Contest Promotions, LLC v. City and County of San Francisco

Filing 73

ORDER ON PLAINTIFF'S MOTION FOR INJUNCTION PENDING APPEAL 57 . (Illston, Susan) (Filed on 1/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CONTEST PROMOTIONS, LLC,

Case No. 15-cv-00093-SI

Plaintiff,
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v.

ORDER ON PLAINTIFF'S MOTION
FOR INJUNCTION PENDING APPEAL

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CITY AND COUNTY OF SAN
FRANCISCO,
Defendant.

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United States District Court
Northern District of California

Re: Dkt. No. 57

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This Court has presided over several disputes between plaintiff Contest Promotions LLC

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(“Contest Promotions”) and defendant City and County of San Francisco (“San Francisco” or “the

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City”) related to San Francisco’s sign regulations.1 On July 28, 2015, the Court dismissed this

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lawsuit with prejudice, Dkt. No. 43, and plaintiff appealed to the Ninth Circuit. The parties

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finished briefing the appeal in June 2016 and await oral argument.

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Before the Court is plaintiff’s motion for an injunction pending appeal.2 Plaintiff seeks an

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injunction to prevent the City from enforcing provisions of the San Francisco City Planning Code

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(the “Planning Code”) and from levying associated fines. On December 21, 2016, the Court held

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a hearing on plaintiff’s motion. After careful consideration of papers submitted, the Court hereby

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DENIES plaintiff’s motion.

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BACKGROUND

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The Court set forth a detailed factual background in its previous orders in this case, as well

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Case Nos. 09-cv-04434 (closed Feb. 4, 2013), 15-cv-04365 (closed Mar. 17, 2016), 15cv-00093 (closed July 28, 2015), appeal docketed, No. 15-16682 (9th Cir. Aug. 25, 2015), and 16cv-06539 (filed Nov. 10, 2016).
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Plaintiff has also filed a motion for preliminary injunction in Case No. 16-cv-06539.
This order does not address that motion.

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as in a recently filed order in the most recent related case. See Dkt. Nos. 25, 43; Contest

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Promotions LLC v. City & Cnty. of S.F., Case. No. 16-cv-06539-SI, Dkt. No. 27. The Court will

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not repeat a detailed background here.
In this case, this Court twice rejected Contest Promotions’ argument that Planning Code

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section 602.3 operates as an unconstitutional burden on speech. Dkt. Nos. 25, 43. Contest

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Promotions appealed from the Court’s judgment on August 25, 2015. Dkt. No. 47. The City

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served Contest Promotions with new Notices of Enforcement (“NOEs”) in October and

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November 2016, and Contest Promotions filed this motion for an injunction pending resolution of

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the appeal. Mot. (Dkt. No. 57). At the same time, and premised on the same new NOEs, Contest

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Promotions filed a new action challenging provisions of Article 6 of the Planning Code, and filed

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United States District Court
Northern District of California

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a motion for a preliminary injunction in that case. See Contest Promotions, LLC v. City and Cnty.

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of S.F., No. 16-cv-6539 (N.D. Cal. filed Nov. 10, 2016).

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LEGAL STANDARD

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When a notice of appeal is filed, jurisdiction over the matters being appealed normally

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transfers from the district court to the appeals court. See Marrese v. Am. Academy of Orthopaedic

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Surgeons, 470 U.S. 373, 379 (1985) (“In general, filing of a notice of appeal confers jurisdiction

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on the court of appeals and divests the district court of control over those aspects of the case

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involved in the appeal.”). The Federal Rules of Civil Procedure provide an exception, however,

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that allows the district court to retain jurisdiction to “suspend, modify, restore, or grant an

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injunction” during the pendency of the appeal. Mayweathers v. Newland, 258 F.3d 930, 935 (9th

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Cir. 2001) (citing Fed. R. Civ. P. 62(c)).

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“The district court retains jurisdiction during the pendency of an appeal to act to preserve

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the status quo.” Natural Res. Def. Council Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir.

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2001) (citations omitted). However, Rule 62(c) “does not restore jurisdiction to the district court

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to adjudicate anew the merits of the case.” Id. (citation and internal quotation marks omitted).

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“The district court’s exercise of jurisdiction should not materially alter the status of the case on

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appeal.” Mayweathers, 258 F.3d at 935 (citation in internal quotation marks omitted).
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Under Rule 62(c), the factors regulating the issuance of the injunction are “(1) whether the

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stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the

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applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will

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substantially injure the other parties interested in the proceeding; and (4) where the public interest

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lies.” See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The standard for a Rule 62(c)

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injunction pending appeal is similar to the standard for a preliminary injunction, Lopez v. Heckler,

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713 F.2d 1432, 1435 (9th Cir.1983), which requires the plaintiff to “establish that he is likely to

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

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relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

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Winter v. Natural Res. Defense Council, 555 U.S. 7, 20 (2008) (citations omitted).

United States District Court
Northern District of California

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DISCUSSION

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This Court has fully adjudicated Contest Promotions’ request for injunctive relief as to the
new NOEs in the new action it filed, 16-cv-6539, Dkt. No. 27.

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In addition, however, Contest Promotions brings this motion under Federal Rule of Civil

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Procedure 62(c), which permits district courts to “suspend, modify, restore, or grant an injunction

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on terms for bond or other terms that secure the opposing party’s rights” while an appeal is

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pending. Fed. R. Civ. P. 62(c). The City does not dispute the applicability of Rule 62(c); but an
injunction under Rule 62(c) is only appropriate where it merely “act[s] to preserve the status quo.”

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Natural Res. Def. Council, 242 F.3d at 1166 (citations omitted). Where “[i]f granted, . . . the

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effect will be to give [an] appellant the fruits of victory whether or not the appeal has merit[,]” an

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injunction should issue only where the “appellant has presented a substantial question for

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consideration on appeal.” Jimenez v. Barber, 252 F.2d 550 (9th Cir. 1958).

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In July 2015, this Court entered judgment for the City. Over a year later, plaintiff filed this
motion for an injunction pending appeal. The “status quo” in this litigation is the Court’s holding

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that Planning Code section 602.3 does not unconstitutionally burden protected speech. What

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Contest Promotions seeks is an alteration, rather than a preservation, of the status quo. Entering

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an injunction at this stage would, in a sense, “serve to adjudicate anew the merits of the case.” See

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Natural Res. Def. Council, 242 F.3d at 1166. The Court declines to exercise jurisdiction over this

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motion.

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In any event, for the reasons set forth in the Court’s prior dismissal orders, Dkt. Nos. 25,
43, as well as in the Court’s order denying Contest Promotions’ motion for a preliminary

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United States District Court
Northern District of California

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injunction in Case No. 16-cv-06539, Contest Promotions cannot demonstrate the likelihood of
success required for an injunction pending appeal.
Accordingly, plaintiff’s motion for an injunction pending appeal is hereby DENIED.

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CONCLUSION
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For the foregoing reasons, the Court hereby DENIES plaintiff’s motion for an injunction

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pending appeal.
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This order resolves Dkt. No. 57.
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IT IS SO ORDERED.
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Dated: January 9, 2017
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______________________________________
SUSAN ILLSTON
United States District Judge

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