BNSF Railway Company, et al v. California State Board of Equalization, et al
Filing
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STIPULATION AND ORDER Regarding Stay Of Proceedings. Signed by Judge Richard Seeborg on 12/5/16. (cl, COURT STAFF) (Filed on 12/5/2016)
1 BENJAMIN J. HORWICH (State Bar No. 249090)
JOHN F. MULLER (State Bar No. 300839)
2 DAVID J. FEDER (State Bar No. 302112)
MUNGER, TOLLES & OLSON LLP
3 560 Mission Street
Twenty-Seventh Floor
4 San Francisco, California 94105
Telephone:
(415) 512-4000
5 Facsimile:
(415) 512-4077
ben.horwich@mto.com
6 Attorneys for Plaintiff BNSF Railway Company
7 RAYMOND A. ATKINS (pro hac vice)
REBECCA K. WOOD (pro hac vice)
8 HANNA M. CHOUEST (pro hac vice)
TOBIAS S. LOSS-EATON (pro hac vice)
9 SIDLEY AUSTIN LLP
1501 K Street, NW
10 Washington, D.C. 20005
Telephone:
(202) 736-8000
11 Facsimile:
(202) 736-8711
ratkins@sidley.com
12 Attorneys for Plaintiff Union Pacific Railroad Company
13 (additional counsel listed on signature page)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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BNSF RAILWAY COMPANY and UNION
17 PACIFIC RAILROAD COMPANY,
Case No. 3:16-cv-04311-RS
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STIPULATION AND [PROPOSED]
ORDER REGARDING STAY OF
PROCEEDINGS
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Plaintiffs,
vs.
20 CALIFORNIA STATE BOARD OF
EQUALIZATION, et al.,
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Defendants.
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Judge:
Place:
Hon. Richard Seeborg
Courtroom 3, 450 Golden Gate Ave.,
San Francisco, California
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Case No. 3:16-cv-04311-RS
STIPULATION AND [PROPOSED] ORDER REGARDING STAY OF PROCEEDINGS
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Plaintiffs BNSF Railway Company and Union Pacific Railroad Company (collectively,
2 “Plaintiffs”) and Defendants California State Board of Equalization, David J. Gau, George
3 Runner, Fiona Ma, Jerome Horton, Diane L. Harkey, Betty Y. Yee, Kamala D. Harris, California
4 Governor’s Office of Emergency Services, and Mark Ghilarducci (collectively, “Defendants”), by
5 and through their counsel, hereby stipulate and agree as follows:
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WHEREAS, Plaintiffs filed a Complaint and a Motion for Preliminary Injunction to
7 restrain the collection and enforcement of a charge imposed on the transportation by rail in
8 California of certain hazardous materials, under a California law known as Senate Bill 84 (the “SB
9 84 charge”), on the ground that the charge is preempted by certain federal statutory and
10 constitutional provisions;
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WHEREAS, on August 18, 2016, pursuant to the stipulation of the parties, the Court
12 stayed Defendants’ obligation to answer or otherwise respond to the Complaint until 40 days after
13 the Court’s decision on Plaintiffs’ Motion for a Preliminary Injunction, and stayed all discovery14 related obligations and disclosures under Fed. R. Civ. P. 26 until further order of the Court;
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WHEREAS, by orders filed October 28, 2016 and November 15, 2016, this Court
16 preliminarily enjoined the collection and enforcement of the SB 84 charge;
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WHEREAS, on November 18, 2016, Defendants filed a Notice of Appeal with respect to
18 the Court’s October 28, 2016 and November 15, 2016 Orders;
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WHEREAS, Defendants’ appeal has been docketed in the United States Court of Appeals
20 for the Ninth Circuit as No. 16-17130;
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WHEREAS, under this Court’s order, Defendants are due to respond to the Complaint on
22 December 7, 2016;
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WHEREAS, this Court has scheduled a case management conference for January 19, 2017;
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WHEREAS, the parties believe that judicial and party resources would best be conserved
25 by a complete stay of proceedings in this Court during the pendency of Defendants’ appeal;
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WHEREAS, Defendants have agreed, in the event that the Preliminary Injunction is
27 stayed, vacated, reversed or otherwise dissolved, that they will at that time seek to collect
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STIPULATION AND [PROPOSED] ORDER REGARDING STAY OF PROCEEDINGS
1 prospectively only—and will not seek to collect retroactively, or otherwise impose liability on
2 Plaintiffs or Plaintiffs’ customers for—any SB 84 charge that is or could have been imposed.
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ACCORDINGLY, IT IS HEREBY STIPULATED AND AGREED, by and between the
4 undersigned parties that:
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1. All proceedings, including Defendants’ obligation to respond to the Complaint, all
6 discovery, and all disclosures under Fed. R. Civ. P. 26, should be stayed until final resolution of
7 Defendants’ appeal.
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2. The case management conference currently scheduled for January 19, 2017 should be
9 vacated.
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3. In the event that the Preliminary Injunction is stayed, vacated, reversed or otherwise
11 dissolved, Defendants will at that time seek to collect prospectively only—and will not seek to
12 collect retroactively, or otherwise impose liability on Plaintiffs or Plaintiffs’ customers for—any
13 SB 84 charge that is or could have been imposed.
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4. The parties will contact the Court within 7 days of the issuance of the Ninth Circuit’s
15 mandate in Defendant’s appeal to schedule a case management conference.
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DATED: December 2, 2016
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MUNGER, TOLLES & OLSON LLP
BENJAMIN J. HORWICH
JOHN F. MULLER
DAVID J. FEDER
By:
/s/ Benjamin J. Horwich
BENJAMIN J. HORWICH *
Attorneys for Plaintiff BNSF Railway Company
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*
I attest that the concurrence in the filing of this document has been obtained from the other
signatories.
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STIPULATION AND [PROPOSED] ORDER REGARDING STAY OF PROCEEDINGS
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SIDLEY AUSTIN LLP
RAYMOND A. ATKINS (pro hac vice)
REBECCA K. WOOD (pro hac vice)
HANNA M. CHOUEST (pro hac vice)
TOBIAS S. LOSS-EATON (pro hac vice)
CAROL LYNN THOMPSON (State Bar No. 148079)
SIDLEY AUSTIN LLP
555 California Street, Suite 2000
San Francisco, California 94104
Telephone: (415) 772-1291; Facsimile: (415) 772-7400
cthompson@sidley.com
MELISSA B. HAGAN (State Bar No. 297408)
Senior Counsel - Environmental Law &
National Environmental Counsel
UNION PACIFIC RAILROAD COMPANY
13181 Crossroads Parkway North, Suite 500
City of Industry, California 91746
Telephone: (562) 566-4609; Facsimile: (402) 501-2401
mbhagan@up.com
By:
/s/ Rebecca K. Wood
REBECCA K. WOOD
Attorneys for Plaintiff Union Pacific Railroad Company
KAMALA D. HARRIS
Attorney General of California
RANDY L. BARROW
Supervising Deputy Attorney General
LINDA GÁNDARA (State Bar No. 194667)
Deputy Attorney General
By:
/s/ Nicholas Stern
NICHOLAS STERN (State Bar No. 148308)
Deputy Attorney General
Attorneys for Defendants California Board of
Equalization, David J. Gau, George Runner, Fiona Ma,
Jerome Horton, Diane L. Harkey, Betty T. Yee, Kamala
D. Harris, California Governor’s Office of Emergency
Services, and Mark Ghilarducci
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STIPULATION AND [PROPOSED] ORDER REGARDING STAY OF PROCEEDINGS
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Pursuant to stipulation, and good cause appearing, IT IS SO ORDERED.
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DATED: December ____, 2016
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By:
Hon. Richard Seeborg
UNITED STATES DISTRICT JUDGE
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STIPULATION AND [PROPOSED] ORDER REGARDING STAY OF PROCEEDINGS
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