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DISH Network Not Entitled to ‘Mulligan’ in Rights-of-Way Fee Dispute, Plaintiff Says of Motion for Reconsideration

A city with arcs drawn representing connectedness.

The Village of Shiloh, Illinois said the court should not entertain DISH Network’s motion for reconsideration of its order granting remand to state court, in a filing submitted last Thursday. According to the opposition, DISH and the other defendants, businesses that offer video streaming services to Shiloh residents like Hulu and Netflix, made a strategic decision to oppose remand rather than ask the court to consolidate the suit with another nearly identical federal court proceeding as they now do.

Judge Mark A. Beatty’s late March opinion found that the principles of comity necessitated the case’s return to state court. Though the court never reached the merits, the plaintiffs purport that under an Illinois law the defendants are responsible to the municipality and the putative class of other local Illinois governments for fees associated with their use of public rights-of-way.

In Shiloh’s suit, the court granted remand, despite the chance for redundancy with the federal proceeding. DISH filed a motion for reconsideration, pleading with the court to give it the chance to move for a stay and consolidation with the federal case.

Now, Shiloh says that DISH is asking for an unfair do-over. Its motion is not a properly laid motion for reconsideration, the plaintiffs says, pointing out that DISH does not contend the court made an error of law or that there has been an intervening change in the law.

Lastly, the municipality asserts that all defendants have waived their right to move for a stay and consolidation because moved to dismiss, curtailing their right to ask for an alternative remedy.

The Village of Shiloh is represented by Despres, Schwartz & Geoghegan Ltd. and DISH Network by Steptoe & Johnson LLP, Cross Castle PLLC, and Armstrong Teasdale LLP.

The case is like others being tested around the country. Most recently, a California state court rejected a California’s city’s bid for a second and final time on the basis that the law, directed at traditional cable programming providers, was clearly inapplicable to defendants Netflix and Hulu.

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