City of St. Louis, Missouri, Plaintiff-Appellee, v. Level 3 Communications, L.L.C., Defendant-Appellant.
No. 07-3509.
United States Court of Appeals, Eighth Circuit.
Filed: Sept. 4, 2008.
Submitted: May 15, 2008.
540 F.3d 794
The second issue raised on appeal concerns the district court‘s holding that the appraisal of the third appraiser is binding on the parties because the appointment of a third appraiser “wоuld be rendered meaningless if the appraisal of the third appraiser were not binding on the parties.” We reject this approach. The lease provides for the appointment of three appraisers initially and as а matter of course. All three appraisers are, under the lease, required to perform an appraisal of the demised premises. Certainly, we could foresee a circumstance where the parties are unable to reach an agreement on the value of the property after reviewing all three appraisals. In that situation, the opinions of a non-partisan appraiser might be given more weight by a court, however this lease dоes not provide for the third appraiser to serve as a tiebreaker or for his appraisal to be binding on the parties.
III.
Accordingly, we reverse the district court‘s entry of summary judgment in favor of Value and declaratory judgment as tо the appraised value of the demised premises and remand this matter to the district court for further consideration consistent with this opinion.
LEVEL 3 COMMUNICATIONS, L.L.C., Plaintiff-Appellant, v. CITY OF ST. LOUIS, MISSOURI, Defendant-Appellee,
No. 07-3509.
United States Court of Appeals, Eighth Circuit.
Filed: Sept. 4, 2008.
Submitted: May 15, 2008.
540 F.3d 794
Patricia A. Hageman, Daniel J. Emerson, St. Louis, MO, Kenneth A. Brunetti, San Francisco, CA, for appellee.
Before LOKEN, Chief Judge, BEAM, and BYE, Circuit Judges.
BEAM, Circuit Judge.
In this licensing dispute with the City of Saint Louis, Level 3 appeals, chаllenging, among other things, the district court‘s1 denial of Level 3‘s motion to reopen discovery and the court‘s grant of summary judgment in the City‘s favor on the City‘s claim that neither the license agreement between the parties nor St. Louis City Revised Code Chapter 23.64 (the city ordinance) prohibits or effectively prohibits Level 3‘s ability to provide telecommunication services under
I. BACKGROUND
A. First Appeal
In 2004, Level 3 sued the City claiming that certain obligations in an agreement between the two parties violatеd state law;
B. Remand
After the remand, Level 3 asked thе district court to reopen discovery so that it could gather further evidence of “actual or effective prohibition” — “the new standard set by the Eighth Circuit‘s mandate.” The district court initially granted the request and the City filed an immediate motion for reconsideration and sought summary judgment in the City‘s favor on Level 3‘s section 253(a) claims. The City claimed that Level 3 had already conducted its discovery on the issue and could not bolster its position, in hindsight, through benefit of our remand. Level 3, on the оther hand, claimed that our interpretation of section 253 was “new” and that it, and the district court, had operated under a “misunderstanding” of what the section 253 requirements were, thus supporting Level 3‘s request to supplement its discovery responses.
The district court agreed with the City, holding that “[t]he Eighth Circuit spoke for the first time on an issue that has divided other courts, but it did not create a new standard.” Thus, said the district court, Level 3‘s suggestion that it was completely caught off guard by the standard adoрted by the circuit panel was not supported by the record. In fact, the court noted, during the prior discovery, the City requested that Level 3 provide evidence, by way of an interrogatory response, that it “had actually been” or “effectively [had been] prohibited from” providing services. Level 3 chose not to address that question.
In the initial action, as earlier stated, the parties argued two different controlling standards under section 253(a). The district court originally аdopted Level 3‘s position, and we reversed, concluding that the position advocated by the City was correct. Upon remand, the district court ultimately agreed with the City, vacated its order granting Level 3‘s motion to reopen, and granted the City‘s motion for entry of summary judgment, noting that
[i]t necessarily follows that the City was and is entitled to a grant of summary judgment on its claim for a declaration that, on the existing record, [which the district court ruled would not be expanded], neither Chaptеr 23.64 [of the City code] nor the license agreement prohibits or effectively prohibits Level 3‘s ability to provide telecommunications services under § 253(a).
II. DISCUSSION
A. Discovery Motion
We review the district court‘s discovery ruling for “gross abuse of discretion” and the cоurt‘s summary judgment ruling de novo. Samuels v. Kansas City Missouri Sch. Dist., 437 F.3d 797, 801 (8th Cir. 2006); Sallis v. Univ. of Minn., 408 F.3d 470, 477 (8th Cir. 2005). Review of district court discovery decisions is “very deferential” and “very narrow,” making it a high hurdle for Level 3 to clear. SDI Operating P‘ship, L.P. v. Neuwirth, 973 F.2d 652, 655 (8th Cir. 1992). This is especially true where, as here, we agree with the district court‘s final legal position on the issuе of summary judgment for the City.
Level 3 correctly points out that nothing in Level 3 I foreclosed the district court from reopening discovery. Indeed, our only instructions were “remand for further proceedings not inconsistent with this opinion.” Level 3 I, 477 F.3d at 535. Even so, the district court did not grossly
Likewise inapposite is the line of cases cited by Level 3 for the proposition that when a trial court is reversed on grounds that it applied an incorrect legal standаrd, the general practice is to remand to the trial court for application of the correct legal standard to the evidence. See Johnson v. California, 543 U.S. 499, 515, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 238-39, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). We do not question the accuracy of this proposition but fail to see its аpplicability here. Such a course was taken in this case. Upon remand, the district court applied the correct legal standard to the evidence in the existing record, which evidence was adequate to decide thе existing issue. This was not a gross abuse of its discretion.
B. Grant of Summary Judgment in Favor of the City
We review de novo a district court‘s grant of summary judgment, viewing the record in the light most favorable to the nonmoving party. Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 519 F.3d 466, 471 (8th Cir. 2008). “[S]ummary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id.
Level 3 argues that the district court took a large leap in logic in deciding the case. We think not. The court simply held that “[i]t necessarily follow[ed]” from the reversal of summary judgment for Lеvel 3 under the section 253(a) standard previously applied by the district court that the City was entitled to summary judgment “on its claim for a declaration that, on the existing record, neither [the city ordinance] nor the license agreement prohibits or effectively prohibits Level 3‘s ability to provide telecommunications services under § 253(a).”
Level 3 contends that the district court failed to discuss the factual bases of the City‘s summary judgment motion and further did not address how the City‘s sum-
Level 3 also fails in its argument that the district court‘s holding in this case creates some sort of general rule in a motion/cross-motion paradigm. The holding does not defy basic rules governing summary judgment proсeedings. It is just uniquely true here that the denial of one summary judgment motion leads to the granting of the other because the parties’ motions negate each other under the legal principles at work. We determined that Level 3, on the еstablished record, failed to prove actual or effective prohibition — the crux of the determination for each motion before the district court. “After a thorough review of the entire record, we find insufficient evidence frоm Level 3 of any actual or effective prohibition, let alone one that materially inhibits its operations. Indeed, Level 3 claims it need not, and admits it has not, made such a showing.” Level 3 I, 477 F.3d at 534. We have the same record before us today and Lеvel 3 points to no material fact that could alter that legal determination.
III. CONCLUSION
For the reasons stated, we affirm.
Notes
§ 253. Removal of barriers to entry
(a) In general
No State or local statute or regulation, or other State or local lеgal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
...
(c) State and local government authority
Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.