Metro Fuel LLC v. City of San Francisco et al

Filing 112

STIPULATION AND ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS re 64 MOTION for Judgment on the Pleadings filed by City of San Francisco, County of San Francisco, City and County of San Francisco. Signed by Judge Phyllis J. Hamilton on 1/22/09. (nah, COURT STAFF) (Filed on 1/22/2009)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DENNIS J. HERRERA, State Bar #139669 City Attorney KRISTEN A. JENSEN, State Bar #130196 THOMAS S. LAKRITZ, State Bar #161234 VICTORIA WONG, State Bar #214289 Deputy City Attorneys 1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, California 94102-4682 Telephone: (415) 554-6547 Facsimile: (415) 554-4747 E-Mail: tom.lakritz@sfgov.org Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA METRO FUEL LLC, a Delaware limited liability company, Plaintiff, vs. CITY OF SAN FRANCISCO, a municipal corporation, COUNTY OF SAN FRANCISCO, a subdivision of the State of California, CITY AND COUNTY OF SAN FRANCISCO, a chartered California city and county and DOE 1 through DOE 10, Defendants. Case No. C07-6067 PJH STIPULATION AND [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS It is hereby STIPULATED and AGREED, by and between Plaintiff Metro Fuel LLC ("Metro Fuel") and the City of San Francisco, County of San Francisco, and City and County of San Francisco (collectively, "the City" or "San Francisco"), through their attorneys of record as follows: 1. 2. On April 17, 2008, Metro Fuel filed its First Amended Complaint. In its First Amended Complaint, Metro Fuel alleged one cause of action under 42 1 c:\attchmnt\metro fuel stip and po.doc U.S.C. 1983. Metro Fuel's one cause of action, however, was premised on three distinct legal STIP. & [PROPOSED] ORDER GRANTING MJOP USDC C07-6067 PJH 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 theories. First, in paragraphs 23-80, Metro Fuel alleged that Article 6 of the San Francisco Planning Code violated the First Amendment of the U.S. Constitution (the "Metro Lights claim"). Second, in paragraphs 81-89, Metro Fuel alleged that the practical effect of San Francisco's ban on new general advertising signs (San Francisco Planning Code section 611) is the reservation "for itself a monopoly over outdoor advertising signs in San Francisco" in violation of the First Amendment of the U.S. Constitution (the "Government Monopoly claim"). Third, in paragraphs 90-101, Metro Fuel alleged that various provisions of Article 6 of the San Francisco Planning Code discriminate against noncommercial speech in violation of the First Amendment of the U.S. Constitution (the "NonCommercial Speech claim"). 3. On August 29, 2008, the City filed a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) attacking Metro Fuel's Metro Lights claim on several grounds. On September 12, 2008, Metro Fuel filed its opposition to the City's motion. 4. On January 6, 2009, the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit") issued its decision in Metro Lights, L.L.C. v. City of Los Angeles, --- F.3d ----, 2009 WL 22922 (C.A. 9 (Cal.)) (the "Metro Lights decision"). The Ninth Circuit held that Los Angeles's regulatory scheme prohibiting new off-site general advertising signs did not violate the First Amendment, even though Los Angeles allowed off-site advertising on city-owned transit stops and other street furniture. 5. Metro Fuel concedes that the Metro Lights decision, to the extent it is not reversed in an en banc proceeding or by the United States Supreme Court, disposes of its Metro Lights claim in this action against San Francisco. 6. Accordingly, the parties agree that this Court should grant San Francisco's motion for judgment on the pleadings with respect to the Metro Lights claim alleged in paragraphs 23-80 of the First Amended Complaint. 7. The parties acknowledge that Metro Fuel has reserved its right to move this Court to reconsider this Stipulation and Order, as allowed by the Federal Rules of Civil Procedure, if the Metro Lights decision is reversed in an en banc proceeding or by the United States Supreme Court. STIP. & [PROPOSED] ORDER GRANTING MJOP USDC C07-6067 PJH 2 c:\attchmnt\metro fuel stip and po.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. The parties acknowledge that Metro Fuel's Government Monopoly and Non- Commercial Speech claims remain in this action. 9. The parties further acknowledge that the remaining grounds set forth in the City's Fed.R.Civ.P. 12(c) motion are not addressed in this stipulation and order, and that the City may bring those challenges to Metro Fuel's Government Monopoly and Non-Commercial Speech claims in a subsequent motion or at trial. DATED: January 20, 2009 DENNIS J. HERRERA City Attorney By: /s/ THOMAS S. LAKRITZ . Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO DATED: January 20, 2009 LAW OFFICES OF PAUL E. FISHER By: /s/ PAUL E. FISHER . Attorneys for Plaintiff METRO FUEL, LLC DATED: January 20, 2009 EMERY CELLI BRINCKERHOFF & ABADY LLP By: /s/ ERIC HECKER . Attorneys for Plaintiff METRO FUEL, LLC STIP. & [PROPOSED] ORDER GRANTING MJOP USDC C07-6067 PJH 3 c:\attchmnt\metro fuel stip and po.doc 1 2 3 4 5 6 7 8 9 IT IS SO ORDERED: Pursuant to the stipulation of the parties, the City's motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is GRANTED IN PART and Metro Fuel's Metro Lights claim is DISMISSED. Metro Fuel's Government Monopoly and Non-Commercial Speech claims, set forth in paragraphs 81-89 and 90-101, respectively, of the First Amended Complaint remain in this action. The remaining grounds asserted in the City's Fed.R.Civ.P. 12(c) motion are not addressed in this order, and the City may assert those challenges to Metro Fuel's Government Monopoly and NonCommercial Speech claims in a subsequent motion or at trial. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIP. & [PROPOSED] ORDER GRANTING MJOP USDC C07-6067 PJH UNIT ED 10 1/22/09 Dated:__________________________ J ER N D IS T IC T R OF 4 c:\attchmnt\metro fuel stip and po.doc A C LI FO yllis J. udge Ph Hamilto n R NIA ___________________________________ D HONORABLE PHYLLIS J. HAMILTON RDERE JUDGE OF THE U.S. DISTRICT COURT S SO O TI S S DISTRICT TE C TA RT U O I NO RT H

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