Mitchell Engineering v. City and County of San Francisco et al

Filing 326

NOTICE TO COUNSEL RE INSTRUCTIONS (SI, COURT STAFF) (Filed on 9/27/2010)

Mitchell Engineering v. City and County of San Francisco et al

Doc. 326

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

MITCHELL ENGINEERING, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendant. /

No. C 08-04022 SI NOTICE TO COUNSEL RE INSTRUCTIONS

Having reviewed the evidence presented at trial and the instructions presented by the parties, the Court has concluded that it should not instruct separately on the question of procedural due process. Plaintiff's claim is that defendants' termination of plaintiff's Central Pump contract was done in deliberate retaliation for plaintiff's First Amendment activities. Plaintiff contends that the termination had the consequence both of ending the contract and of effectively debarring him from public contracting in San Francisco, by operation of the newly-enacted prequalification ordinances. It has neither been asserted nor proved that the prequalification ordinance was improperly enacted, or that such ordinances, in the abstract, violate any procedural due process requirements. Rather, plaintiff's theory has been that the existence of the ordinance exacerbated the consequences of the allegedly retaliatory contract termination. Neither plaintiff nor defendant has provided the Court with any coherent instruction governing the procedural due process claims, and this appears to be because the claim is better subsumed under the general retaliation rubric. If defendants were not acting in retaliation, as plaintiff contends, then any collateral due process claim would fail; conversely, if defendants did act in retaliation, plaintiff would

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be free to claim damages related to the constructive debarment theory. The Court will discuss this matter with counsel at the instruction conference tomorrow.

Dated: September 27, 2010 _________________________________ SUSAN ILLSTON United States District Judge

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