Metro Fuel LLC v. City of San Francisco et al

Filing 123

ORDER SETTING BRIEFING SCHEDULE AND VACATING CASE MANAGEMENT CONFERENCE re 122 Joint Case Management Statement filed by City of San Francisco, County of San Francisco, City and County of San Francisco, Metro Fuel LLC. Signed by Judge Phyllis J. Hamilton on 2/1/10. (nah, COURT STAFF) (Filed on 2/1/2010)

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SHANNON S. LINDSAY, State Bar #227174 Reuben & Junius, LLP One Bush Street, Suite 600 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] ERIC HECKER (admitted pro hac vice) Emery Celli Brinckerhoff & Abady LLP 75 Rockefeller Plaza, 20th Floor New York, NY 10019 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff METRO FUEL LLC 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 City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, California 94102 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] 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.
JOINT CASE MANAGEMENT STATEMENT USDC No. C07-6067 PJH

Case No. C07-6067 PJH The Honorable Phyllis J. Hamilton JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER Hearing Date: Time: February 11, 2010 2:30 P.M.

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The parties in this action hereby submit this Joint Case Management Statement and advise the Court 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

U.S.C. § 1983. Metro Fuel's one cause of action, however, was premised on three distinct legal 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, 551 F.3d 898 (9th Cir. 2009) (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.

JOINT CASE MANAGEMENT STATEMENT USDC No. C07-6067 PJH

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5.

Metro Fuel conceded that the Metro Lights decision, to the extent it is not reversed in

an en banc proceeding or by the United States Supreme Court, disposed of its Metro Lights claim in this action against San Francisco. 6. On January 20, 2009, the parties filed a stipulation stating that the parties agreed 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. On January 22, 2009, this Court entered an order granting the City's motion for

judgment on the pleadings in part and dismissing Metro Fuel's Metro Lights claim. 8. On or about April 16, 2009, the United States Court of Appeals for the Ninth Circuit

denied the petition for rehearing en banc in the Metro Lights case. 9. Metro Fuel (which is the successor in interest to Metro Lights) filed its petition for

certiorari to the United States Supreme Court in the Metro Lights case on August 31, 2009. 10. On December 14, 2009, the United States Supreme Court denied Metro Fuel's petition

for certiorari in the Metro Lights case. 11. Metro Fuel has indicated to the City that it intends to move forward with its

Government Monopoly and Non-Commercial Speech claims. The City believes that these claims are susceptible to a Fed.R.Civ.Proc. 12(c) motion. Metro Fuel believes that these claims are not susceptible to a Fed.R.Civ.Proc. 12(c) motion, and that any such motion would not be timely. 12. The parties have met and conferred and propose the following briefing schedule for

the City's Fed.R.Civ.Proc. 12(c) motion: Motion/Opening Brief Opposition Brief Reply Brief Hearing
JOINT CASE MANAGEMENT STATEMENT USDC No. C07-6067 PJH

4/02/10 4/16/10 4/23/10 5/26/10 at 9:00 a.m. 3
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13.

The parties request that the Case Management Conference set for February 11, 2010,

be continued, if necessary, until after the Court rules on the City's' Fed.R.Civ.Proc. 12(c) motion.

Dated: January 28, 2010

EMERY CELLI BRINCKERHOFF & ABADY LLP

By:_

/S/ ERIC HECKER

.

Dated: January 28, 2010

REUBEN & JUNIUS, LLP

By:_

/S/ SHANNON S. LINDSAY

.

Attorneys for Plaintiff METRO FUEL LLC.

Dated: January 28, 2010

DENNIS J. HERRERA City Attorney KRISTEN A. JENSEN THOMAS S. LAKRITZ VICTORIA WONG Deputy City Attorneys

By:

/S/ THOMAS S. LAKRITZ

.

Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO

JOINT CASE MANAGEMENT STATEMENT USDC No. C07-6067 PJH

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1 2 3 4 5 6 IT IS SO ORDERED:

[PROPOSED] CASE MANAGEMENT ORDER The Case Management Conference Statement of the parties is hereby adopted by the Court as the Case Management Order for the case and the parties are ordered to comply with this Order.

UNIT ED

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2/1/10 Dated:______________________

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JOINT CASE MANAGEMENT STATEMENT USDC No. C07-6067 PJH

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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 Dated: January 28, 2010

SIGNATURE ATTESTATION (U.S.D.C. N.D. Cal. General Order 45, Section X.B)

I obtained the concurrence in the filing of this document from each other signatory, or from the single signatory, in compliance with U.S.D.C. N.D. General Order 45, Section X.B.

DENNIS J. HERRERA City Attorney KRISTEN A. JENSEN THOMAS S. LAKRITZ VICTORIA WONG Deputy City Attorneys By: /S/ THOMAS S. LAKRITZ Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO

JOINT CASE MANAGEMENT STATEMENT USDC No. C07-6067 PJH

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