Claim Suit Zaber, J. Thomas
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.
IN THE lOW A DISTRICT COURT FOR DUBUQUE COUNTY
Defendant.
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) Case No. .
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) ORIGINAL NOTICE
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J. THOMAS ZABER, on behalf of himself
and all others similarly situated,
Plaintiff,
vs.
CITY OF DUBUQUE, IOWA,
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TO THE ABOVE-NAMED DEFENDANT: -'
You are notified that a petition has been filed in the office of the clerk of th'r~ court
naming you as the defendant in this action. A copy of the petition (and any documents filed with
it) is attached to this notice. The name of the attorney for the plaintiff is Richard A. Davidson,
220 N. Main Street, Suite 600, Davenport, Iowa 52801, telephone number 563-333-6624, fax
563-324-1616.
You must serve a motion or answer within 20 days after service of this original notice
upon you, and within a reasonable time thereafter, file your motion or answer with the Clerk of
Court for Dubuque County, at the county courthouse in Dubuque, Iowa. If you do not,judgment
by default may be rendered against you for the relief demanded in the petition.
If you require the assistance of auxiliary aids or se~ic to participate in court
because of disability, immediately call your district ADA coordi~ at5 <;j;q-I/l/IJ!S. (If you
are hearing impaired, call Relay Iowa TTY at 1-800-735-2942.)
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CLERKOF~
Dubuque County Co se
Dubuque, Iowa
IMPORT ANT: YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT
YOUR INTERESTS
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IN THE lOW A DISTRICT COURT FOR DUBUQUE COUNTY
J. THOMAS ZABER, on behalf of himself ) (;:.ASE ~....y 0 ;-?(lj;~.3
and aI'I others similarly situated, ) (
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Plaintiff,
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PETITION
Jury Demanded
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CITY OF DUBUQUE, IOWA,
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Defendant.
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COMES NOW Plaintiff, on behalf of himself and all others similarly situated, and
for his cause of action states to the Court as follows:
I. Plaintiff J. Thomas Zaber at all times material hereto was and is a resident
ofthe City of Dubuque, Iowa.
2. Defendant City of Dubuque, Iowa ("City") is a municipal corporation
located in Dubuque County, Iowa and has the powers and duties under Chapter 364, Code of
Iowa.
3. Plaintiff, at all times material hereto, was and is a customer of gas and
electric utilities and cable television services within the City.
4. City currently charges, and has for many years charged, under its franchise
agreements and ordinances, a "franchise fee" of up to 5% of the gross revenue for gas and
electric utilities and for cable television and other services to customers situated within the City.
5. Said "franchise fee," which is charged and collected by the City through
the applicable gas and electric utilities and through cable television service providers, constitutes
a tax and revenue-generating measure which has been and continues to be illegally imposed,
exacted and collected from the Plaintiff and all others similarly situated and such tax is void and
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(should be reftindyd. See Kragnes v. City of Des Moines, 714 N.W.2d 632 (Iowa 2006).
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6. Section 364.3(4) provides that a City may not levy a tax unless
specifically authorized by a State law. State law does not authorize the City to tax gas and
electric utilities or cable television service.
7. Plaintiff brings this action pursuant to Rule 1.261 et. seq. of the Iowa R.
Civ. P. as a class action for himself and as a representative of and on behalf of all others
similarly situated, to-wit: All persons or entities who have been charged for, and paid, any of the
above-described franchise fees in all years preceding the filing of this action and subsequent
thereto (the "Class" and the "Class Members").
8. Plaintiff is informed and believes that the Class Members number in the
thousands and reside throughout the City and their joinder is therefore impracticable.
9. There exist in this action questions of law and fact common to all Class
Members and the separate adjudication of these issues by each of the Class Members would be
impracticable and inefficient and would create a risk of inconsistent judgments. Therefore, a
class action should be permitted for the fair and efficient adjudication of the controversy.
10. There is nothing regarding this Class which would pose unusual
difficulties in the case management and there are no conflicts oflaw issues.
II. Plaintiff and his counsel will thoroughly and adequately represent the
interests of the Class and they do not have a conflict of interest in the maintenance of this class
action. Plaintiff and his counsel have adequate resources, pursuant to Iowa R. Civ. P. 1.276, to
prosecute this action.
12. Common questions of law and fact against the Defendant predominate
over questions, if any, affecting only individual members, and a class action is superior to other
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available methods (if any such other methods exist), for the fair and efficient adjudication of the
matters alleged herein.
13. The individual amounts at stake are insufficient to justify numerous
separate lawsuits given the expense and complexity of this action, and no Class Members who
are not representative parties have a substantial interest in controlling prosecution of separate actions.
14. Plaintiff and Class Members have no other plain, speedy, or adequate
remedy apart from this class action.
15. The injunctive relief requested herein has not been requested and denied in
any prior action against this City.
16. Plaintiff demands a trial by jury.
WHEREFORE, Plaintiff seeks relief from this Court as follows: (i) certification
of this action as a class action; (ii) a judgment against the Defendant in an amount sufficient to
fully compensate the Plaintiff and the other Class Members for the illegal tax collected by the
City during the period from the beginning of the applicable statute of limitations period through
the date of judgment, and pre-judgment interest from the time of the wrongful collection of such
illegal fees and post-judgment interest thereon as allowed by law, together with attorney fees as
allowed by law; (iii) a declaration that the franchise fees collected by the Defendant are illegal
and void; (iv) an injunction prohibiting the Defendant from enforcing and/or collecting such
franchise fees in the future; and (v) such other and further relief as the Court may deem to be
proper in the premises.
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LANE & WATERMAN LLP
Terry . Gieb stein
Iowa ttorne)l o. A T0002898
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Thomas D. Waterman
10 ttorney No. A T0008341
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'chard A. Davidson
Iowa Attorney No. ATOOOl937
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220 N. Main St., Suite 600
Davenport, IA 5280 I
Telephone: 563-324-3246
Fax: 563-324-1616
ATTORNEYS FOR PLAINTIFF
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IN THE lOW A DISTRICT COURT FOR DUBUQUE COUNTY
J. THOMAS ZABER, on behalf of himself )
and all others similarly situated, )
)
Plaintiff, )
)
vs. )
)
CITY OF DUBUQUE, IOWA, )
)
Defendant. )
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CaseNo.~ cIJ C-\JOS- L\l::b 1-
PLAINTIFF'S FIRST SET OF
INTERROGATORIES DIRECTED
TO CITY
Plaintiff, by his attorneys, Lane & Waterman LLP, and pursuant to Iowa Rule of Civil
Procedure 1.509, propounds the attached First Set of Interrogatories upon Defendant, City of
Dubuque, Iowa, to be answered under oath within thirty (30) days ofthe date of service hereof.
Pursuant to the Iowa Rules of Civil Procedure, the answers to these Interrogatories shall be
deemed continuing.
ichard A. Davidson
Iowa Attorney No. AT0001937
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LANE & WATERMAN LLP
220 N. Main St., Suite 600
Davenport,IA 52801
Telephone: 563-324-3246
Fax: 563-324-1616
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ATTORNEYS FOR PLAINTIFF
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DEFINITIONS & INSTRUCTIONS
1. These Interrogatories are continuing in nature and you are instructed to
suppIement your answers as information responsive to these Interrogatories is discovered.
2. "Identify" with respect to an individual person means to (a) state the person's
full name, current address and telephone number; (b) present or last known business position
or title and business affiliation; and (c) current business address and telephone number.
3. "Identify" with respect to a document means furnishing (a) the type of
document; (b) the title of the document; (c) the date of the document (d) the author and
addresses of the document; (e) the custodian of the document; and (f) if the document is no
longer in Plaintiffs possession or control, the disposition made of the document and the
person or persons with knowledge of the contents of the document.
4. "Document" and "documents" are used in their customary broad sense and
include any printed, typewritten, handwritten, graphic, photographic, computer based, or
recorded matter of any type and description, however and by whomever prepared, recorded,
produced, reproduced, disseminated or made, including, but not limited to, the following: all
letters, contracts, court papers, administrative agency papers, brochures, advertisements, press
releases, minutes, notes, telegrams, electronic mail, reports, charts, accountants' statements,
bank statements, books of account, ledgers, balance sheets, journals, account statements, lists,
analyses, information sheets, financial publications, order forms, business records, personal
conversations, tape recordings or transcripts of conversations of statements, meetings, or
notes, notebooks, data sheets, work sheets, recommendations, audio and videotape records,
photographs and slides, statistics, studies, written agreements, checks, receipts, invoices, bills,
reports or opinions regarding trademark searches, trademark registration, and other writings,
including computer printouts or information stored in computer memory banks or on any
tapes, disks, or other electrical or mechanical forms or devices, and any draft of carbon or
photographic copy of any of such material the content of which differs in any respect from the
original, in your actual or constructive possession, custody or control.
,
5. The terms "you" and "yours" and "City" include City of Dubuque, Iowa and its
agents or attorneys and all others persons acting on behalf of it.
6. If you claim that any documents containing information responsive to these
Interrogatories have been destroyed, or that the attorney-client privilege or any other privilege
is applicable to any document, state:
(a) the date of the document;
(b) identify each and every author of the document;
(c) identify each and every person who prepared or participated in the preparation of
this document;
(d) identify each and every person who received this document;
(e) identify each and every person from whom the document was received;
(I) the present location of the document and all copies thereof;
(g) identify each and every person having custody or control of the document and all
copies thereof; and
(h) provide sufficient further information concerning the document and the
circumstances thereof to explain the claim or privilege.
7. The term "Relevant Time Period" means the period of time from August 1, 1996
through the time of responding to discovery (induding subsequent time periods due to the
continuing nature of these Interrogatories and the requirement to supplement these discovery
responses) .
INTERROGATORY NO.1: Disclose the aggregate franchise fees collected from your
cable television franhcisee(s) in each fiscal year during the Relevant Time Period.
ANSWER:
INTERROGATORY NO.2: For each fiscal year during the Relevant Time Period,
separately describe all actions of the City in each such year to:
a. inspect the cable television franchise;
b. license the cable television franchise;
c. supervise the cable television franchise;
d. enforce the cable television franchise; and
e. otherwise regulate the cable television franchise.
ANSWER:
I
INTERROGATORY NO.3: For each fiscal year during the Relevant Time Period,
separately describe the reasonable costs incurred by the City in each such year to:
a. inspect the cable television franchise;
b. license the cable television franchise;
c. supervise the cable television franchise;
d. enforce the cable television franchise; and
e. otherwise regulate the cable television franchise.
ANSWER:
INTERROGATORY NO.4: For each fiscal year during the Relevant Time Period,
separately describe the purposes for which the cable television franchise fees have bee used by
the City, including:
a.
the dollar amount ofthe franchise fees used for inspecting, licensing, supervising,
enforcing or regulating the franchise in each such year;
b.
the dollar amount of the franchise fees used for other purposes, including to
supplement the general budget fund of the City, in each such year; and
c.
state and describe how the monies referred to in subparagraph (b) above were
used by the City, including the City funds to which the monies were directed, and,
including the particular purposes or uses for which the monies were used.
ANSWER:
INTERROGATORY NO.5: Explain in detail how the franchise fee has been
calculated during the Relevant Time Period and identifY the specific services
provided by the cable television franchisee which are subject to franchise fees and
which are not subject to franchise fees.
ANSWER:
INTERROGATORY NO.6: For each year during the Relevant Time Period, identify
by fund name and amount any distribution, allocation or use of the cable television franchise
fee to the various City funds and identify the specific uses within such funds if designated as
part of the City's budget process.
ANSWER:
INTERROGATORY NO.7: State the name and last known address of all persons
known or believed by you or anyone acting in your behalf, including counsel, investigators or
any other person, to have witnessed or have any knowledge about any of the factual allegations
contained in the Petition or your Answer to Petition, relating to either liability or damages.
For each person identified, state briefly the nature and extent of such knowledge.
ANSWER:
INTERROGATORY NO.8: Have you or anyone acting in your behalf, including
counsel, secured any kind of signed, recorded or reported statement from any person in
connection with this litigation? If so, state the following:
a. the name and current address of each person from whom a statement was
obtained;
b. the name and current address ofthe person securing each statement; and
c. the name and current address of the person now having custody or control of any
such statement or transcript thereof.
ANSWER:
I
INTERROGATORY NO.9: Identify each person whom you expect to caH, in person
or by deposition, as an expert witness at trial, and as to each person state as foHows:
a. complete name, complete business and residence address and telephone
numbers;
b. such person's occupation, vocation, and professional field, if any;
c. such person's education, extent of training and experience being certain it
identifY all schools attended, courses completed, degrees and certificates
awarded, and the date thereof;
d. complete name of each professional and technical society and association of
which said person is a member and any office now held by said person or any
office previously held by said person and the dates and times involved;
e. identifY each professional paper, book, or other recognized publication
written or edited by said person;
f. subject matter on which said person is expected to testifY;
g. the designated person's qualifications to testifY as an expert on such subject;
(Rule 1.508(1)(a)(2));
h. the substance of the facts and opinions of which each expert is expected to
testifY;
1. a summary of the basis of bases and grounds for each opinion; and
J. the mental impressions and opinions held by the expert and facts known to
the expert (regardless of when the factual information was acquired) which
relate to, or form the basis of, the mental impressions and opinions held by
the expert. (See, IRCP l.508(1)(a)(3)).
NOTE: Rule of Civil Procedure 1.508(1) also requires that for an expert retained in anticipation of litigation, or
for trial the expert shall seDaratelv SIGN the Answer. Please comply with this Rule. For each expert retained,
answer this interrogatory separately with the following acknowledgment signed.
INTERROGATORY NO.9 (CONTINUED):
I state that I, as an expen retained in anticipation of litigation or for trial, have
fully read the answer relating to me, my qualifications, my mental impressions and opinions,
and the facts known by me, and that I verify under penalty of perjury and pursuant to the laws
of the State of Iowa that the following is true and correct.
2006
Expen's Signature
Dated
ANSWER:
INTERROGATORY NO. 10: State the name and last known address of each person
whom you will call as a witness at the trial of this case. In the event no final decision has been
made as to who will be called as witnesses, you are requested to supplement this Answer from
time to time as soon as that information is known.
ANSWER:
m:\tgielbelstein\franchise fee Iitigation\zaber-dubuque litigation\interrogatories to city.doc
,
IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY
J. THOMAS ZABER, on behalf of himself )
and all others similarly situated, )
)
Plaintiff, )
)
vs. )
)
CITY OF DUBUQUE, IOWA, )
)
Defendant. )
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Case No. l~ C\J C \I 0;\1 6b J
PLAINTIFF'S FIRST SET OF
REQUESTS FOR PRODUCTION OF
DOCUMENTS DIRECTED TO
CITY
Plaintiff, by his attorneys, Lane & Waterman LLP, and pursuant to Iowa Rules of Civil
Procedure 1.512 and 1.513, requests in this First Set of Requests for Production that Defendant,
City of Dubuque, Iowa, produce and permit inspection and copying of all of the documents listed
below within thirty (30) days from the date of
T~t~~~ierman
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Richard A. Davidson
Iowa Attorney No. AT0001937
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LANE & WATERMAN LLP
220 N. Main St., Suite 600
Davenport,IA 52801
Telephone: 563-324-3246
Fax: 563-324-1616
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ATTORNEYS FOR PLAINTIFF
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INSTRUCTIONS AND DEFINITIONS
1. These Requests are continuing in nature and you are requested to supplement
your responses as documents responsive to these Requests are discovered.
2. The term "or" is used in its inclusive sense meaning either, or, or both.
3. The terms "you" and "your" and "City" includes Defendant City of Dubuque,
Iowa and its agents or attorneys and all other persons acting on behalf of it.
4. "Document" and "documents" are used in their customary broad sense and
include any printed, typewritten, handwritten, graphic, photographic, computer based, or
recorded matter of any type and description, however and by whomever prepared, recorded,
produced, reproduced, disseminated or made, including, but not limited to, the following: all
letters, contracts, court papers, administrative agency papers, brochures, advertisements, press
releases, minutes, notes, telegrams, electronic mail, reports, charts, accountants' statements,
bank statements, books of account, ledgers, balance sheets, journals, account statements, lists,
analyses, information sheets, financial publications, order forms, business records, personal
conversations, tape recordings or transcripts of conversations of statements, meetings, or
notes, notebooks, data sheets, work sheets, recommendations, audio and videotape records,
photographs and slides, statistics, studies, written agreements, checks, receipts, invoices, bills,
reports or opinions regarding trademark searches, trademark registration, and other writings,
including computer printouts or information stored in computer memory banks or on any
tapes, disks, or other electrical or mechanical forms or devices, and any draft of carbon or
photographic copy of any of such material the content of which differs in any respect from the
original, in your actual or constructive possession, custody or control.
5. If you claim that any documents containing information responsive to these
Interrogatories have been destroyed, or that the attorney-client privilege or any other privilege
is applicable to any document, state:
(a) the date of the document;
,
(b) identify each and every author of the document;
(c) identify each and every person who prepared or participated in the preparation of
this document;
(d) identify each and every person who received this document;
(e) identify each and every person from whom the document was received;
(f) the present location of the document and all copies thereof;
(g) identify each and every person having custody or control of the document and all
copies thereof; and
(h) provide sufficient further information concerning the document and the
circumstances thereof to explain the claim or privilege.
6. The term "Relevant Time Period" means the period of time from August I, 1996
through the time of responding to discovery (including subsequent time periods due to the
continuing nature of these Requests and the requirement to supplement these discovery
responses) .
,
REOUESTS FOR PRODUCTION OF DOCUMENTS
REOUEST NO.1: All franchise agreements which were in force at any time during
the "Relevant Time Period" between the City and any cable television providers.
RESPONSE:
REOUEST NO.2: The final Comprehensive Financial Reports ("CFR") for the City
covering any fiscal year contained, in whole or in part, within in the Relevant Time Period.
RESPONSE:
REOUEST NO.3: Final City budgets, as amended, for any fiscal year contained. in
whole or in part, within the Relevant Time Period.
RESPONSE:
REOUEST NO.4: All minutes of the meetings of the City Councilor of the
meetings of any committee of the City Council occurring during the Relevant Time Period
where any franchise agreement(s) with any cable television provider(s) were discussed or acted
on.
RESPONSE:
.
REOUEST NO.5: All minutes of the meetings of the City Council or of the
meetings of any committee of the City Council occurring during the Relevant Time Period
where franchise fee(s) to be assessed against the cable television provider(s) or consumers,
whether pertaining to the imposition of such fees, the amount of such fees, the calculation or
percentage of such fees, the uses to be made of such fees by the City, or any other matter
pertaining to such fees, were discussed or acted on.
RESPONSE:
REOUEST NO.6: All presentations made to, and all information distributions
(including but not limited to, handouts, information sheets, "green sheets" or the like) given to
any members of the City Council or any committee thereof pertaining to franchise
agreement(s) with cable television provider(s), franchise fees assessed against cable television
provider(s) or their customers, or any other matter pertaining to such franchise agreements or
franchise fees.
RESPONSE:
REOUEST NO.7: All documents between City and any cable television
franchisee(s) during the Relevant Time Period regarding the imposition of a franchise fee, the
amount of such fees, the calculation or percentage of such fees, the timing and manner of fee
collection, the timing and manner of fee remittance, the use to be made of such fees by the
City, or any other matter pertaining to such fees.
RESPONSE:
.
REOUEST NO.8: All documents, including, but not limited to, contracts, reports,
correspondence and bills, received by City from or sent by City to any cable television
franchise consultants, retained experts, attorneys or other similar advisors used by the City at
any time during the Relevant Time Period regarding any aspects of the City's relationship with
any cable television franchisee(s).
RESPONSE:
REOUEST NO.9: Any and all documents referred to or used in preparing your
Answers to Interrogatories propounded by Plaintiff.
RESPONSE:
REOUEST NO. 10: All tangible reports, compilations of data, communications,
correspondence, diagrams, and other documents prepared by or furnished to any expert for
their use in anticipation of their trial or deposition testimony.
RESPONSE:
REOUEST NO. 11: Any and all documents that will be used as exhibits at any
deposition or at trial.
RESPONSE:
m:\tgielbelstein\franchise fee litigation\zaber-dubuque litigation\rfp to city.doc