UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Industrial Tower

and Wireless, LLC

v. Civil No. 08-cv-122-JL

Opinion No. 2010 DNH 180

Town of Epping and

Jane Burley

MEMORANDUM ORDER

Industrial Tower and Wireless, LLC (“ITW”) and the Town of

Epping jointly move to “enforce” this court’s order approving

their settlement of ITW’s claim that the Town violated the

Telecommunications Act of 1996 (“TCA”) by denying ITW a permit to

construct a cellphone tower. The settlement provided that the

permit would issue subject to certain additional conditions. ITW

and the Town now seek to enjoin Jane Burley (who had intervened

in this case prior to the settlement agreement, but did not join

in it) and one Peter Dubrava (who was never a party here) from

challenging the permit in state court.

This court has subject-matter jurisdiction to consider the

motion to enforce the order approving the settlement agreement

under the doctrine of ancillary jurisdiction. Pramco, LLC ex

rel. CFSC Consortium, LLC v. San Juan Bay Marina, Inc., 435 F.3d

51, 54 (1st Cir. 2006) (ruling that an order approving a

settlement agreement conveyed jurisdiction to enforce it) (citing

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 1 of 14
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381

(1994)). As Burley points out, however, this court lacks the

authority to enjoin her or Bruvara from pursuing state-court

proceedings by virtue of the Anti-Injunction Act, 28 U.S.C. 

§ 2283, so the motion is denied.

I. Background

This case began when ITW challenged a decision by the Town’s

planning board denying it a permit for the cellphone tower as a

violation of the TCA, see 47 U.S.C. §§ 332(a)(7)(B)(i)(II) and

332(a)(7)(B)(iii), and sought judicial review of the decision

under New Hampshire law, see N.H. Rev. Stat. Ann. § 677:15. 

Burley, who owns property abutting the site of the proposed

tower, promptly filed a motion to intervene, which the court

granted over ITW’s objection. See Order of Sept. 30, 2008. 

Dubrava, though, never filed a motion to intervene or otherwise

participated in this case, so far as the record indicates.

Following substantial motion practice, ITW and the Town

filed a joint motion asking the court to “[a]pprove and order the

implementation of the following terms of settlement” to which

they had agreed, i.e., that the permit for the tower would issue

subject to specified conditions. ITW and the Town noted,

however, that Burley purported to object to the settlement. So

the court ordered her “to file a memorandum regarding her

2

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 2 of 14
continued standing in this matter following such a settlement

under applicable law.” Order of Mar. 9, 2010.

 Burley argued in response that the settlement failed to

comply with New Hampshire law, chiefly because it called for the

issuance of a permit without a public hearing in violation of the

state’s open meeting law, N.H. Rev. Stat. Ann. § 91-A:2, II. In

granting the motion to approve the settlement over Burley’s

objection, this court ruled that it “need not resolve [that

argument] in order to enter the judgment[] that the provider[]

and the town[] [has] requested.” Indus. Tower & Wireless, LLC v.

Town of Epping, 2010 DNH 081, 11. The court explained that it

normally does not inquire into the litigants’ legal authority to

reach a particular settlement of a pending action, and had been

provided with no case law suggesting that such an inquiry was

necessary here. Id. at 11-12. Thus, this court “expresse[d] no

views on the merits” of Burley’s state-law arguments. Id. at 11. 

The court also ruled that it could enter final judgment in this

case based on the settlement, because Burley conceded “that if

the Town and ITW have, in fact, reached a valid and enforceable

settlement of this dispute, then there is no need for her claims

to continue in this forum,” and she did not identify “what those

claims are or whether they were ever presented here.” Id. at 5.

 Following entry of the judgment, ITW commenced construction

activities at the tower site in June 2010. Dubrava, who owns

3

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 3 of 14
property abutting the site, responded by filing an action against

ITW and the Town in Rockingham County Superior Court. See Peter

M. Dubrava v. Town of Epping et al., No. 10-cv-452 (N.H. Super.

Ct. June 11, 2010). The action seeks a declaration that “the

purported issuance” of the permit is void because it occurred in

violation of New Hampshire law, specifically N.H. Rev. Stat. Ann.

§§ 91-A:2, 676:3, and 676:4, and an injunction barring ITW and

the Town “from taking any action pursuant to the invalid permit.”

On July 1, 2010, Dubrava filed a motion for a preliminary

injunction in the state-court action, seeking to prevent further

construction of the tower. On that same day, ITW and the Town

filed the present “verified” motion in this court to enjoin

Dubrava--and Burley--from challenging the permit in state court,

including by seeking an injunction “that would interfere with,

burden or otherwise impair performance in accordance” with this

court’s order approving the settlement agreement.

Burley filed an affidavit in support of Dubrava’s motion for

a preliminary injunction in the state-court suit, and he is

represented by the same counsel there as she is here, but she

nevertheless swears that Dubrava had no role in her litigation of

the case here, and she likewise “do[es] not control [his]

actions” in the case there. To contradict this, ITW and the Town

have submitted only statements in their verified motion that

Burley “solicited” Dubrava to serve as the plaintiff in the

4

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 4 of 14
state-court action, “to be funded exclusively by Ms. Burley,” and

that Dubrava has since “disclosed to ITW the true nature of his

and Ms. Burley’s involvement.” These statements are verified by

ITW’s engineering and compliance manager, who does not elaborate

or explain how he knows these alleged facts.

II. Analysis

In support of their motion to enjoin Burley and Dubrava from

challenging the permit for the tower in state court, ITW and the

Town invoke the All Writs Act, which provides that federal courts

“may issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and

principles of law.” 28 U.S.C. § 1651(a). ITW and the Town argue

that enjoining such state-court proceedings is necessary and

appropriate in aid of this court’s jurisdiction because those

proceedings seek to prevent them, “as settling parties, from

performing in accordance with the concluding order” granting

their motion to approve their settlement agreement.

Burley argues that this court lacks the power to grant this

relief by virtue of the Anti-Injunction Act, which provides that

a federal court “may not grant an injunction to stay proceedings

in state court except as expressly authorized by Act of Congress,

or where necessary in aid of its jurisdiction, or to protect or

effectuate its judgments.” 28 U.S.C. § 2283. The Anti5

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 5 of 14
Injunction Act is thus “an absolute prohibition against enjoining

state court proceedings, unless the injunction falls within one

of three specifically defined exceptions.” Atl. Coast Line R.R.

Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286 (1970).

ITW and the Town do not explain how the injunction they seek

fits within any of the exceptions enshrined in the AntiInjunction Act, i.e., that it is expressly authorized by

Congress, necessary in aid of this court’s jurisdiction, or

necessary to protect or effectuate its judgment. First, the All

Writs Act itself does not amount to an act of Congress empowering

federal courts to enjoin state-court litigation despite the AntiInjunction Act; to the contrary, “[t]he All Writs Act is limited

by the Anti-Injunction Act.” Sandpiper Vill. Condo. Ass’n v.

La.-Pac. Corp., 428 F.3d 831, 842 (9th Cir. 2005); see also Bryan

v. BellSouth Commc’ns, Inc., 492 F.3d 231, 236 (4th Cir. 2007);

In re Diet Drugs Prods. Liab. Litig., 369 F.3d 293, 305 (3d Cir.

2004). ITW and the Town do not identify any other federal

statute by which Congress has “expressly authorized” this court

to grant the relief they seek.

Second, while ITW and the Town imply otherwise--by arguing

that the sought-after injunction would be “necessary or

appropriate in aid of” this court’s jurisdiction within the

6

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 6 of 14
meaning of the All Writs Act --the “necessary in aid of its 1

jurisdiction” exception to the Anti-Injunction Act does not apply

here. As the court of appeals has observed, “[t]ypically, this

exception has been applied in either in rem proceedings, or in

cases where a state-court proceeding would interfere with ongoing

federal oversight of a case,” e.g., “school desegregation cases.” 

Garcia v. Bauza-Salas, 862 F.2d 905, 909 (1st Cir. 1988)

(citations omitted). This case does not fit into either of those

categories. As noted at the outset, this court has subjectmatter jurisdiction over the motion to enforce the settlement

because the court approved its terms in ordering the entry of

judgment in this case. But that approval did not require--nor

did this court retain--the “ongoing federal oversight” of the

sort necessary to satisfy the second exception to the AntiInjunction Act. See, e.g., Sandpiper Vill., 428 F.3d at 843-47

(ruling that an injunction against a state-court suit for damages

on a claim encompassed by a class action settlement did not

satisfy the “necessary in aid of its jurisdiction” exception,

even though the federal court had approved the settlement).

Third, the injunction ITW and the Town seek against statecourt proceedings also does not fit within the “necessary to

Because the Anti-Injunction Act bars the relief sought 1

here, the court need not decide whether the relief would be

“necessary or appropriate” under the All Writs Act.

7

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 7 of 14
protect or effectuate its judgments” exception. The Supreme

Court has observed that this so-called “relitigation exception

was designed to permit a federal court to prevent state

litigation of an issue that previously was presented to and

decided by the federal court.” Chick Kam Choo v. Exxon Corp.,

486 U.S. 140, 147 (1988). Because this exception is “founded in

the well-recognized concepts of res judicata and collateral

estoppel,” id., “an essential pre-requisite for applying the

relitigation exception is that the claims or issues which the

federal injunction insulates from litigation in state proceedings

actually have been decided by the federal court,” id. at 148.

That prerequisite has not been satisfied here. As discussed

supra, Dubrava’s state-court action raises the issue of whether

the permit for the cellphone tower is void because it was issued

in violation of New Hampshire’s open meeting law, N.H. Rev. Stat.

Ann. § 91-A:2, and similar statutory provisions. In suggesting

that this court has resolved that issue, the Town and ITW assert

that the order approving their settlement “rejected Ms. Burley’s

arguments” that the proposed agreement violated the open meeting

law. But--in language ITW and the Town ignore, apparently in the

hope that this court would neither remember nor bother to check

what it previously said--this court declined to decide whether

that “agreement to issue the required permit[] for the tower[] as

a settlement of the[] lawsuit[] is in violation of state law

8

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 8 of 14
requiring land use permits to issue only as the result of public

meetings and the like.” 2010 DNH 081, 11. The issue that would 2

be protected from relitigation by enjoining the state-court

proceedings, then, was not “actually decided” by this court. 

Indeed, it was expressly left undecided.

Furthermore, Burley did not join in the settlement that

concluded the litigation in this court, purporting to object to

it while noting that “there is no need for her claims to continue

in this forum.” Courts disagree over whether the relitigation

exception to the Anti-Injunction Act extends to claims that were

not resolved in the federal action, but could have been, or is

restricted to only those claims that were in fact “actually

decided.” Compare, e.g., W. Sys., Inc. v. Ulloa, 958 F.2d 864,

870 (9th Cir. 1992) (taking the former position), with, e.g.,

Instead, in their motion, ITW and the Town begin quoting 2

from the court’s order immediately after this language appears. 

This quotation includes the court’s discussion of Brehmer v.

Planning Bd. of Town of Wellfleet, 238 F.3d 117 (1st Cir. 2001),

on which this court relied as upholding “a district court’s

approval of a settlement agreement in a case under the TCA that

called for the issuance of ‘injunctive relief in the form of an

order requiring that the wrongfully withheld permit issue,’

despite objections that this course violated ‘the procedural

strictures of Massachusetts zoning law.’” 2010 DNH 081, 12

(quoting Brehmer, 238 F.3d at 118-21). As this language makes

clear, the court was citing Brehmer as authority for approving

the settlement of a TCA case without regard to state-law

“procedural strictures”--not as authority for ruling that those

laws did not apply to, or were not violated by, the settlement. 

Again, this court clearly stated that it “expresse[d] no views on

the merits” of the state-law arguments. Id. at 11.

9

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 9 of 14
Staffer v. Bouchard Transp. Co., 878 F.2d 638, 643 (2d Cir. 1989)

(taking the latter position). While the First Circuit has not

directly spoken on this question, it has ruled that the

resolution of a federal lawsuit by way of a stipulated agreement

among certain parties to the action does not support enjoining

state-court suits by other parties to the action who did not

enter into the stipulation. See De Cosme v. Sea Containers,

Ltd., 874 F.2d 66, 68 (1st Cir. 1989).

Even if the relitigation exception does apply to claims that

could have been brought in the federal action, however, it would

not reach any claim by Burley that issuing the permit by way of

the settlement agreement runs afoul of state law. As this court

observed in its prior order, such a claim “was not ripe until

[the Town] agreed to allow [ITW] to put up a cell tower as a

settlement of the case and therefore could not have been

asserted” before ITW and the Town reached that agreement. 2010

DNH 081, 7. And at that point, this court declined to consider

any such claim because doing so was unnecessary to approving the

settlement. Id. at 11-12. Accordingly, even under the most

expansive reading recognized in the case law, the relitigation

exception does not encompass the injunction that ITW and the Town

seek against Burley here. See De Cosme, 874 F.2d at 868.

It follows that the relitigation exception also does not

encompass the injunction that ITW and the Town seek against

10

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 10 of 14
Dubrava. It is worth noting, though, that even if there were

some basis for applying the exception and enjoining Burley from

proceeding with state-court litigation challenging the permit,

there would still be no basis for so enjoining Dubrava, because

he was never a party here. See Mar. Office of Am. Corp. v.

Vulcan MV, 921 F. Supp. 368, 371-74 (E.D. La. 1996) (refusing to

apply the relitigation exception to enjoin a state-court suit by

a non-party to the federal suit). As to both collateral estoppel

and res judicata, “the general rule” is “that one is not bound by

a judgment in personam in a litigation in which he is not

designated as a party or to which he has not been made a party by

service of process.” Taylor v. Sturgell, 553 U.S. 880, 893

(2008) (quotation marks omitted).

While this rule has a number of exceptions, the only one

that could conceivably apply here is that “a party bound by a

judgment may not avoid its preclusive force by relitigating

through a proxy.” Id. at 895. The Court has advised, though,

“that courts should be cautious about finding preclusion on this

basis. A mere whiff of tactical maneuvering will not suffice 

. . . . [P]reclusion is appropriate only if the . . . conduct of

the suit is subject to the control of the party who is bound by

the prior adjudication.” Id. at 906 (quotation marks omitted).

Here, as discussed supra, Burley has submitted a sworn

declaration attesting that she does not control Dubrava’s state11

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 11 of 14
court suit challenging the permit, and ITW and the Town have

countered only with statements--that do not appear to be

supported by personal knowledge--that Burley “solicited” Dubrava

to bring that action and that it is “to be funded” by her. Even

if taken at face value, those statements do not show that the

state-court litigation is “subject to [her] control” so as to

bind Dubrava to the judgment concluding this action even though

he was never a party to it. See Restatement (Second) of 3

Judgments § 39 cmt. c (1982) (to establish a party’s “control”

over a non-party so as to bind him to a prior judgment, “[i]t is

not sufficient . . . that the [party] merely contributed funds or

advice in support of the [non-party], [or] supplied counsel”). 

In any event, this court’s judgment does not even bind Burley, as

already discussed at length.

Finally, even if the relitigation exception applied, and

this court could enjoin Burley or Dubrava from pursuing statecourt challenges to the permit, both the Supreme Court and the

court of appeals have cautioned that “‘the fact an injunction may

issue under the Anti-Injunction Act does not mean that it must

issue.’” De Cosme, 874 F.2d at 69 (quoting Chick Kam Koo, 486

U.S. at 151). Before granting such extraordinary relief, the

federal court should consider “the equitable requirements of

They do, however, create a “whiff of tactical maneuvering,” 3

particularly because Burley does not deny them.

12

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 12 of 14
irreparable injury and inadequate remedy at law” as well as

“principles of comity and federalism.” Id.

Those considerations do not weigh in favor of issuing the

requested injunction here, even putting aside the seemingly

insurmountable bar posed by the Anti-Injunction Act. Apart from

their expressions of outrage that Burley and Dubrava are

“interfering with this court’s jurisdiction and frustrating

implementation” of the order approving the settlement, ITW and

the Town do not explain how the injunction would prevent their

irreparable injury or leave them with an inadequate remedy at

law. Indeed, if this court’s order approving the settlement

agreement does prevent Burley or Dubrava from challenging the

permit in state court, as ITW and the Town suggest, they can make

that argument to the state court, which “is as well qualified as

a federal court to protect a litigant by the doctrines of res

ajudicata [sic] and collateral estoppel.” De Cosme, 874 F.2d at

69 (quotation formatting altered). ITW and the Town have

certainly offered no reason to think otherwise.4

In fact, in another TCA case resolved by the entry of a 4

consent decree calling for the issuance of a permit for a

cellphone tower, this court recently relied on the same

considerations in denying an abutter’s request to lift the order

approving the decree to prevent the settling parties from

invoking it as a bar to a state-court action challenging the

permit. Indus. Commc’ns & Elecs., Inc. v. Town of Alton, 2010

DNH 175. The court reasoned that, if the abutters wanted to

argue over the preemptive effect of the order on their state-law

claims, they should make that argument to the state court, not

13

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 13 of 14
III. Conclusion

For the foregoing reasons, the motion by ITW and the Town

for an injunction against Burley and Dubrava is DENIED. 5

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: October 14, 2010

cc: Lawrence M. Edelman, Esq.

Robert M. Derosier, Esq.

John T. Ratigan, Esq.

Jeffrey C. Spear, Esq.

this one. Id. at 11 (citing Metheny v. Becker, 352 F.3d 458,

460-61 (1st Cir. 2003)). Naturally, just as in that case, this

court expresses no views as to the merits of any such argument.

Document no. 49. 5

14

Case 1:08-cv-00122-JL Document 52 Filed 10/14/10 Page 14 of 14