Synergy Project Management, Inc. v. City and County of San Francisco et al

Filing 45

ORDER DENYING SYNERGY'S MOTION FOR ADMINISTRATIVE RELIEF denying 40 MOTION for Leave to Submit Material filed filed by Synergy Project Management, Inc. Signed by Judge Jon S. Tigar on April 25, 2018. (wsn, COURT STAFF) (Filed on 4/25/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SYNERGY PROJECT MANAGEMENT,
INC.,

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United States District Court
Northern District of California

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Plaintiff,
v.
CITY AND COUNTY OF SAN
FRANCISCO, et al.,

Case No. 17-cv-06763-JST
ORDER DENYING SYNERGY’S
MOTION FOR ADMINISTRATIVE
RELIEF
Re: ECF No. 40

Defendants.

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Plaintiff has filed a motion for leave to submit material post-briefing evidence, for leave to

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file a sur-reply, and, in the alternative, for leave to amend. ECF No. 40. The purpose of the

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motion is to place before the Court, one way or another, Plaintiff’s newly filed Government

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Claims Act claim against Defendants. Id. at 2. Defendants’ motion to dismiss, which is based in

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part on Plaintiff’s failure to satisfy the Government Claims Act, is currently pending before the

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Court. ECF No. 8. Plaintiff filed both the present motion and its Government Claims Act claim

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well after Defendants filed their motion to dismiss. Id.

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The Court previously construed the present motion as an administrative motion under

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Local Rule 7-11, and ordered Defendants to file a response. ECF No. 42. Defendants oppose the

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motion on the ground that the Court may not consider new evidence in a pending motion to

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dismiss. ECF No. 43 (citing Harris v. Cty. of Orange, 682 F.3d 1126 (9th Cir. 2012)).

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The motion is denied. The Court will not consider evidence of Plaintiff’s newly filed

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Government Claims Act claim in the pending motion to dismiss. See Von Saher v. Norton Simon

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Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) (“Courts may take judicial

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notice . . . to indicate what was in the public realm at the time . . . .”) (citing Heliotrope Gen. Inc.

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v. Ford Motor Co., 189 F.3d 971, 981 n.118 (9th Cir. 1999)). The Court will consider whether

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and to what extent Plaintiff may amend its claims when it rules on Defendants’ motion to dismiss.

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Fed. R. Civ. P. 15(a).

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IT IS SO ORDERED.
Dated: April 25, 2018
______________________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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