New Cingular Wireless PCS LLC v. St. Charles County, Missouri

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

NEW CINGULAR WIRELESS PCS LLC, )

)

Plaintiff, )

)

v. ) No. 4:23-CV-1362 SRW

)

ST. CHARLES COUNTY, MISSOURI and )

ST. CHARLES COUNTY COUNCIL, )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion to dismiss filed by Defendant St. Charles

County Council (the “Council”) pursuant to Federal Rule of Civil Procedure 12(b)(2). Plaintiff

New Cingular Wireless PCS LLC d/b/a AT&T Mobility opposes the motion and it is fully

briefed. For the following reasons, the motion to dismiss will be granted.

I. Background

This is an action brought by Plaintiff New Cingular Wireless PCS LLC d/b/a AT&T

Mobility (“AT&T”) against Defendants St. Charles County, Missouri (the “County”) and St.

Charles County Council (“Council”). ECF No. 1. AT&T alleges the County and Council

unlawfully denied its applications for rezoning and a conditional use permit to construct a

wireless communications facility on real property located in St. Charles County, Missouri. In

Count I of the complaint, AT&T asserts the denial is a violation of the Communications Act of

1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7) (the “TCA”).

In Count II, AT&T seeks judicial review pursuant to Mo. Rev. Stat. § 536.100.1 For relief,

1 Section 536.100 provides for judicial review of agency action upon which the court “shall render judgment affirming,

reversing, or modifying the agency’s order . . . and may order the agency to take such further action as it may be

proper to require[.]”

AT&T seeks an order from this Court requiring Council to approve its applications and authorize

it to install a wireless communications facility at the proposed site.

II. Motion to Dismiss

On January 25, 2024, Defendant Council filed the instant motion to dismiss contending it

should be dismissed from this action for lack of personal jurisdiction pursuant to Federal Rule of

Civil Procedure 12(b)(2). ECF No. 23. Council identifies itself as a branch and subdivision of St.

Charles County, Missouri. Id. at 1. The motion cites to case law holding that local government

entities, such as police and sheriff’s departments, paramedic service departments, administrative

community service departments, and administrative personnel departments, are not suable

entities because they are branches or subdivisions of the municipality. ECF No. 24, at 2-3 (citing

Ketchum v. City of West Memphis, Ark., 974 F.2d 81 (8th Cir. 1992), Jordan v. Kansas City, 929

S.W.2d 882 (Mo. Ct. App. 1996), White v. Camden County Sheriff’s Department, 106 S.W.3d

626 (Mo. Ct. App. 2003), State ex rel. Gore v. Wochner, 475 F. Supp. 274, 280 (E.D. Mo. 1979),

aff’d 620 F.2d 183 (1980), cert denied 499 U.S. 875). Council also asserts that because it is a

governmental entity lacking capacity to sue under Missouri law, it also lacks legal capacity to be

sued in federal court. Id. at 2.

AT&T opposes the motion to dismiss arguing that this Court does have personal

jurisdiction over the County’s Council. ECF No. 25. AT&T reasons that because Council is a

legislative body, not merely a department or subdivision performing administrative functions, it

is an independent suable entity. Id. at 1-2. AT&T asserts that the case law Council cited in its

motion involved entities which were not legislatively created, but rather administrative arms of

the City lacking legal identities apart from the City. Whereas, here, Council is not an

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administrative entity performing administrative functions. To the contrary, AT&T argues

Council is empowered to act on its own behalf as a legislative entity. Moreover, AT&T asserts it

is necessary and proper for Council to be a party to this action because it is the body which

makes the decision to approve or deny conditional use permits. Id. at 3.

In reply, Council cites to one case, Purcell v. Cape Girardeau County Commission, No.

ED92213, 2009 WL 2145478 (Mo. Ct. App. July 21, 2009), arguing it should guide this Court’s

decision on the instant issue. Purcell was a civil lawsuit filed by Cape Girardeau County

Commissioner Jay Purcell against the Cape Girardeau County Commission. The trial court

granted summary judgment in the Commission’s favor. Id. at *1. On appeal, the Missouri Court

of Appeals determined the Cape Girardeau County Commission was not “an entity capable of

being sued in its own name.” Id. at *3-5. In reaching this decision, the Purcell court relied on

Missouri Supreme Court precedent American Fire Alarm Co. v. Board of Police Commissioners

of Kansas City, 285 Mo. 581, 227 S.W. 114 (1920), abrogated on other grounds by Reifschneider

v. City of Des Peres Public Safety Commission, 776 S.W.2d 1 (Mo. 1989), which held the

Kansas City Board of Police Commissioners could not be sued. Id. Purcell “recognize[d] [the

Cape Girardeau] county commission [wa]s created under different legislative authority” than the

Kansas City Board of Commissioners, yet found “no legal significance in this distinction” and

“no basis for departing from the well established and clear precedent of American Fire Alarm.”

Purcell, 2009 WL 2145478, at *5.

Council argues Purcell provides guidance for the instant case because “[l]ike the

Commission discussed in Purcell, the St. Charles County Council is the legislative branch of St.

Charles County, Missouri” and, like the Cape Girardeau County Commission, the St. Charles

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County Council cannot be sued. ECF No. 26 at 3. Council also highlights that “the Court of

Appeals noted that a number of Missouri cases provide that departments of local governments

cannot be sued separately from the local government with which it is affiliated, and that the

precedent set in those cases should be applied to the County Commission.” Id. at 3-4.

Because Purcell was not discussed in Council’s motion, the Court provided AT&T the

opportunity to file a surreply. See ECF No. 27. In its surreply, AT&T contends that because

Purcell is an unpublished opinion, it is not binding on this Court. AT&T urges this Court to

reject the reasoning advanced in both Purcell and Council’s motion to dismiss.

III. Legal Standard

A party may move to dismiss for lack of personal jurisdiction pursuant to Federal Rule of

Civil Procedure 12(b)(2). “When personal jurisdiction is challenged by a defendant, the plaintiff

bears the burden to show that jurisdiction exists.” Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d

816, 820 (8th Cir. 2014) (citations omitted). “To successfully survive a motion to dismiss

challenging personal jurisdiction, a plaintiff must make a prima facie showing of personal

jurisdiction over the challenging defendant.” Id. (citing K–V Pharm. Co. v. J. Uriach & CIA, S.A,

648 F.3d 588, 591 (8th Cir. 2011)).

IV. Discussion

The issue before this Court is whether the St. Charles County Council, the county’s

legislative body, is an entity that can be sued. This question appears to be an issue of first

impression for this Court, however, Purcell and American Fire Alarm, serve as persuasive

precedent for finding that Council is not a suable entity.

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AT&T expresses concern that if it cannot sue Council, “there is no party which the Court

can compel to approve the conditional use permit.” ECF No. 25 at 2. However, this concern is

unwarranted because prior lawsuits before this Court have resulted in compelling the approval of

conditional use permits in suits against the County of St. Charles itself and other municipalities.

See, e.g., Sprint Spectrum L.P. v. Cnty. of St. Charles, Mo., No. 4:04CV1144 RWS, 2005 WL

1661496 (E.D. Mo. July 6, 2005); Sprint Spectrum, L.P. v. City of Dardenne Prairie, Missouri,

No. 4:06CV-00095 JCH, 2006 WL 8459115 (E.D. Mo. Sept. 19, 2006); and Voicestream PCS II

Corp. v. City of St. Louis, Mo., No. 4:04CV732 FRB, 2005 WL 6122137 (E.D. Mo. Aug. 3,

2005).

A. Purcell v. Cape Girardeau County Commission

Council argues Purcell, an unpublished Missouri Court of Appeals opinion, provides the

Court with guidance in addressing this issue of first impression. See ECF No. 26. In Purcell, the

state court determined the Cape Girardeau County Commission, the county’s legislative body,

could not be sued in its own name. Purcell, 2009 WL 2145478, at *5. Purcell relied on American

Fire Alarm, a Missouri Supreme Court case, for the relevant factors. Id. at *4.

American Fire Alarm and Purcell looked to “the manner in which boards and

commissions for public purposes had been established and the powers conferred upon them.” Id.

Specifically, the factors considered were: (1) whether the commission was expressly empowered

under its legislative authority to sue or be sued in the name of the County Commission; (2)

whether the commission may lease property other than property owned by the county; (3)

whether the commission was authorized to borrow money; and (4) whether the commission was

authorized to issue negotiable bonds. Id. at *5. Noting that the absence of legislative authority to

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sue or be sued “was a determining factor” in American Fire Alarm, the Purcell court held the

Cape Girardeau County Commission, which had not been authorized to sue, be sued, lease

property other than property owned by the county, borrow money, or issue negotiable bonds, had

not been allocated sufficient powers or responsibilities to be a suable entity. Id.

Purcell understood the Kansas City Board of Police Commissioners in American Fire

Alarm and the Cape Girardeau County Commission to be different because the entities were

“created under different legislative authority.” Purcell, 2009 WL 2145478, at *5. However, the

court found “no legal significance in the distinction.” Id. Although the commission in American

Fire Alarm was distinguishable from the commission in Purcell in some respects, Purcell did not

find these distinctions legally relevant in determining whether the Cape Girardeau County

Commission was capable of being sued.

Council misunderstands the Purcell court’s rejection of a legally significant distinction

between the commission in American Fire Alarm and the commission in Purcell. The Purcell

court did not state the precedent set in Missouri cases involving departments of local

governments should apply to the commission, as Council contends. See ECF No. 26, at 3-4 (“the

Court of Appeals noted that a number of Missouri cases [which] provide that departments of

local governments cannot be sued separately from the local government with which it is

affiliated . . . should be applied to the County Commission”).

Rather, the Purcell court explicitly acknowledged the legal significance of the distinction

between departments of a local government and commissions like those implicated in American

Fire Alarm and Purcell. See Purcell, 2009 WL 2145478, at *5. In beginning its analysis of

whether the Cape Girardeau County Commission may be sued as an entity, the Purcell court

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cited to Jordan v. Kansas City to support its conclusion that “[i]f a commission is deemed to be a

department of an existing local government, our inquiry ends because a department is not

capable of being sued.” Id. at *3. In the following sentence, the court stated “[h]owever, if as

here, the Commission is not a department of a local government . . . then our inquiry continues to

determine whether . . . the Commission as an entity [is] capable of being sued in its own name.”

Id. In Purcell, the court clarified its inquiry must continue because, like the commission in

American Fire Alarm, the Cape Girardeau County Commission was not a department of a

municipal government. Id. at *4. Thus, the Purcell court made clear that it finds legal

significance in the distinction between the commissions at issue in Purcell and American Fire

Alarm and departments.

This Court similarly finds there is legal significance in the distinction between the

departments implicated in the cases Council cites and the St. Charles County Council. Council is

not a department of St. Charles County; rather, it is the county’s legislative body. See Charter of

St. Charles County, Missouri (“Charter”) § 2.100. Thus, the case law Council cites regarding

departments of municipalities is inapplicable to the instant case. See ECF No. 24 at 2-3 (citing

Jordan v. Kansas City, 929 S.W.2d 882 (Mo. Ct. App. 1996) (holding the Neighborhood and

Community Services Department could not be sued), White v. Camden County Sheriff’s

Department, 106 S.W.3d 626 (Mo. Ct. App. 2003) (finding the Camden County Sheriff’s

Department was not an entity capable of being sued), State ex rel. Gore v. Wochner, 475 F.

Supp. 274, 280 (E.D. Mo. 1979), aff’d 620 F.2d 183 (1980), cert denied 499 U.S. 875) (holding

the Department of Personnel was not a suable entity), Catlett v. Jefferson County, 299 F.Supp.2d

967 (E.D.Mo.2004) (finding the Jefferson County Sheriff’s Department could not be sued),

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Ketchum v. City of West Memphis, Ark., 974 F.2d 81 (8th Cir. 1992) (finding the West Memphis

Police Department was not a juridical entity capable of being sued).

Although Purcell does not support Council’s argument that Missouri precedent involving

departments of local governments should be applied to the St. Charles County Council, Purcell

does lend support to Council’s overarching contention that it is not a suable entity. Like the

commissions in Purcell and American Fire Alarm, Council has not been authorized to sue or be

sued.2 Further, while Council does not have the power to issue negotiable bonds, it is

empowered to “authorize the County Executive to execute and issue negotiable instruments of

the County . . . .” See Charter of St. Charles County, Missouri (“Charter”) § 2.519. However,

unlike the commission in Purcell, Council is authorized to borrow money and may lease

property that is not owned by the county. See Charter § 2.519 (Council has the power to

“[b]orrow money”); Charter § 2.517 (Council has the power to “[r]ent or lease County properties

and rent or lease other property for County use” (emphasis added)).

While the strongest factor weighs in favor of finding Council is not an entity capable of

being sued, the factors analyzed by the Purcell court point to different conclusions when applied

to the instant case. Thus, the Court turns to American Fire Alarm, the case that provided Purcell

court with the persuasive precedent it used to reach its conclusion.

B. American Fire Alarm Co. v. Board of Police Commissioners of Kansas City

Unlike Purcell, American Fire Alarm did not involve a municipality’s legislative body.

See American Fire Alarm, 227 S.W. at 115. However, it is a case in which the state court

2 The County Counselor, rather than the Council, is the entity authorized to “institute, in the name of and on behalf

of the County, all civil suits and other proceedings . . . .” See Charter of St. Charles County, Missouri (“Charter”) §

4.602.4.

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determined whether a non-departmental entity within a municipality’s government was capable

of being sued. See id. at 117. American Fire Alarm focused on three factors to make its

determination.

First, American Fire Alarm considered whether the Board of Police Commissioners had

the power to contract. See id. However, the court held this factor was not determinative because

even though the Board of Police Commissioners had the power to make contracts, the court held

it was not a suable entity. See id. at 119-20. Second, American Fire Alarm reasoned, “[i]f a

power is given . . . to hold the title of real property . . . such a grant may be taken to show a

legislative intent” to allow the property holding entity to be sued. Id. at 119. The court qualified

that “[t]he title to whatever property may be acquired by the action of the police commissioners

of Kansas City does not appear to be vested in them as a body corporate, although they have the

care and custody of it.” Id. at 120. Thus, while the power to hold title to property may militate in

favor of finding an entity capable of being sued, the mere care and custody of the property of

another entity does not weigh in favor of finding the custodial entity capable of being sued.

Finally, American Fire Alarm devoted great attention to whether the entity had explicitly been

empowered to sue or be sued. See id. at 118-121. The court believed this factor to be so

determinative that it found “in the absence of a statute giving the body a distinctive name

whereby it may sue and be sued, it does not follow, according to authorities we have found, that

an action will lie against it . . .” as an entity. Id. at 118.

The American Fire Alarm factors weigh in favor of finding Council cannot be sued. First,

Council has been empowered to contract in many capacities. See Charter § 2.512 (Council has

the power “to contract with Cities, Towns, or Villages to assess, equalize, remit, and collect their

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taxes”); Charter § 2.527 (Council has the power to “contract with other jurisdictions situated in

the County . . .”); Charter § 2.528 (Council has the power to “[c]ooperate or join by contract or

otherwise with any City, County, State, or political subdivision or agency thereof, or with the

United States or any agency thereof . . .”). However, as made clear by American Fire Alarm,

contract power alone is insufficient to find an entity capable of being sued.

Second, the St. Charles County Charter empowers Council to acquire real property.

Charter § 2.516 (Council has the power to “[a]cquire in the name of the County by

condemnation, purchase, gift, donation or otherwise, real and personal property”). However,

according to the Charter, Council acquires the property in the name of the County. See id.

(emphasis added). Thus, the distinction made in American Fire Alarm between an entity

acquiring property and having the property vested in that entity applies in the instant case. See

American Fire Alarm, 227 S.W. at 120 (“[t]he title to whatever property may be acquired by the

action of the police commissioners of Kansas City does not appear to be vested in them as a body

corporate, although they have the care and custody of it”). Because any real property acquired by

Council is “in the name of the County,” the property does not appear to be vested in Council. See

Charter § 2.516. Thus, this factor militates against finding Council to be a suable entity.

Finally, the fact that the Charter does not empower Council to sue or be sued weighs

strongly in favor of finding it incapable of being sued. American Fire Alarm considered this

factor at length, and the Purcell court stated explicitly, it was largely determinative of the

outcome. Thus, although neither Purcell nor American Fire Alarm are binding precedent for the

question before this Court, they provide strong persuasive precedent. Therefore, this Court finds

Council is not an entity capable of being sued in its own name.

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C. AT&T could obtain the relief it seeks even if Council is not a party

AT&T argues “it is necessary and proper for the Council to be a party to this action, as

without the Council, there is no party which the Court can compel to approve the conditional use

permit.” ECF No. 25, at 2. However, precedent reveals AT&T could obtain relief by suing the

County of St. Charles, and thus, its concern is unwarranted. In several cases, parties that had

applied for and were denied conditional use permits by the municipalities’ respective Boards of

Adjustments sued the municipality itself and were granted the relief sought. See, e.g., Sprint

Spectrum, L.P. v. City of Dardenne Prairie, Missouri, No. 4:06CV-00095 JCH, 2006 WL

8459115 (E.D. Mo. Sept. 19, 2006) (court ordered sole defendant City of Dardenne Prairie to

issue plaintiff Sprint Spectrum variances and a conditional use permit in accordance with its

application); Voicestream PCS II Corp. v. City of St. Louis, MO, No. 4:04CV732 FRB, 2005 WL

6122137 (E.D. Mo. Aug. 3, 2005) (court issued an injunction ordering sole defendant City of St.

Louis to issue plaintiff Voicestream PCS II Corporation, d/b/a T-Mobile a conditional use

permit). In fact, one such example involved the County of St. Charles.

In Sprint Spectrum L.P. v. Cnty. of St. Charles, Mo., No. 4:04CV1144 RWS, 2005 WL

1661496 (E.D. Mo. July 6, 2005), the plaintiff, Sprint Spectrum L.P. (“Sprint”) wanted “to build

a wireless telecommunications tower in St. Charles county” and applied for a conditional use

permit in order to do so. Id. at 1. After the St. Charles County Council denied Sprint’s

application, Sprint filed suit against the County of St. Charles alleging Council’s denial of its

application violated the Federal Telecommunications Act. Id. at 2. This Federal Court found St.

Charles had failed to comply with the requirements of the Federal Telecommunications Act in

denying Sprint’s application and “grant[ed] an injunction ordering St. Charles to grant Sprint’s

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application for a conditional use permit to construct a 180 foot tower.” /d. at 8. Although the St.

Charles County Council was not party to the lawsuit, the court ordered the issuance of a

conditional use permit, and thus, Sprint was able to obtain the relief it sought without suing the

council empowered to approve conditional use permits. See id. Therefore, this Court’s finding

that Council is not a suable entity does not leave AT&T without a remedy.

Accordingly,

IT IS HEREBY ORDERED that the motion to dismiss filed by Defendant St. Charles

County Council (the “Council”) pursuant to Federal Rule of Civil Procedure 12(b)(2) is

GRANTED. [ECF No. 23].

An appropriate order of partial dismissal will accompany this Memorandum and Order.

UNITED STATES MAGISTRATE JUDGE

Dated this 13th day of May, 2024.

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