L. Hovland Daniel L. Hovland, District Judge United States District Court

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