Stevenson et al v. City and County of San Francisco et al

Filing 150

ORDER AFFORDING PLAINTIFFS LEAVE TO FILE SURREPLY RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Plaintiffs are afforded leave to file, no later than December 18, 2015, a surreply, limited to five pages in length, exclusive of exhibits. As of December 18, 2015, unless the parties are otherwise advised, the Court will take defendants' motion under submission. Signed by Judge Maxine M. Chesney on December 10, 2015. (mmclc1, COURT STAFF) (Filed on 12/10/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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AARON C. STEVENSON, et al.,

No. C-11-4950 MMC

Plaintiffs,

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ORDER AFFORDING PLAINTIFFS
LEAVE TO FILE SURREPLY RE:
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

v.
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THE CITY AND COUNTY OF SAN
FRANCISCO, et al.,
Defendants.

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Before the Court is the “Motion for Summary Judgment, or in the Alternative, Partial

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Summary Judgment,” filed August 7, 2015, by defendants City and County of San

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Francisco, San Francisco Fire Department, San Francisco Fire Commission, and Civil

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Service Commission of San Francisco (collectively, “the City”). Plaintiffs Aaron C.

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Stevenson, Kevin D. Taylor, Kevin W. Smith, Audry Lee and Kirk W. Richardson have filed

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opposition, to which the City has replied.

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Having read and considered the papers filed in support of and in opposition to the

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motion, the Court, as discussed below, finds it appropriate to afford plaintiffs leave to file a

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surreply, limited to two issues.

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A. Statute of Limitations Defense as to Certain Claims Made on Behalf of Smith

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In its motion, the City correctly notes that plaintiffs, in the First Amended Complaint
(“FAC”), allege that Aaron C. Stevenson (“Stevenson), Kevin D. Taylor (“Taylor”) and Kevin

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W. Smith (“Smith”) were subjected to discriminatory and retaliatory conduct “[i]n addition to

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their allegations of discrimination in relation to the H-50 exam and promotions” (see Defs.’

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Mot. at 11:17-19; see also id. at 11:20 - 12:3 (citing FAC ¶¶ 89, 108-110, 113-119, 122-

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131)). The City argues that (1) to the extent plaintiffs allege such conduct was in violation

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of 42 U.S.C. § 1981 and the conduct occurred more than four years prior to the date on

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which the instant action was filed, the § 1981 claims are barred by the statute of limitations,

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and (2) to the extent plaintiffs allege such conduct was in violation of 42 U.S.C. § 1983 and

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the conduct occurred more than two years prior to the date on which the instant action was

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filed, the § 1983 claims are barred by the statute of limitations.

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In its moving papers, the City makes the above-referenced argument only with

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respect to § 1981 and § 1983 claims alleged on behalf of Stevenson and Taylor. (See

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Defs.’ Mot. at 15:22 - 16:14.) In its reply, however, the City does raise the same argument

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with respect to Smith. (See Defs.’ Reply at 6:22-28.)

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Given the manner in which the City’s statute of limitations argument, as it pertains to

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§ 1981 and § 1983 claims brought on behalf of Smith, was raised, the Court finds it

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appropriate to afford plaintiffs leave to respond in a surreply, specifically, to address

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whether § 1981 and § 1983 claims based on the conduct identified in the FAC at ¶¶ 123-

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129 and ¶ 131 are barred by the statute of limitations.

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B. Municipal Liability Claims

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In its motion, the City argues that, to the extent plaintiffs seek relief under § 1981

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and § 1983, plaintiffs cannot establish a municipal liability, i.e., a Monell, claim. (See Defs.’

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Mot. at 34-35 (citing Monell v. Department of Social Services, 436 U.S. 658 (1978).) In so

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arguing, the City appears to be of the view that plaintiffs are basing their Monell claim on

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each adverse employment act identified in the FAC. The FAC, however, does not

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expressly include such an allegation, and, in their opposition, plaintiffs respond to the

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above-referenced argument only as it pertains to plaintiffs’ claims based on the City’s

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adoption and use of the H-50 Assistant Chief examination (see Pls.’ Opp. at 35:3-14, 26-

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To assist the Court in determining the basis for plaintiffs’ Monell claim, the Court will

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afford plaintiffs leave to clarify in a surreply if they are basing their Monell claim on any

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alleged adverse employment act other than the City’s adoption and use of the H-50

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Assistant Chief examination. In particular, plaintiffs should indicate whether they are

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basing their Monell claim on any of the allegedly adverse employment acts identified in the

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FAC at ¶¶ 89, 108-110, 118-119, 123, 124-131, and, if so, to identify the asserted

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municipal custom or practice implicated by each such adverse employment act.
CONCLUSION

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For the reasons stated above, plaintiffs are hereby afforded leave to file, no later

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than December 18, 2015, a surreply, limited to five pages in length, exclusive of exhibits, to

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address the two issues identified above.

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As of December 18, 2015, unless the parties are otherwise advised, the Court will
take defendants’ motion under submission.
IT IS SO ORDERED.

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Dated: December 10, 2015
MAXINE M. CHESNEY
United States District Judge

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