Opinion
Civil Action No. 00-3523 Section M
December 3, 2001
ORDER
Before the Court is a Motion for Summary Judgment filed by defendant, Gulf Coast Real Estate Consultants, L.L.C. (Doc. No. 49) which was submitted for hearing on the briefs on October 31, 2001. After consideration of the motion and the opposition thereto, the Court has determined that the motion is meritorious, and accordingly, it is hereby GRANTED.
I. FACTS
Plaintiffs originally filed suit against Sprint Spectrum, L.P., (hereafter "Sprint"), Professional Construction Services, Inc., and Gulf Coast Real Estate Consultants, L.L.C. (hereafter "Gulf Coast") alleging a myriad of causes of action arising out of the placement, construction and operation of a cell tower near plaintiffs' neighborhood.
Plaintiffs subsequently added the City of New Orleans and Greater St. Stephens Ministries, the owner of the property.
In the original state court petition and in the First Amended Complaint, plaintiffs assert various causes of action against the defendants in globo, contending that they are all jointly and severally liable for plaintiffs' damages. It appears from the opposition to Gulf Coast's Motion for Summary Judgment, that plaintiffs' claims against Gulf Coast are as follows: 1) violation of local zoning laws in locating the monopole near a residential neighborhood, 2) property damage due to pile driving in violation of La. Civ. Code art. 667, 3) violation of nuisance law and La. Civ. Code art. 2315 because of a humming sound emitting from the cell tower, 4) racial discrimination in placing the monopole in a minority neighborhood, 5) conspiracy with the City of New Orleans to deprive plaintiffs of due process and equal protection without a public hearing, and 6) causing fear of health concerns arising from the proximity of the monopole to their residences.
Gulf Coast seeks summary judgment contending that it is not liable to plaintiffs under any of the theories set forth above because Gulf Coast's only involvement in this matter was to identify property within a certain area that would be suitable for a cell tower. Specifically, Gulf Coast relies on the affidavit of Robert O'Connor, an employee of Sprint, who testified that Sprint hired Gulf Coast to help identify an appropriate location for the cell site; that Sprint provided Gulf Coast a "search ring" within which Sprint wanted to locate the cell and that Gulf Coast, pursuant to its contract, identified and submitted three candidate properties which met the criteria provided by Sprint. He further testified that Sprint selected the location for the cell: not Gulf Coast.
Plaintiffs submit the following evidence in opposition to the motion: 1) a letter from Lagniappe Environmental, L.L.C. to Sprint which states that "the subject property and the surrounding properties are predominantly residential"; 2) a report from Gore Engineering, Inc. suggesting that the pile driving activities should be monitored; 3) estimates to repair damage to homes allegedly caused by pile driving; 4) the testimony of plaintiff, Harold Young, who states that these types of structures are not placed in predominately white neighborhoods; 5) an affidavit from Dr. Silas Lee, III who identifies the racial make-up of this and several other African-American neighborhoods where Sprint has located cell towers; 6) a copy of the permit issued by the City of New Orleans for the construction of a monopole on the Greater St. Stephen's Ministries property; and 8) a copy of an article from the internet regarding the health hazards relating to cell phone use.
Plaintiffs refer to testimony of Dawn Brown who states that her father was diagnosed with a brain tumor since construction of the monopole and other deposition testimony that the plaintiff who live nearest the cell cite reports a constant humming sound. However, this testimony is not a part of the summary judgment record that is before the Court.
II. LAW AND ANALYSIS
Summary judgment is appropriate if the record discloses "that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25, 2553-54. While we must "review the facts drawing all inferences most favorable to the party opposing the motion," Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986), that party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256-57 (1986).
It is clear from the evidence submitted, that the facts do not support the claims asserted against Gulf Coast. It is uncontroverted that Gulf Coast contracted with Sprint to perform a service locating property and that Gulf Coast's involvement was limited to locating property for Sprint. Plaintiffs have come forth with no evidence which suggests that Gulf Coast can be held liable under any theory of law for damages arising from the ultimate selection of the site, construction of the monopole, or subsequent operation of the monopole. Gulf Coast did not select the site, own the site, lease the site, build or operate the monopole.
Accordingly, the Motion for Summary Judgment filed by Gulf Coast Real Estate Consultants is GRANTED. All claims against Gulf Coast Real Estate, L.L.C. are hereby DISMISSED WITH PREJUDICE.