Courthouse News Service v. Michael Planet

Filing 42

Filed (ECF) Appellee Michael D. Planet citation of supplemental authorities. Date of service: 05/01/2013. [8612411]--[COURT UPDATE: Replaced PDF (to include cert of service), resent notice. 05/02/2013 by ASW] (RAN)

JONES DAY
3161 MICHELSON DRIVE • SUITE 800 • IRVINE, CA 92612
TELEPHONE: [phone] • FACSIMILE: [phone]

May 1, 2013
VIA CM / ECF FILING
Ms. Molly C. Dwyer, Clerk of the Court
United States Court of Appeals for the Ninth Circuit
The James R. Browning Courthouse
95 7th Street
San Francisco, California 94103
Re:

Courthouse News Service v. Planet
Case No. 11-57187

Dear Ms. Dwyer:
Appellee Michael Planet responds to Appellant Courthouse News’s April 24, 2013 Rule
28(j) letter as follows:
1.
Appellant’s reliance on Rivas v. Napolitano, 2013 U.S. App. LEXIS 6663 (9th
Cir. 2013) is misplaced. Federal courts considering FRCP 12(b)(1) jurisdictional challenges
need not assume the truth of a complaint’s allegations, Thornhill Publishing Co. v. GTE Corp.,
594 F.2d 730, 733 (9th Cir.1979), and can “resolv[e] factual disputes where necessary” prior to
trial. Augustine v. U.S., 704 F.2d 1074, 1077 (9th Cir.1983). The rule is different only when
jurisdictional and merits questions “overlap completely.” Rivas, at *8. Courts understandably
assume the truth of the complaint’s allegations when jurisdictional and merits questions
completely overlap to avoid ruling on the merits in the absence of a full record. E.g., Roberts v.
Corrothers, 812 F. 2d 1173, 1177 (9th Cir. 1987).
Rivas does not apply here because jurisdictional and merits questions do not overlap, and
because the district court abstained from deciding the merits, holding that “[i]f reasonable access
were defined to mean ‘same-day access,’ this would avoid the necessity of this Court deciding
the federal constitutional issues ….” ER 9.
2.
Appellant’s citation to NAGE v. Mulligan, 849 F. Supp. 2d 167 (D. Mass. 2012),
and Crisante v. Coats, 2012 U.S. Dist. LEXIS 53646 (M.D. Fla. 2012) also is unavailing. This
Court held in Almodovar v. Reiner, 832 F.2d 1138, 1140 (9th Cir. 1987) that “there is no
absolute rule against abstention in first amendment cases,” and that abstention may be justified
when “[t]he fears of chill that justify our preference against abstention in first amendment cases
are not present ….”

ALKHOBAR
FRANKFURT
MILAN
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MOSCOW

FRANCISCO

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BEIJING

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MUNI CH
PAULO

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BOSTON

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NEW

SHANGHAI

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BRUSSELS

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DELHI
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SILICON

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CHICAGO

JEDDAH
NEW

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YORK

VALLEY

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LONDON
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CLEVELAND
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PARI S

SINGAPORE

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COLUMBUS

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ANGELES

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PITTSBURGH

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DALLAS

MADRID
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SYDNEY

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TAIPEI

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TOKYO

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MEXICO

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SAN

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DUBAI
CITY
DI EGO

WASHINGTON

JONES DAY

Ms. Molly C. Dwyer
May 1, 2013
Page 2
3.
Dex Media West, Inc. v. City of Seattle, 696 F. 3d 952 (9th Cir. 2012)’s holding
that “yellow page” phone books qualify as protected commercial speech is inapposite. This is an
“access-to-information” and not a “freedom-of-expression” case. L.A.P.D. v. United Reporting
Publ’g Corp., 528 U.S. 32, 40 (1999).
4.
Dorsett v. County of Nassau, 2012 U.S. Dist. LEXIS 168073 (E.D.N.Y. 2012)
refused to permit press access to sealed documents on file in a settled lawsuit, and is entirely
inapposite for this reason.

9th Circuit Case Number(s) 11-57187
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

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CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
May 1, 2013
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
Signature (use "s/" format)

s/ Robert A. Naeve

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CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:

Signature (use "s/" format)