Big Rift Emerges in Cell Tower Case Over Expediting Intervenor Motions

U.S. District Judge Joanna Seybert for Eastern New York in Central Islip granted the Dec. 12 motion of defendant Muttontown, New York, for a conference in anticipation of the village’s motion to dismiss AT&T’s cell tower complaint, said her electronic order Friday (docket 2:22-cv-05524). Seybert scheduled that in-person conference for Jan. 31 at 10:30 a.m., her order said.

AT&T is suing to force Muttontown to approve construction of a 150-foot cell tower to remedy an allegedly significant service gap. Before the court are two motions to intervene from about 30 village residents seeking to block the tower for fear it will damage their property values and aesthetics.

AT&T and Muttontown disagree whether the village’s motion to dismiss should take precedence over the intervenor motions. AT&T believes briefing on the intervenor motions should proceed while the court weighs Muttontown’s motion to dismiss, its outside counsel, Andrew Joseph of Faegre Drinker, told U.S. Magistrate Judge Lee Dunst in a letter Thursday.

The Telecommunications Act “requires expedited disposition of this matter,” said Joseph. But due to Muttontown’s multiple deadline extension requests, “this action has been stalled” since the complaint was filed in September, he said. Any balancing of the “highly unlikely chance” of a Rule 12 dismissal “against the absolute certainty that deferral of the intervention motions will delay and complicate this litigation comes out in favor of requiring the intervention motions to proceed,” he said.

That would be true “even without consideration of the provisions of the TCA requiring expedited resolution of the litigation,” said Joseph. He asked that the intervention motions, which date to November, be decided “as soon as possible,” and that the Muttontown defendants be required to respond to those motions by Feb. 13. The proposed intervenors should have an additional two weeks to file a reply, if the court permits such a filing, “with a prompt return date set,” he said.

The Muttontown defendants disagree, believing their “dispositive motion” to dismiss should be addressed before the court considers the intervention motions, Keith Corbett of Harris Beach, outside counsel for the village, wrote Dunst in a separate letter Thursday (the judge had asked for a joint filing between the parties). “Having my clients pay for and defend against intervention when they may no longer be in the case appears counterproductive,” he said.

The two attorneys for the proposed intervenors “take no position on the timing of the intervention motion and have no issue if the dispositive motion is addressed first,” said Corbett. The Muttontown defendants agree to give the proposed intervenors “substantive time for reply papers,” if granted by the court, he said.