Civil No. 04-2981 (JRT/SRN).
September 10, 2004
Andrew G. McBride, WILEY REIN FIELDING, Washington, DC, and Jeffrey John Keyes, BRIGGS MORGAN, Minneapolis, MN, for plaintiffs Cellco Partnership, Verizon Wireless (VAW) LLC, and Duluth MSA Limited Partnership;
Jeffrey John Keyes, BRIGGS MORGAN, Minneapolis, MN, for plaintiffs Midwest Wireless Holdings L.L.C., Midwest Wireless Communications L.L.C., American Cellular Corporation, and Rural Cellular Corporation;
Kenneth Schifman, Sprint Corporation, and Teresa J. Kimker, HALLELAND LEWIS NILAN SIPKINS JOHNSON, Minneapolis, MN, for plaintiffs Sprint Spectrum L.P. and Wireless Co, L.P.;
Seamus C. Duffy, DRINKER BIDDLE REATH, Philadelphia, PA, and Barbara P. Berens, KELLY BERENS, Minneapolis, MN, for plaintiff ATT Wireless Services of Minnesota, Inc.;
Michael R. Drysdale, DORSEY WHITNEY, Minneapolis, MN, and Daniel B. Rapport, FRIEDMAN KAPLAN SEILER ADELMAN LLP, New York, NY, for plaintiffs VoiceStream Minneapolis, Inc. and T-Mobile USA, Inc.
Cassandra Opperman O'Hern and Brian Sande, Assistant Attorneys General, OFFICE OF THE MINNESOTA ATTORNEY GENERAL, St. Paul, MN, for defendant.
ORDER GRANTING STAY PENDING APPEAL
On September 3, 2004, the Court issued its Memorandum Opinion and Order on plaintiffs' Motion for a Preliminary Injunction ("PI Order"), entering a partial preliminary injunction against enforcement of Article 5 of H.F. No. 2151, Minn. Sess. L. Ch. 261 ("Article 5") and dissolving its previously issued Temporary Restraining Order. The Court stayed the implementation of its PI Order until September 15, 2004.
Plaintiffs have indicated that they plan to appeal the Court's PI Order to the Eight Circuit Court of Appeals and, pursuant to Federal Rule of Appellate Procedure 8(a)(1), move for a stay of the PI Order pending final resolution of their appeal. In the alternative, plaintiffs seek a stay until the Eighth Circuit Court of Appeals has had an opportunity to hear and rule upon a motion, pursuant to Federal Rule of Appellate Procedure 8(a)(2), to stay Article 5 from taking effect during the pendency of the appeal.
In determining whether to grant a stay, the Court must consider four factors: (1) whether the applicant demonstrates a likelihood of succeeding on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the opposing party; and (4) the public interest. In re Workers' Comp. Refund, 851 F. Supp. 1399, 1401 (D. Minn. 1994).
The Court considered these factors in its PI Order and ruled in favor of the legality of most of Article 5. The Court based its decision, in part, on the limited burden of the record keeping requirements on the wireless providers, the potential for significant harm to consumers as a result of the unilateral changes to their contracts, Minnesota's interest in consumer protection, and the public interest in deferring to the will of Congress. In light of the Court's previous analysis of these factors, the Court declines to stay the PI Order pending resolution of plaintiffs' appeal.
Plaintiffs have advised the Court that in the event that this Court declines to issue a stay during the pendency of the appeal, they will ask the Eighth Circuit Court of Appeals to issue such a stay. Absent action from either this Court or the Eighth Circuit, the PI Order will become effective on September 15, 2004. In the event that the Eighth Circuit grants plaintiffs' request for a stay, the statute in question would enter into force, and then, in short order, cease to be in force. In order to avoid this confusing circumstance, the Court finds it appropriate to grant a temporary stay of the PI Order so that the Eighth Circuit may consider plaintiffs' request. Thus, the Court stays the PI Order until October 15, 2004 or until the Eighth Circuit determines whether a stay is necessary, whichever date is earliest.
Based on the submissions and the entire file and proceedings herein, IT IS HEREBY ORDERED that Plaintiffs Verizon Wireless, Midwest Wireless, ACC, RCC, Sprint, ATT Wireless, and T-Mobile's Joint Motion for Stay Pending Appeal [Doc. No. 89] is GRANTED IN PART:
1. The Court's Memorandum Opinion and Order On Plaintiffs' Motion For A Preliminary Injunction [Doc. No. 88] is stayed until October 15, 2004 or such time as the Eighth Circuit Court of Appeals rules upon plaintiffs' motion to that court for a continued stay during the pendency of the appeal, whichever date is earliest, is GRANTED.
2. Plaintiffs' motion is DENIED in all other respects.