New Cingular Wireless PCS, LLC v. Town of Heath et al
| New Cingular Wireless PCS, LLC d/b/a AT&T Mobility |
| Town of Heath, Town of Heath Planning Board, Doug Mason, Bill Gran, Jo Travis, Robert Viarengo and Peter Charow |
| Edward Whitaker, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Cory Mason, David Knott, Mary Knott, Kevin Maloney and Barry Adams |
| 3:2021cv30106 |
| October 15, 2021 |
| US District Court for the District of Massachusetts |
| Mark G Mastroianni |
| Other Statutory Actions |
| None |
Docket Report
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This docket was last retrieved on December 13, 2022. A more recent docket listing may be available from PACER.
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| Filing 58 Judge Mark G. Mastroianni: ORDER entered. JUDGMENT. (Figueroa, Tamara) |
| Filing 57 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting #54 Motion for Entry of Agreement for Judgment by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. (Figueroa, Tamara) |
| Filing 56 Electronic Clerk's Notes for proceedings held before Judge Mark G. Mastroianni: Motion Hearing held on 12/13/2022. (Attorneys present via ZOOM Video: Atty Dennison, Atty Pare for Plaintiff(s), Atty Reich for Deft(s), Laura Kirshenbaum on behalf of Intervenor(s)) Court hears from parties re: #54 Joint MOTION for Entry of Agreement for Judgment . Court briefly hears from Intervenor: Mr. Kevin Maloney. Court will endorse order as discussed. A separate Order shall issue. (Court Reporter: Linda Walsh at lwalshsteno@gmail.com.) (Rivera, Christina) |
| Filing 55 ELECTRONIC NOTICE Setting Hearing on Motion: #54 Joint MOTION for Entry of Agreement for Judgment : This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Motion Hearing set for 12/13/2022 at 10:00 AM in Remote Proceeding : Springfield before Judge Mark G. Mastroianni. ***Each party (or set of parties) should be prepared to address the fairness of the agreement from that party's perspective. ***(Rivera, Christina) |
| Filing 54 Joint MOTION for Entry of Agreement for Judgment by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. (Attachments: #1 Exhibit 1 - Amended Agreement for Judgment)(Dennison, Wayne) |
| Filing 53 Set/Reset Deadlines as to Dispositive Motion Hearing set for 7/13/2023 11:00 AM in Hampden Courtroom (Remote only) before Judge Mark G. Mastroianni. (Zamorski, Michael) |
| Filing 52 Judge Mark G. Mastroianni: Electronic order entered granting #51 Assented-to Motion to Extend Time. The parties shall exchange initial disclosures by November 30, 2022. All non-expert fact discovery must be completed by March 1, 2023. The parties shall designate and disclose expert witnesses pursuant to Fed. R. Civ. P. 26(a)(2) and applicable Local Rules by March 29, 2023. Rebuttal expert disclosures, if any, shall be exchanged by April 26, 2023. Dispositive motions, if any, shall be filed by May 24, 2023; oppositions shall be filed by June 21, 2023; replies, if any, shall be filed by June 30, 2022. A hearing on any filed dispositive motions will be held on July 13, 2023, at 11:00 a.m.; if no dispositive motions are filed, this hearing shall be converted to an initial pretrial conference. (Zamorski, Michael) |
| Filing 51 Assented to MOTION for Extension of Time to 11/28/2022 to extend all filing deadlines by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility.(Dennison, Wayne) |
| Filing 50 CERTIFICATION pursuant to Local Rule 16.1 PLAINTIFFS CERTIFICATION PURSUANT TO LOCAL RULE 16.1(d)(3). (Dennison, Wayne) |
| Filing 49 ELECTRONIC NOTICE Setting Hearing on Motion This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov.Hearing on Dispositive Motion(s) set for 6/14/2023 at 11:00 AM in Remote Proceeding : Springfield before Judge Mark G. Mastroianni. (Rivera, Christina) |
| Filing 48 Judge Mark G. Mastroianni: ORDER entered. SCHEDULING ORDER: Parties shall exchange initial disclosures by 10/31/2022. All non-expert fact discovery to be completed by 1/30/2023. Dispositive motions, if any, due by 4/24/2023. A hearing on dispositive motions will be held on 6/14/2023 at 11:00 AM. If no dispositive motions are filed, this hearing shall be converted to an initial pretrial conference. It is So Ordered. See attached Scheduling Order for complete details. (Rivera, Christina) |
| Filing 47 Electronic Clerk's Notes for proceedings held before Judge Mark G. Mastroianni: Scheduling Conference held on 9/14/2022. (Attorneys present: Atty Pare, Atty Dennison, Atty Stein, Atty Kirshenbaum)Colloquy re: proposed dates for scheduling. Court will adopt dates with changes as discussed. Scheduling Order to issue. (Court Reporter: Leigh Gershowitz, email: leighjoeem@gmail.com.) (Rivera, Christina) |
| Filing 46 CERTIFICATION pursuant to Local Rule 16.1 With Certificate of Service. (Stein, Robin) |
| Filing 45 Proposed Document(s) submitted by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. Document received: Proposed Scheduling Order. (Dennison, Wayne) |
| Filing 44 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting #43 Motion to Continue. Scheduling Conference set for 9/14/2022 at 1:30 PM in Remote Proceeding : Springfield before Judge Mark G. Mastroianni. (Rivera, Christina) |
| Filing 43 Assented to MOTION to Continue Scheduling Conference to September 12, 13, or 14, 2022 by Barry Adams, David Knott, Mary Knott, Kevin Maloney, Cory Mason, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Edward Whitaker.(Kirshenbaum, Laura) |
| Filing 42 ELECTRONIC NOTICE of Scheduling ConferenceThis hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Scheduling Conference set for 8/11/2022 at 10:15 AM in Hampden Courtroom (Remote only) before Judge Mark G. Mastroianni. (Figueroa, Tamara) |
| Filing 41 Electronic order entered denying #25 Memorandum in Support of Agreement for Judgment. The court construes Dkt. No. 25 as a renewed motion for a consent decree. (See Dkt. No. 20 (denying without prejudice joint motion to approve consent decree)). On March 8, 2022, the court allowed neighboring landowners to intervene for the purpose of objecting to the proposed consent decree agreed-to by Plaintiff and Defendant. (Dkt. No. 33.) Thereafter, the landowners filed an intervenor complaint, answer, and opposition to the consent decree. (Dkt. Nos. 34, 35, and 36.) The intervening landowners argue they have standing to object to the consent decree, given that their legal rights under Massachusetts law to challenge the issuance of a variance would be extinguished if the court entered the consent decree. As a result, under Indus. Commc'ns & Elecs., Inc. v. Town of Alton, N.H., 646 F.3d 76, 80 (1st Cir. 2011), the intervenors "are entitled to resist the entry of a decree that terminates their protectable rights unless a violation of the [Telecommunications Act of 1996 (the Act)] is proven." The court agrees with the intervenors. Here, as in Town of Alton, the court has made no finding that the Town of Heath's denial of the variance requested by Plaintiff violated the Act. Id. Moreover, Plaintiff has not demonstrated a violation of the Act; instead, it merely argues that the settlement between Plaintiff and Defendant is reasonable and in the best interest of the town. As the First Circuit has explained: "It is one thing to resolve a case by agreement of all parties; it is another when a party to the case is protesting and the court's authority to wipe out the rights of the protesting party depends on findings that the court has not made. [Plaintiff] claims to be entitled to relief under the Act: all it now needs to do is to prove it." Id. at 81. Accordingly, the intervenors are entitled to litigate the merits of this dispute. The court directs the Clerk to set a scheduling conference. (Figueroa, Tamara) |
| Filing 40 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting #39 Motion to Withdraw as Attorney. Attorney Brian Alosco terminated. (Zamorski, Michael) |
| Filing 39 Assented to MOTION to Withdraw as Attorney by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility.(Alosco, Brian) |
| Filing 38 ANSWER to #34 Intervenor Complaint, by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility.(Alosco, Brian) |
| Filing 37 Defendants' ANSWER to #34 Intervenor Complaint, and Affirmative Defenses by Peter Charow, Bill Gran, Doug Mason, Town of Heath, Town of Heath Planning Board, Jo Travis, Robert Viarengo.(Reich, Mark) |
| Filing 36 MEMORANDUM in Opposition re #19 Joint MOTION to Approve Consent Judgment filed by Barry Adams, David Knott, Mary Knott, Kevin Maloney, Cory Mason, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Edward Whitaker. (Attachments: #1 Exhibit A)(Kirshenbaum, Laura) |
| Filing 35 ANSWER to #1 Complaint, by Barry Adams, David Knott, Mary Knott, Kevin Maloney, Cory Mason, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Edward Whitaker.(Kirshenbaum, Laura) |
| Filing 34 Intervenor COMPLAINT , filed by Barry Adams, David Knott, Mary Knott, Kevin Maloney, Cory Mason, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Edward Whitaker. (Attachments: #1 Exhibit A-D to Complaint in Intervention)(Kirshenbaum, Laura) |
| Filing 33 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered ALLOWING #22 Motion to Intervene. "On timely motion, the court may permit anyone to intervene who... has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(B). This case is brought by the Plaintiff wireless service provider under the Telecommunications Act challenging the municipal Defendants' denial of the wireless provider's application to build a cell tower. See 47 U.S.C. 332(c)(7)(B). The proposed intervenors (the "Landowners") own land directly abutting or near the proposed cell tower site. Commonalities of fact (e.g., the location of the tower, the height of the tower, the costs and benefits of the tower) and of law (e.g., whether the Town's decision denying the cell company's application was supported by substantial evidence) abound. The Landowners plausibly allege the Town Defendants will not adequately represent their interests; the Town Defendants have proposed a consent decree to which the Landowners plan to object if allowed to intervene. (Dkt. No. 26.) Having found the Landowners satisfy the requirement of commonality, "the district court can consider almost any factor rationally relevant but enjoys very broad discretion in granting or denying the [permissive intervention] motion." See Daggett v. Comm'n on Gov. Ethics and Election Practices, 172 F.3d 104, 113 (1st Cir. 1999).The court also finds the Landowners' motion is "timely" and will not "unduly delay or prejudice the adjudication of the original parties' rights." See Fed. R. Civ. P. 24(b)(1), (3). The Landowners allege they moved to intervene within days of learning the parties intended to settle the lawsuit and allow the cell tower to be built. (Dkt. No. 22-1 22.) Cf. Nextel Commc'ns. of the Mid-Atl., Inc. v. Town of Hanson, 311 F. Supp. 2d 142, 154 (D. Mass. 2004) (finding untimely intervenors' delay of two years following entry of consent decree). Plaintiff characterizes the Landowners' intervention as "disrupt[ing] the parties' duly-negotiated settlement" (Dkt. No. 27 at 10) but the parties have only proposed a consent decree for court approval, and the court has not made findings of fact or entered judgment. The court in its discretion allows the Landowners' motion to intervene pursuant to Rule 24(b)(1)(B). See Mary Kay Kane, 7C Fed. Prac. & Proc. Civ. 1911 (3d ed. Apr. 2021) (noting "courts generally have interpreted their discretion under [Rule 24(b)] broadly").The court does not address the Landowners' alternative argument for intervention as of right under Fed. R. Civ. P. 24(a)(2). (Healy, Bethaney) |
| Filing 32 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered STRIKING #31 Defendant's Motion to Clarify its Position Regarding Intervention as an improper pleading. A motion for reconsideration or clarification of a court order generally requests relief from the court in the form of further explanation as to an order's terms. See, e.g., Doe v. Londonderry Sch. Dist., 32 F. Supp. 2d 1360, 1360 (D. N.H. 1997) (granting motion for clarification and amending order). Defendant's motion for clarification does not seek clarification of any court order. It appears to be, more appropriately, a belated opposition or partial opposition to the pending #22 Motion to Intervene. (Zamorski, Michael) |
| Filing 31 MOTION for Clarification re #22 MOTION to Intervene by Peter Charow, Bill Gran, Doug Mason, Town of Heath, Town of Heath Planning Board, Jo Travis, Robert Viarengo.(Stein, Robin) |
| Filing 30 REPLY to Response to #22 MOTION to Intervene filed by Barry Adams, David Knott, Mary Knott, Kevin Maloney, Cory Mason, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Edward Whitaker. (Kirshenbaum, Laura) |
| Filing 29 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered ALLOWING #28 Motion for Leave to File Reply in Support of Motion to Intervene. The reply is due February 15, 2022 and is limited to 5 pages. (Zamorski, Michael) |
| Filing 28 MOTION for Leave to File Reply Memorandum in Support of Motion to Intervene by Barry Adams, David Knott, Mary Knott, Kevin Maloney, Cory Mason, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Edward Whitaker.(Kirshenbaum, Laura) |
| Filing 27 MEMORANDUM in Opposition re #22 MOTION to Intervene filed by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. (Alosco, Brian) |
| Filing 26 NOTICE by Barry Adams, David Knott, Mary Knott, Kevin Maloney, Cory Mason, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Edward Whitaker re #25 Memorandum of Law, Proposed Intervenors' Notice of Intent to Oppose Agreement for Judgment (Kirshenbaum, Laura) |
| Filing 25 MEMORANDUM OF LAW by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility to 20 Order on Motion to Approve Consent Judgment,,,,,,,. (Attachments: #1 Affidavit Affidavit of Robyn Provost-Carlson in Support of Agreement for Judgment, #2 Affidavit Affidavit of Brian Leyden in Support of Agreement for Judgment)(Alosco, Brian) |
| Filing 24 NOTICE of Appearance by Alan D. Rose, Jr on behalf of Barry Adams, David Knott, Mary Knott, Kevin Maloney, Cory Mason, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Edward Whitaker (Rose, Alan) |
| Filing 23 MEMORANDUM in Support re #22 MOTION to Intervene filed by Barry Adams, David Knott, Mary Knott, Kevin Maloney, Cory Mason, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Edward Whitaker. (Kirshenbaum, Laura) |
| Filing 22 MOTION to Intervene by Edward Whitaker, Tara Mason, Kate Peppard, Jesse Weigand, Kristen Weigand, Cory Mason, David Knott, Mary Knott, Kevin Maloney, Barry Adams. (Attachments: #1 Exhibit Complaint in Intervention and Ex A-D thereto)(Kirshenbaum, Laura) |
| Filing 21 STATUS REPORT Joint Status Report by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. (Alosco, Brian) |
| Filing 20 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered DENYING WITHOUT PREJUDICE #19 Joint Motion to Approve Consent Judgment."Court approval of a consent decree must involve some appraisal of the merits." Aronov v. Napolitano, 562 F.3d 84, 91 (1st Cir. 2009). The court notes the parties' use of the term "consent judgment" does not change the nature of the judicially-approved order they seek. See id. at 90 (finding "the formal label of 'consent decree' need not be attached; it is the reality not the nomenclature which is at issue") (internal citation omitted). To evaluate a proposed consent decree, the court must have some basis upon which to find the proposed consent decree is "fair, adequate, and reasonable; that the proposed decree will not violate the Constitution, a statute or other authority; and that it is consistent with the objectives of Congress." Varsity Wireless Investors, LLC v. Town of Hamilton, 370 F. Supp. 3d 292, 300 (D. Mass. 2019) (internal quotation marks omitted). The parties have not provided the court any evidentiary basis on which to evaluate the merits of their proposed consent decree. Cf. id. (approving consent judgment supported by affidavit "explain[ing] the reasons the Town has chosen to enter into the Agreement").By January 10, 2022, the parties shall file a joint status report to the court indicating whether they wish to proceed on a renewed motion for a consent decree supported by affidavit(s) or schedule an evidentiary hearing. Whether by hearing or by affidavit, the parties should provide evidence to enable the court to "examine both the procedural and substantive aspects of the decree" and to evaluate its "fairness... from the standpoint of signatories and non-parties to the decree." See id. (internal quotation marks omitted). (Zamorski, Michael) |
| Filing 19 Joint MOTION to Approve Consent Judgment by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. (Attachments: #1 Exhibit 1 - Agreement for Judgment)(Alosco, Brian) |
| Filing 18 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered DENYING WITHOUT PREJUDICE #17 Joint Motion for Order for Agreement for Judgment. By January 11, 2022, the parties shall submit either (1) a revised version that omits reference to findings of fact that this court has not specifically made but rather reflects the agreement of the parties, or (2) a further status report.(Zamorski, Michael) |
| Filing 17 AGREEMENT FOR JUDGMENT by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. (Alosco, Brian) |
| Filing 16 Defendants' Answer and Affirmative Defenses ANSWER to #1 Complaint, with Certificate of Service by Peter Charow, Bill Gran, Doug Mason, Town of Heath, Town of Heath Planning Board, Jo Travis, Robert Viarengo.(Stein, Robin) |
| Filing 15 NOTICE of Appearance by Robin Stein on behalf of Peter Charow, Bill Gran, Doug Mason, Town of Heath, Town of Heath Planning Board, Jo Travis, Robert Viarengo (Stein, Robin) |
| Filing 14 NOTICE of Appearance by Mark R. Reich on behalf of Peter Charow, Bill Gran, Doug Mason, Town of Heath, Town of Heath Planning Board, Jo Travis, Robert Viarengo (Reich, Mark) |
| Filing 13 AFFIDAVIT OF SERVICE Executed by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. Town of Heath served on 10/26/2021, answer due 11/16/2021. Acknowledgement filed by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. (Alosco, Brian) |
| Filing 12 SUMMONS Returned Executed Peter Charow served on 10/21/2021, answer due 11/12/2021. (Alosco, Brian) |
| Filing 11 SUMMONS Returned Executed Robert Viarengo served on 10/21/2021, answer due 11/12/2021. (Alosco, Brian) |
| Filing 10 SUMMONS Returned Executed Jo Travis served on 10/21/2021, answer due 11/12/2021. (Alosco, Brian) |
| Filing 9 SUMMONS Returned Executed Bill Gran served on 10/21/2021, answer due 11/12/2021. (Alosco, Brian) |
| Filing 8 SUMMONS Returned Executed Doug Mason served on 10/21/2021, answer due 11/12/2021. (Alosco, Brian) |
| Filing 7 SUMMONS Returned Executed Town of Heath Planning Board served on 10/21/2021, answer due 11/12/2021. (Alosco, Brian) |
| Filing 6 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Healy, Bethaney) |
| Filing 5 ELECTRONIC NOTICE of Case Assignment. Judge Mark G. Mastroianni assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Katherine A. Robertson. (Healy, Bethaney) |
| Filing 4 NOTICE of Appearance by Edward David Pare, Jr on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (Pare, Edward) |
| Filing 3 NOTICE of Appearance by Wayne F. Dennison on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (Dennison, Wayne) |
| Filing 2 CORPORATE DISCLOSURE STATEMENT by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility identifying Corporate Parent AT&T Inc. for New Cingular Wireless PCS, LLC d/b/a AT&T Mobility.. (Alosco, Brian) |
| Filing 1 COMPLAINT against Jo Travis, Town of Heath Planning Board, Robert Viarengo, Town of Heath, Peter Charow, Doug Mason, Bill Gran Filing fee: $ 402, receipt number AMADC-9009454 (Fee Status: Filing Fee paid), filed by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility. (Attachments: #1 Civil Cover Sheet, #2 Category Form, #3 Exhibit A - Special Permit Decision)(Alosco, Brian) |
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