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HomeMy Public PortalAboutCase 20-cv-80948Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA TOWN OF GULF STREAM, Plaintiff, V. CASE NO. 20-cv- BELLSOUTH TELECOMMUNICATIONS, LLC d/b/a AT&T SOUTHEAST, a foreign limited liability company, Defendant. COMPLAINT Plaintiff, the TOWN OF GULF STREAM ("Town"), a municipal corporation and political subdivision of the State of Florida, by and through its undersigned counsel, hereby sues Defendant, BELLSOUTH TELECOMMUNICATIONS, LLC d/b/a AT&T SOUTHEAST ("AT&T"), a foreign limited liability company, and alleges as follows: NATURE OF ACTION 1. The Town seeks specific performance and declaratory relief to require AT&T to perform its written agreement to complete the undergrounding of its aerial facilities in the second and final phase of the Town's undergrounding project. With the project nearly complete, AT&T has refused to perform and instead demands that the Town enter into an entirely new contract at nearly Umillion more than the original contract price, which was subject only to differing site conditions or force majeure events not reasonably foreseeable at the time AT&T provided its proposed special construction charge or the time the parties agreed to that charge. 2. To promote and protect the public health, safety, and welfare, in 2015 the Town embarked on a project to convert the overhead utility service facilities of its major utilities, Florida Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 2 of 14 Power & Light Company ("FPL"), which provides electric service, and Comcast, which provides telecommunications, cable television, and broadband/internet services, to underground facilities. The Town executed underground conversion agreements with FPL and Comcast for this purpose, just as it did with AT&T. FPL and Comcast have now completed or nearly completed their work at the prices contracted upon with the Town and without reporting any materially different and non -reasonably foreseeable conditions in the field. AT&T has likewise failed to give the Town prior notice of any such conditions during the past three years. Instead, it has affirmatively represented to the Town on multiple occasions that it did not anticipate "any surprises" and that any additional conduit or hardware it deemed required would be placed at its own cost. With another hurricane season having just begun and the COVID-19 pandemic stressing the Town's residents and its finances, the Town seeks this Court's intervention to compel AT&T to finish what it started at the agreed upon price so that the Town can fully and finally complete its undergrounding project. PARTIES, JURISDICTION AND VENUE 3. The Town is and was at all times material a municipal corporation of the State of Florida and a political subdivision of the State of Florida with the power and authority to bring this action. 4. AT&T is a Georgia limited liability company that has its principal place of business in Atlanta, Georgia. AT&T is a for-profit, telecommunications utility company that conducts substantial business in the State of Florida, including in the Town of Gulf Stream, Florida. 5. On information and belief, AT&T's sole member is BellSouth, LLC; BellSouth, LLC's sole member is AT&T DataComm, LLC; AT&T DataComm, LLC's sole member is AT&T 2 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 3 of 14 DataComm Holdings, LLC; and AT&T DataComm Holdings, LLC is a Delaware limited liability company with a principal place of business in Dallas, Texas. 6. The amount in controversy exceeds the sum or value of $75,000, exclusive of interests and costs. 7. This Court has diversity jurisdiction over the Town's claims pursuant to 28 U.S.C. § 1332 because the parties are completely diverse in citizenship and the amount in controversy exceeds $75,000, exclusive of interest and costs. 8. The Court also has jurisdiction over this action pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201. 9. AT&T is engaged in substantial and not isolated activity within this state and thus subject to personal jurisdiction in this Court. Further, AT&T committed the wrongdoing alleged in the Complaint, including the alleged breach of contract, in Florida. 10. Venue is proper in this judicial district pursuant to 28 U.S.C. §§1391(b) -(d) because a substantial part of the events or omissions giving rise to the claims occurred within this district. FACTUAL ALLEGATIONS 11. As have numerous municipalities throughout the State of Florida, the Town in 2015 passed an ordinance requiring the undergrounding of all facilities for providing electrical power, telecommunications, video, cable television, internet, broadband, and similar services located within its jurisdiction. Town of Gulf Stream Code Art. VI, § 34-103 to §34-109 (the "Undergrounding Ordinance"). Absent certain exceptions, the Undergrounding Ordinance also declared that poles, overhead wires and associated overhead structures were not permitted. See id. at §34-103. 3 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 4 of 14 12. By the undergrounding project, the Town and its residents sought (1) improved safety through the elimination of the potential for downed electric lines and other hazardous conditions in the event of significant weather events, including tropical storms and hurricanes; (2) improved reliability through the installation of new upgraded utility lines and facilities, and the reduced frequency of utility service interruptions such as power outages, service failures, and fires resulting from contact with power lines; and (3) improved neighborhood aesthetics through the elimination of a heavy concentration of overhead electric lines and communication facilities. 13. The Town thereafter began a two -phased process of undergrounding its utility facilities. Phase I has since been completed (in 2016). Phase II, which includes North Ocean Blvd. south from Little Club Road to Golfview Drive and all areas west to the intracoastal waterway, began in or about the third quarter of 2016. 14. Part of the Town's obligations under its agreement with AT&T included placing conduit, handholes, and associated hardware to accommodate AT&T's installation of its underground facilities. To place the necessary hardware (conduits, handholes, etc.) for Phase II, the Town contracted with Wilco Construction, Inc. ("Wilco") 15. The Town also contracted with FPL and Comcast to place their respective electrical and cable/broadband facilities underground within the conduit and other hardware placed by Wilco. Comcast committed to underground its facilities in Phase II for approximately $160,000. 16. AT&T had previously completed the Phase I undergrounding of its telecommunications facilities for the contracted price of $161,450.38. 17. On May 20, 2016, the Town paid AT&T $25,000 to prepare a special construction quotation for AT&T's Phase II work. The parties agreed that the payment would be non - 4 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 5 of 14 refundable, but would be credited against the detailed special construction charge ultimately determined by AT&T. See Composite Exhibit "A". 18. Thereafter, on December 14, 2016, AT&T delivered its detailed, proposed special construction charge of $420,581.79 to the Town along with a proposed agreement to complete the Phase II work. 19. The Town agreed to AT&T's proposal and, on May 9, 2017, the Town executed a Special Construction Agreement ("Agreement") by which AT&T agreed to place its aerial communications facilities underground in Phase IL A true and correct copy of the Agreement is attached as Exhibit "B". See Agmt. at Exhibit 1. 20. AT&T expressly agreed to "use the conduits and handholes provided by the [Town]" and to "place additional handholes or conduits" "should the need arise." Agmt. at Ex. 21. AT&T agreed to underground its tele communications facilities in Phase Il based on a detailed special construction charge of $420,581.79, subject to change only for differing site conditions, force majeure events, or change orders requested by the Town. 22. The Town entered into the Agreement, which was heavily negotiated, having paid good consideration of $25,000 and in good faith reliance on AT&T's special construction charge for Phase II. 23. The parties agreed that should the Town initiate any changes to AT&T's scope of work under the Agreement, AT&T would provide the Town with a new special construction charge and the parties would be required to enter into a new contract. Agmt. at ¶ 16. 24. The Agreement also contains a differing site conditions provision standard to public works contracts, which would permit AT&T to charge the Town additional costs only if 5 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 6 of 14 it encountered unforeseeable conditions in the field that were materially different from the field conditions at the time AT&T provided the quote or the time that the Town executed the Agreement. Agmt. at ¶ 16. 25. The only other conditions that the parties agreed could alter the cost for the contracted work were above ground barriers and force majeure events like Acts of God and labor disputes that could not reasonably have been anticipated. Agmt. at ¶ 16. 26. The Town never initiated any changes to the scope of work to be provided by AT&T under the Agreement and, specifically, never executed any written change orders altering or expanding the scope of that work. 27. There were no conditions below the surface of the ground that AT&T could not have reasonably anticipated at the time it provided the special construction charge. 28. There were no above ground barriers that AT&T could not have reasonably anticipated at the time it provided the special construction charge. 29. There have been no Acts of God, labor disputes or any other force majeure conditions or circumstances that AT&T could not have reasonably anticipated at the time that it provided the Town the special construction charge. 30. Further, the Town never made any inaccurate representations to AT&T regarding the conditions in the held. 31. FPL completed its Phase II work installing its electrical facilities in the conduit placed by Wilco for the contracted price and without any notice to the Town of any differing site conditions necessitating unusual or extraordinary expense. C7 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 7 of 14 32. Comcast has also nearly completed its Phase II work installing its cable facilities in the conduit placed by Wilco for the contracted price and without any notice to the Town of differing site conditions necessitating unusual or extraordinary expense. 33. On information and belief, AT&T began to place its aerial facilities underground in Phase II in the spring of 2019, after Wilco had laid the conduit and placed the associated hardware, after FPL had undergrounded its electrical service utilities, and after Comcast had nearly concluded undergrounding its utilities. 34. AT&T appeared to actively perform under the Agreement for more than one year, from the spring of 2019 through the spring of 2020. During that time, AT&T never notified the Town that it had encountered site conditions in the field that it asserted were materially different from those existing when AT&T provided its proposed special construction charge or when the Town executed the Agreement and agreed to that charge, that it had encountered site conditions that purportedly necessitated any unusual or extraordinary expense, or that it had experienced any force majeure event that it claimed necessitated additional expense in performing its obligations under the Agreement. 35. Instead, on the few occasions where AT&T identified to the Town a purported need to place additional conduit, AT&T represented that that work would be done at no additional cost to the Town. 36. For example, the Town Manager raised cost concerns to AT&T in June 2019 after AT&T represented that it had to bore new conduit, ostensibly because it had not been correctly installed by Wilco. In response, AT&T's representative George Thomas (who had formulated the special construction charge) responded and clarified to the Town Manager and its Undergrounding Project Manager in July 2019 that the Town would incur no additional costs 7 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 8 of 14 under the Agreement: "You are not being charged for any deviations that we make." A copy of the e-mail correspondence with George Thomas is attached as Exhibit "C". 37. Later in the summer of 2019, Mr. Thomas's supervisor, AT&T Area Manager Anniken Patino appeared at a Town Commission meeting to provide a report. This was unusual because AT&T's management had largely declined numerous invitations to update the Town Commission on AT&T's progress. 38. When Ms. Patino appeared on August 9, 2019, she informed the Town Commission that the only cable left to place was from Golfview to Banyan in a rear easement; that AT&T expected to conclude its work with sufficient time for new service to begin prior to December 2019; and that the old overhead poles and cables would be removed in December 2019. 39. Ms. Patino did not advise the Town that AT&T had encountered any unusual field conditions or incurred or anticipated any additional costs that would alter the $420,581.79 special construction charge for Phase I1. 40. Notably, with nearly all of AT&T's facilities placed underground and only four (4) months of work remaining, Ms. Patino affirmatively represented to the Town Commission on August 9, 2019 that AT&T "didn't expect any surprises." 41. By the Commission's next meeting, on September 13, 2019, AT&T advised the Town that it had to complete 2 to 3 bores as a result of deep conduit. Again, however, AT&T represented that it was replacing that conduit at its own cost. 42. The Town thereafter understood that AT&T's Phase I1 work was nearing completion with no unanticipated issues and certainly no unexpected costs. During this entire time, i.e., from the execution of the Agreement on May 9, 2017 through and including the date 8 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 9 of 14 of filing this action, the Town never requested any changes to the scope of work under the Agreement and never requested any change orders from AT&T. From the execution of the Agreement through and including April 28, 2020, AT&T never requested any change orders or authorization to perform additional work at the Town's expense. From the execution of the Agreement until at least April 28, 2020, the Town believed and understood that AT&T was proceeding to complete the work contemplated by the Agreement; in fact, until at least April 29, 2020, Town staff and the Town's Underground Project Manager observed that work was continuing on the installation of AT&T's new underground facilities in the conduit that the Town had installed in compliance with the Agreement. 43. On or about April 29, 2020, AT&T Area Manager Juan Lucas telephoned the Town Manager ostensibly to introduce himself as Ms. Patino's successor. With the Town and its residents under emergency orders resulting from the ongoing COVID-10 pandemic, Mr. Lucas casually remarked that the cost of AT&T's work had ballooned to "well over a million dollars." No prior notice in this regard had been provided. 44. Mr. Lucas made no attempt to justify the trebling of expenditures under the parties' Agreement. He threatened to stop working by stating that AT&T would cease performing under the Agreement until the Town agreed to enter into an entirely new contract reflecting this pricing. 45. The Town Manager immediately requested that AT&T provide an actual cost analysis comparison to the agreed-upon special construction charge, as well as information on the percentage of work completed by AT&T. Mr. Lucas responded that AT&T "does not have that information ready yet." 46. When Mr. Lucas finally responded in writing to the Town Manager -- more than two weeks later, on May 20, 2020 -- he still refused to provide any detailed cost comparison to 6 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 10 of 14 the contract price. Nor did he estimate the percentage of work to be completed. This information has never been provided to the Town. 47. Mr. Lucas instead purported to summarize various instances where AT&T claims to have discovered infrastructure that "was not as agreed upon." Mr. Lucas failed to attribute any actual costs to each instance of additional work or to identify when the work was performed. He simply represented that AT&T has incurred $1,100,000 in actual costs through May and anticipates costs anywhere from $100,000-300,000 to complete the project. Included in Mr. Lucas' summary is work that AT&T affirmatively represented to the Town back in July 2019 would be completed at no additional cost. A copy of Mr. Lucas' May 20, 2020 correspondence and summary is attached as Exhibit "D". Through and including the date of this filing, AT&T has never submitted a change order request or anything identified as such. Moreover, AT&T has not provided any invoices for work that it claims to have done. 48. AT&T never gave the Town any advance notice that it would seek to recover nearly one million dollars more than the special construction charge that it proposed and to which the Town agreed for any of the work identified in Exhibit "D". Instead, for at least some of that work, AT&T affirmatively represented to the Town that it would not be charged anything additional. 49. The Agreement by its terms cannot be orally modified and the doctrine of sovereign immunity protects municipal governments like the Town from any liability for additional work performed other than pursuant to a written change order. 50. Just 10 days before the June 1 official start of hurricane season, AT&T confirmed to the Town on May 20, 2020 that its work on Phase II "is currently stopped." 10 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 11 of 14 51. All conditions precedent to this civil action have been performed, waived, or otherwise occurred. 52. The Town has enlisted the undersigned counsel to prosecute this action on its behalf. The Agreement entitles the Town to recover from AT&T all of its costs and expenses incurred in bringing this action including, but not limited to, its reasonable attorneys' fees. Agmt. at¶ 13. COUNT Breach of Contract — Specific Performance 53. The Town hereby re -alleges and incorporates the allegations of paragraphs 1 through 52. 54. The Town has performed all of its obligations under the Agreement. 55. The terms of the Agreement require AT&T to perform. 56. AT&T has materially breached the Agreement by its outright refusal to perform. 57. As a result of AT&T's breach, the Town has suffered and continues to suffer significant injury. While underground utilities reduce the risk of accidents caused by lines, which can be brought down by storms causing power outages, the Town also sought the aesthetics of a community no longer plagued by unsightly wires. 58. Because AT&T has a property interest in its facilities already placed underground in the Town and because any telecommunications or similar facilities to be placed in the conduit installed by the Town would necessarily be AT&T's property at the end of the project, the Town cannot simply engage another contractor to complete AT&T's work and then sue AT&T for the damages incurred in completing the project. The completion of AT&T's work is required to fully and finally complete Phase II and remove the remaining overhead poles, wires, and overhead accessories in the Town. Money damages therefore cannot adequately remedy AT&T's breaches. Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 12 of 14 59. To the extent that AT&T asserts that it is entitled to any additional compensation under the differing site conditions provision of the Agreement, AT&T must continue to perform according to the terms of the Agreement until that differing site conditions dispute is settled. 60. Failure to order AT&T to specifically perform under the Agreement would cause the Town unreasonable hardship by, among other things, maintaining overhead wooden poles that constitute a safety hazard to the Town. WHEREFORE, Plaintiff, Town of Gulf Stream, prays that this Court will enter judgment in its favor, compelling AT&T to specifically perform under the Agreement for the agreed upon special construction charge, awarding the Town all of its costs and expenses (including its reasonable attorneys' fees), and granting the Town such additional relief as the Court deems just and appropriate under the circumstances. COUNT II Declaratory Judgment Pursuant to 28 U.S.C. § 2201 61. The Town hereby re -alleges and incorporates the allegations of paragraphs 1 through 52. 62. The Town seeks a judicial determination of the rights and obligations of the parties under the Agreement pursuant to 28 U.S.C. § 2201. 63. There is a real, immediate and continuing controversy between the Town and AT&T. Specifically, AT&T claims that it is entitled to cease undergrounding its communications facilities in the Town and otherwise performing under the Agreement until and unless the Town enters into a new contract committing the Town to pay AT&T $1,060,000 for work already performed and agreeing to pay AT&T an additional $100,000-$300,000 over and above its claim for $1,060,000 to complete the project. 12 Case 9:20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 13 of 14 64. The Town denies, refutes and rejects AT&T's claim and maintains that all of the work identified by AT&T in Exhibit D and for which it seeks additional compensation was or should have been either: (a) reasonably foreseeable or fully known or knowable by AT&T at the time that it provided and the Town agreed to the special construction charge; (b) not incurred as the result of any alleged differing site conditions; (c) unnecessarily incurred; or (d) extra- contractual work undertaken by AT&T without any notice given to the Town or written authorization from the Town. 65. There exists a bona fide dispute between the parties which requires an actual and present need for a judicial declaration. 66. The requested judicial declaration will deal with a present, ascertained or ascertainable state of facts or with a present controversy as to a state of facts. 67. The antagonistic and adverse interests are all before this Court and the relief sought is not merely the giving of legal advice by the courts or the answers to questions propounded by curiosity. 68. The Town has suffered actual and/or threatened injury as a result of AT&T refusing to complete the undergrounding project. WHEREFORE, the Town prays that this Court will declare and adjudge the following: a. That AT&T has no right to unilaterally modify the terms of the Agreement or to insist that the Town enter into a new Agreement. b. That AT&T encountered no differing site conditions or any force majeure events that would entitle it to any additional compensation under the Agreement. 13 Case 9.20-cv-80948-XXXX Document 1 Entered on FLSD Docket 06/15/2020 Page 14 of 14 c. That the doctrine of sovereign immunity precludes AT&T from recovering for any extra -contractual work undertaken by AT&T without a written change order or other written authorization from the Town. d. That this Court award the Town the costs and expenses, including reasonable attorneys' fees, that it has incurred in prosecuting this declaratory action. e. That this Court award the Town such further and additional relief as it deems just and appropriate under the circumstances. DEMAND FOR JURY TRIAL The Town of Gulf Stream demands a jury trial on all issues to which it is so entitled. P:\DOCS\13147\00094\PLD\20F5689. DOCX JONES FOSTER P.A. Attorneys for Plaintiff 505 South Flagler Drive, Suite 1100 West Palm Beach, FL 33401 Telephone: 561-659-3000 Fax: 561-650-5300 By: /s/ Joanne M. O'Connor Scott G. Hawkins Florida Bar No. 0460117 shawkinsAjonesfoster.com Joanne M. O'Connor Florida Bar No. 498807 joconnor(crJonesfoster.com Michael J. Gore, Esq. Fla. Bar No.: 71886 mgoreAionesfoster.com 14 Case 9:20-cv-80948-XXXX Document 1-1 Entered on FLSD Docket 06/15/2020 Page 1 of 3 EXHIBIT "A" Case 9:20-cv-80948-XXXX Document 1-1 Entered on FLSD Docket 06/15/2020 Page 2 of 3 at&t 05/09'2016 The Town of GutfStrearn 100 Sea Road Gulfstream, FL 33423 RE. GulfStream Phase 2 Undergrounding Mayor Scott Morgan: TOWN OF GULF STREAM ► PAYMENT APPROVED 4 Amount Do By Date S ' Check #_ SD Date . AT& T has received a request from you (or your company) to perform the following work,- Place ork: Place aerial facilities in the Town of GullStream underground Special construction charges apply to your request. A quotation preparation charge of $25,000 must be paid in advance to AT&T Florida to offset the expenditures incurred for providing the estimated detailed special construction quotation. After this payment is received, we will proceed with developing the detailed quotation charge for the special construction associated with your request. After the quotation preparation payment has been received and the detailed special construction charge has been developed, a contract with this information will be provided to you for your approval. Once the agreement to pay the special construction charge is confirmed by returning the original signed contract, AT&T will schedule the work to meet your request. You will be credited the quotation preparation payment against the detailed special construction charge This quotation preparation payment is non-refundable and must be received in the Manager Bill Center at the address shown below before AT&T Florida will proceed with detailed pricing. If t can be of further assistance, please do not hesitate to contact me at 561-988-6506 Sincerely, j41 Outside Plant Engineer Contact Information Printed Name George Thomas Title Mngr-OSP engg & dsgn Company AT&T Ronda Project # A00DG f 0 Service Order NIA Return this letter and payment to the address below. This letter must accompany the payment in order for the Engineer shown above to be notified to begin development of the detailed costs for your work request. AT&T CWO Coordinator 1876 Data Drive 51" Floor North Attention: Susan Rinehart (Contact.susan.rinehart@att.com) Hoover, AL 35244 1 r 7 co O c Ci 'U LJ^i LL;�[r c. • w LL a = F II Z j vi Q I U RS 0 u_ 0 Q W C %�— O Q '1 CL O Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 1 of 6 EXHIBIT "B" Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 2 of 6 aW 1211412016 Town of Gulfstream 100 Sea Road Gulfstream, FL 33423 RE: Phase 11 underground work in the Town of Gulfstream: AT&T has received a request from you (or your company) to perform the following work: Place all ATT aerial facilities along N Ocean Blvd between Little Club Rd and Golfview Dr and west to the intracoastal underground -$420,581.79 of Special construction charges apply. Engineering and Construction will not begin until the attached contract is signed by you or your authorized agent. The original signed contract must be received at the AT&T Southeast office address shown below before AT&T will proceed with any work. This quote is only valid for 60 days from the date of this letter. If I can be of further assistance, please do not hesitate to contact me at 561-988-6506. Sinc el , George Thomas 561-988-6506 ATT Southeast Project # AOODC10 Job Authority # 8E837290A NOTE: Please associate the Project # above with the check or other form of payment Return the original signed contract to: ATT Southeast 321 SE 2nd Street Delray Beach,FL 33483 Attention: George Thomas- 2nd FLR Payment in full is required within thirty days after the date of the AT&T invoice for the charges associated with: the work performed. Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 3 of 6 at&t SPECIAL CONSTRUCTION AGREEMENT Project #: AOODCI O Authority: BE837290A AT&T Contact: George Thomas Telephone #: 561-988-6506 Customer Name: Town of Gulfstream Customer Number: 561-276-5116 Work Site Address: N/A This Special Construction Agreement ("Agreement") is entered into by and between BellSouth Telecommunications, LLC. d/b/a AT&T Southeast ("AT&T") and Town of Gulfstream ("Customer"). AT&T and Customer hereby agree to the following terms and conditions: 1 Tarifis/GuidebooIvs. This Agreement is subject to and controlled by the provisions of AT&T's tariffs/guidebooks as applicable and all such revisions to said documents as may be made from time to time. 2. Special Construction. This Agreement is for the special construction as further described on Exhibit 1, attached hereto and incorporated herein by this reference ("Special Construction"). Payment in full is required within thirty days after AT&T issues an invoice to the Customer for the Special Construction Charges. Early Termination. Should Customer terminate or cancel this Agreement prior to the completion of construction, Customer shall remain liable for the Special Construction Charges. Customer acknowledges and agrees AT&T shall incur substantial up -front costs in connection with its performance under this Agreement and that damages in the event of such early termination or cancellation are not readily ascertainable and that in such event of early termination payment of the Special Construction Charges is reasonable. Customer further acknowledges and agrees that it hereby waives any right to contest such payment of the Special Construction Charges for any reason, including, but not limited to reasonableness of the charges, quality of the work, or timeliness of the work. 4. Limitation of Liability. AT&T's maximum liability arising in, out of or in any way connected to this Agreement shall be as set forth in the tariffs and/or guidebooks, if and as may be applicable, and in no event shall exceed Special Construction Charges paid by Customer to AT&T. 5. Severability. Any provision of this Agreement held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and the effect thereof shall be confined to the provision so held to be invalid or unenforceable. 6. Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 7. Counterparts. This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument. 8. Effect of Waiver. No consent or waiver, express or implied shall be deemed a consent to or waiver of any other breach of the same or any other covenant, condition or duty. 9. Headings. The headings, captions, and arrangements used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 4 of 6 a t M 10. Modification. This Agreement constitutes the entire agreement between the parties and can only be changed in a writing or writings executed by both of the parties. Each of the parties forever waives all right to assert that this Agreement was the result of a mistake in law or fact. 11. Interpretation. The parties agree that this Agreement shall not be interpreted in favor or against either any party. The parties further agree that they entered into this Agreement after conferring with legal counsel, or after having a reasonable opportunity to confer with legal counsel. 12. Applicable Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of __ Florida_ ____, without regard to __Florida_________Is conflict of law principles. 13. Attorneys' fees. If either party materially breaches this Agreement and should the non - breaching party seek to enforce it rights through legal action, the prevailing party shall recover from the other party all costs and expenses incurred, including, but not limited to, reasonable attorneys' fees. 14. Authority. The signatories to this Agreement represent and warrant that they are duly authorized to execute this Agreement. 15. No Precedent. Except for the matters resolved and released herein, this Agreement is of no value and shall not be considered precedent for resolving any dispute that may arise in the future. 16. Changes in Scope of Work. The parties recognize that this is an 'Actual Cost' contract. A preliminary cost estimate has been provided. If the Customer initiates changes in the scope of the work after AT&T has provided this cost estimate or after executing this contract, the above cost estimate and this contract are null and void. A new cost estimate must be provided based on the new scope of work and a new contract entered. Additionally, in the event there exists a condition in the field that is different from the field conditions that existed at the time AT&T provided the quote or from the time the Customer executes the contract, AT&T shall bill and Customer shall pay any additional cost. Field conditions that may alter the cost associated with this work include, but are not limited to, conditions that exist below the surface of the ground and could not have been anticipated at the time of the price quote, above ground barriers, Acts of God affecting the progress or sequencing of the work, labor disputes and other conditions or circumstances that AT&T could not have reasonably anticipated at the time the cost estimate was provided. 17. Final Agreement. THIS AGREEMENT REPRESENTS THE ENTIRE AND FINAL EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES; THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AGREEMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BOTH PARTIES. Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 5 of 6 at&t IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representative on the dates set forth below. This quote is only valid for 60 days from the date of this letter. CUSTOMER By Scott Morgan Printed Name By A orized Signatu e Title Mayor Date -dl /I AT&T Southeast By George Thomas Printed Name akx��? By Authorized Signature Title Mngr-OSP Engg & Dsgn Date 12/14/2016 Case 9:20-cv-80948-XXXX Document 1-2 Entered on FLSD Docket 06/15/2020 Page 6 of 6 at&t EXHIBIT 1 DESCRIPTION OF SPECIAL CONSTRUCTION ATT to place underground its aerial facilities in phase II of the underground work in the Town of Gulfstream. The area included in phase II is N Ocean Blvd south from Little Club Rd to Golfview Dr and all areas west of this boundry to the intracoastal waterway. ATT will use the conduits and handholes provided by the customer to accomplish this and should the need arise place additional handholes or conduits. Case 9:20-cv-80948-XXXX Document 1-3 Entered on FLSD Docket 06/15/2020 Page 1 of 4 EXHIBIT "C" Case 9:20-cv-80948-XXXX Document 1-3 Entered on FLSD Docket 06/15/2020 Page 2 of 4 Gregory Dunham From: Gregory Dunham Sent: Monday, July 8, 2019 3:01 PM To: THOMAS, GEORGE Subject: RE: Gulf Stream status Good Afternoon George, Can you give me an update at your progress? The last time I talked to you, you told me that some of the conduit was installed too low and that ATT would have to modify that conduit in those areas. Has that started? I have a Commission meeting in the morning during which I would like to update the Town Commission on the status of ATT's work. Please either Email me or call me at 561-314-5021. Thanks, Greg Dunham From: THOMAS, GEORGE [mailto:gt5193@att.com] Sent: Tuesday, June 25, 2019 10:38 AM To: Danny Brannon <dbrannon@bngengineers.com>; Greg Dunham <GDunham@gulf-stream.org> Subject: RE: Gulf Stream Meeting Danny You are not being charged for any deviations that we make. There is a crossing needed for 3421 N Ocean Blvd that is not in place. Thanks. From: Danny Brannon <dbrannon@bngengineers.com> Sent: Monday, June 17, 2019 11:08 AM To: Greg Dunham <GDunham@gulf-stream.org>; THOMAS, GEORGE <gt5193@att.com> Subject: RE: Gulf Stream Meeting George, if you change your plan, do not charge us for the extra costs for your changes. Danny Brannon, P.E. Brannon & Gillespie, i.ix Consulting Engineers 631 US Highway One, Suite 301 North Palm Beach, Florida 33408 Off: (561) 847-4435 Cell: (561) 307-9454 Website: w%NNv.BnGEngineers..com From: Greg Dunham [mailto:GDunham gulf-stream.org] Sent: Tuesday, June 11, 2019 10:16 AM To: THOMAS, GEORGE Case 9:20-cv-80948-XXXX Document 1-3 Entered on FLSD Docket 06/15/2020 Page 3 of 4 Cc: Danny Brannon Subject: RE: Gulf Stream Meeting Good Morning George, I just spoke to Greg Kessell who told me that AT&T will have to bore new conduit on a section of the undergrounding because the conduit was not installed in the correct location. The area in question is on Gulf Stream Road between Golfview Drive and Middle Road. Danny Brannon told me that the homes on the east side of Gulf Stream Road are supposed to be fed from A1A and that the homes on the west side of Gulf Stream Road are supposed to be fed from the rear easement. I need some clarity on this. Can you please call me at 561-276-5116 (office) or 561-314-5021 (cell). Thank you, Greg Dunham From: Greg Dunham Sent: Thursday, April 11, 2019 9:40 AM To:'THOMAS, GEORGE' <gt5193@att.com> Subject: RE: Gulf Stream Meeting Good morning George, I would like to sit down with you to discuss ATT's preparations to begin pulling your lines as part of Gulf Stream's undergrounding project. Could you please contact Renee Basel in our office at 561-276-5116, to schedule a good time. Thanks, Greg Dunham From: THOMAS, GEORGE [mailto:gt5193@att.com] Sent: Friday, January 11, 2019 8:01 AM To: Greg Dunham <GDunham@gulf-stream.org> Cc: Danny Brannon <dbrannon@bngengineers.com> Subject: RE: Gulf Stream Meeting Gregory, Good morning, I am not able to make that Thursday meeting . I would be available for Friday morning 9 or 10 am From: Greg Dunham <GDunham@gulf-stream.org> Sent: Thursday, January 10, 2019 2:47 PM To: THOMAS, GEORGE <gt5193@att.com> Cc: Danny Brannon <dbrannon@bngengineers.com> Subject: Gulf Stream Meeting Good afternoon George: I am trying to set up a meeting with you and Danny Brannon regarding the Gulf Stream undergrounding project. We were wondering if you could attend a meeting on Thursday, January 17, 2019, at 2:00 pm at the Gulf Stream town hall? Best regards, G r -ogo, y L. 7wri ha +zti, Tow►ti M a4vtcy� Town of Gulf Stream Case 9:20-cv-80948-XXXX Document 1-3 Entered on FLSD Docket 06/15/2020 Page 4 of 4 100 Sea Rd., Gulf Stream, FL 33483 Ph: 561-276-5116 Fax: 561-737-0188 Email: gdunham@gulf-stream.org Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s). If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. Florida has a very broad public records law. Written communications regarding Town of Gulf Stream business are public records available to the public upon request. Your e-mail communications are therefore subject to public disclosure. Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 1 of 5 EXHIBIT "D" Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 2 of 5 Macfarlane, Mary T. From: LUCAS, JUAN <jl4305@att.com> Sent: Wednesday, May 20, 2020 4:26 PM To: Gregory Dunham Subject: AT&T Undergrounding Project Town of Gulfstream Attachments: Summary-5-20-2020.docx [NOTICE: This message originated outside of the Town of Gulfstream -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.] Mr. Dunham, Good evening. I hope all is well. As a follow-up to our conversations. The attached summary has the following information: • What has transpired during the construction of the AT&T undergrounding project that has caused the increase in cost • The actual cost to date • A very rough estimate of cost to complete the remaining work • The work required to complete the project • A general map of the area the project covers As previously explained the project is currently stopped. Please advise if the Town of Gulfstream is in agreement on paying the current actual costs and will be paying the difference to complete the project. Thank you. Juan M. Lucas Area Mgr OSP PLNG & ENG DESIGN SE Wireline Access Construction & Engineering — South Palm Beach AT&T 321 SE 2nd ST, Delray Beach FL, 33483 m 561.955.0476 1 014305@att.com MOBILIZING YOUR WORLD All correspondence and coordination herein is with regards to BellSouth Telecommunications, LLC d/b/a AT&T Florida (ATT -D) which is not responsible for facilities owned and managed by AT&T Corp (ATT -T). Any questions with regards to ATT -T facilities should be addressed to Inquiries@pea-inc.net. "This email and any attachments are confidential AT&T property intended solely for the use of the recipients. If you received this message in error, please notify me and immediately delete this message from your computer. Any retention, distribution or other use of this email is strictly prohibited." Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 3 of 5 As work is performed, AT&T construction is discovering infrastructure placed by the Town of Gulfstream contractor was not as agreed upon. 1. A1A/Ocean Blvd: The conduit placed from South to North on the West side of A1A was not placed as required. AT&T had to dig 13 pits in attempts to find the conduit. At the locations where the conduit ends were accessible, AT&T had to trench back to existing terminal locations to cutover new terminals. This resulted in 9 new sections of cable, totaling 1,880ft of additional copper cable with 9 additional driveway/roadway crossings. Additional work required: Also 3 A1A conduit crossings were not provided between Lakeview Dr and Sea Rd. This work has not been completed and will require an additional 3 sections of cable and associated bores. The estimated added cable requirement of 1,145ft of copper cable and associated bores will be required. The removal of the aerial cable and associated terminals will be completed once all bores and cable placement are complete in this section. 2. SW Corner of Golfview Dr and AlA: Conduit placed by the Town's contractor had to be exposed approximately 50ft in order to access the cable and take it to the existing splice location. This was needed to cutover the old cable to the new cable. 3. From the SW corner of Golfview Dr and A1A, heading West towards Gulfstream Rd: The conduit placed by the Town's contractor along the South side of Golfview Dr was placed short approximately 30ft - 50ft of where it was needed. AT&T had to bury this section. 4. From the AT&T box at Golfview Dr and Gulfstream Rd, heading West: The conduit placed by the Town's contractor along the South side of Golfview Dr was placed to an unusable location. A new conduit had to be placed 150ft to a splice pick up point. 5. Alley: From the South side of Golfview Dr, heading North to Old School Rd approximately 1,800ft (see Map below) The conduit placed by the Town's contractor couldn't be used. AT&T placed the new cable from end to end in the conduit but wasn't able to access splice points for the terminals to cutover in between the ends of the conduit run. AT&T had to remove the cables from the contractor's conduit, then create a new crossings for Golfview Dr, Middle Rd, Lakeview Dr, and Banyan Rd. Besides the added crossings, AT&T had to direct bury the entire remaining distance of the alley. Several pits were dug in an attempt to access the conduit placed by the Town's contractor. 6. County Rd: Additional Flagmen were required by the Town for maintenance of traffic which resulted in added costs. Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 4 of 5 7. Lakeview Dr and Oleander Way: The conduit placed by the Town's contractor was not placed as expected. It was placed on the East side of Oleander Way when it was to cross Oleander Way from East to West then head North along Oleander Way to an existing terminal. From this point it was to cross from West to East to the last terminal along this section. Additional work required in this section: AT&T to cross Oleander from East to West, place approximately 300ft of copper cable to anew terminal. Actual Costs through May $1,060,000 Expected cost to complete the project $100,000 - $300,000 Work left to complete entire project: 1) As noted above: a. East side of A1A between Lakeview Dr and Sea Rd b. Oleander way 2) Splicing along the west side of A1A 3) Splice work at the SW intersection of Golfview Dr and A1A 4) Crossing at Old School Rd from Alley South to North 5) Bermuda Ln cable and terminal placement 6) Complete cutover of new terminals at various locations 7) Wrecking of aerial cable east of Polo Dr 8) Removal of AT&T poles and associated materials Case 9:20-cv-80948-XXXX Document 1-4 Entered on FLSD Docket 06/15/2020 Page 5 of 5 LI TILE CLUB RD SEA RD Nr L(]LD SCH�►OL RD BANYAN Rn a 0 Q a ae.. LU ; ' PALM WAY MI 00L -E RD L.AKEVI EW DR G JLF V l EW OR JS 44 (Rev. Qa$e&2,QsiBB67e.Q948-XXXX DocumCIVIE CIDWRSUFM1SD Docket 06/15/2020 Page 1 of 2 The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of Initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) NOTICE: Attorneys MUST Indicate All Re -filed Cases Below. I. (a) PLAINTIFFS TOWN OF GULF STREAM DEFENDANTS BELLSOUTH TELECOMMUNICATIONS LLC (b) County of Residence of First Listed Plaintiff Palm Beach (EXCEPT IN U.S. PLAINTIFF CASES) (C) Attorneys (Firm Name, Address, and Telephone Number) Jones Foster P.A., 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33401; 561-659-3000 d/b/a AT&T SOUTHEAST, a foreign limited County of Residence of First Listed Defendant Fulton (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (IfKnown) (d)Check County Where Action Arose: ❑ MIAMI- DADE ❑ MONROE ❑ BROWARD If PALM BEACH 0 MARTIN 13 ST. LUCIE 0INDIAN RIVER ❑ OKEECHOBEE ❑ HIGHLANDS II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Boxfor Plaintiff Liability ❑ 367 Health Care/ (For Diversity Cases Only) and One Box for Defendant) ❑ 1 U.S. Government ❑ 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 01 ❑ 1 Incorporated or Principal Place ❑ 4 [1 4 & Enforcement of Judgment Slander of Business In This State ❑ 2 U.S. Government R]4 Diversity Citizen of Another State ❑ 2 2 Incorporated and Principal Place ❑ 5 ❑ 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State ❑ 450 Commerce ❑ 152 Recovery of Defaulted Citizen or Subject of a ❑ 3 ❑ 3 Foreign Nation ❑ 6 ❑ 6 ❑ 368 Asbestos Personal ❑ 835 Patent - Abbreviated New Drug Application Foreign Country IV. NATURE OF SUIT (Place an "X" in One Box Only) Click here for: Nature of Suit Code Descriptions CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES ❑ 110 Insurance PERSONAL INJURY PERSONAL INJURY ❑ 625 Drug Related Seizure ❑ 422 Appeal 28 USC 158 ❑ 375 False Claims Act ❑ 120 Marine ❑ 310 Airplane ❑ 365 Personal Injury - of Property 21 USC 881 ❑ 423 Withdrawal ❑ 376 Qui Tam (31 USC ❑ 130 Miller Act ❑ 315 Airplane Product Product Liability ❑ 690 Other 28 USC 157 3729 (a)) ❑ 140 Negotiable Instrument Liability ❑ 367 Health Care/ ❑ 400 State Reapportionment ❑ 150 Recovery of Overpayment ❑ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ❑ 410 Antitrust & Enforcement of Judgment Slander Personal Injury ❑ 820 Copyrights ❑ 430 Banks and Banking ❑ 151 Medicare Act ❑ 330 Federal Employers' Product Liability ❑ 830 Patent ❑ 450 Commerce ❑ 152 Recovery of Defaulted Liability ❑ 368 Asbestos Personal ❑ 835 Patent - Abbreviated New Drug Application ❑ 460 Deportation Student Loans ❑ 340 Marine Injury Product ❑ 840 Trademark ❑ 470 Racketeer Influenced and (Excl. Veterans) ❑ 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations ❑ 153 Recovery of Overpayment Liability PERSONAL PROPERTY [17 10 Fair Labor Standards ❑ 861 HIA (13956) ❑ 480 Consumer Credit of Veteran's Benefits ❑ 350 Motor Vehicle ❑ 370 Other Fraud Act ❑ 862 Black Lung (923) ❑ 490 Cable/Sat TV ❑ 160 Stockholders' Suits ❑ 355 Motor Vehicle ❑ 371 Truth in Lending ❑ 720 Labor/Mgmt. Relations ❑ 863 DIWC/DIW W (405(g)) ❑ 850 Securities/Commodities/ ® 190 Other Contract Product Liability ❑ 380 Other Personal ❑ 740 Railway Labor Act ❑ 864 SSID Title XVI Exchange ❑ 195 Contract Product Liability ❑ 360 Other Personal Property Damage ❑ 751 Family and Medical ❑ 865 RSI (405(g)) ❑ 890 Other Statutory Actions ❑ 196 Franchise Injury ❑ 385 Property Damage Leave Act ❑ 891 Agricultural Acts ❑ 362 Personal Injury - Product Liability ❑ 790 Other Labor Litigation ❑ 893 Environmental Matters Med. Malpractice ❑ 791 Empl. Ret. Inc. ❑ 895 Freedom of Information REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Security Act FEDERAL TAX SUITS Act ❑ 210 Land Condemnation ❑ 440 Other Civil Rights Habeas Corpus: ❑ 870 Taxes (U.S. Plaintiff ❑ 896 Arbitration ❑ 220 Foreclosure ❑ 441 Voting ❑ 463 Alien Detainee or Defendant) ❑ 899 Administrative Procedure ❑ 230 Rent Lease & Ejectment ❑ 442 Employment ❑ 510 Motions to Vacate Sentence ❑ 871 IRS—Third Party 26 USC 7609 Act/Review or Appeal of ❑ 240 Torts to Land ❑ 443 Housing/ Accommodations Other: Agency Decision ❑ 245 Tort Product Liability ❑ 445 Amer. w/Disabilities - ❑ 530 General IMMIGRATION ❑ 950 Constitutionality of State Statutes ❑ 290 All Other Real Property Employment ❑ 535 Death Penalty ❑ 462 Naturalization Application ❑ 446 Amer. w/Disabilities - ❑ 540 Mandamus & Other ❑ 465 Other Immigration Other ❑ 550 Civil Rights Actions ❑ 448 Education ❑ 555 Prison Condition 560 Civil Detainee - ❑ Conditions of Confinement V. ORIGIN (Place an "X" in One Box Only) ❑ 46 1 Original 2 Removed 3 Re -filed g' ❑ ❑ ❑ Proceeding from State (See VI 4 Reinstated 5 Transferred from 6 Multidistrict or ❑ another district Liti anon 7 ❑ Appeal to ❑ 8 Multidistrict Remanded from ❑� Court below) sect Transfer Reopened (specify) District Judge Liti anon Appellate Court g PP Direct from Magistrate Judgment - File VI. RELATED/ (See instructions): a) Re -filed Case ❑YES 46 NO b) Related Cases ❑YES 6 NO RE -FILED CASE(S) JUDGE: DOCKET NUMBER: Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not citejurisdictional statutes unless diversity): VII. CAUSE OF ACTION 28 U.S.C. 1332 diversity suit for breach of contract and declaratory judgment, 28 U.S.C. 2201. LENGTH OF TRIAL via 4 days estimated (for both sides to try entire case) VIII. REQUESTED IN ❑ CHECK IF THIS IS A CLASS ACTION DEMANDS CHECK YES only if demanded in complaint: COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: vl� Yes ❑ No ABOVE INFORMATION IS TRUE & CORRECT TO THE BEST OF MY KNOWLEDGE DATE SIGNATURE OF ATTORNEY OF RECORD June 15, 2020 FOR OFFICE USE ONLY RECEIPT # AMOUNT IFP JUDGE MAG JUDGE Case 9:20-cv-80948-XXXX Document 1-5 Entered on FLSD Docket 06/15/2020 Page 2 of 2 JS 44 (Rev. 06/17) FLSD Revised 06/01/2017 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs -Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". 1I. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an"X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions. V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Refiled (3) Attach copy of Order for Dismissal of Previous case. Also complete VI. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision. Remanded from Appellate Court. (8) Check this box if remanded from Appellate Court. VI. Related/Refiled Cases. This section of the JS 44 is used to reference related pending cases or re -filed cases. Insert the docket numbers and the corresponding judges name for such cases. VII. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VIII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. Date and Attorney Signature. Date and sign the civil cover sheet.