Local Search Association v. City & County of San Francisco et al

Filing 185

ORDER DENYING AS MOOT 182 MOTION to Have Case Management Conference Proceedings Transcribed by a Court Reporter filed by Local Search Association, Set/Reset Deadlines as to 182 MOTION to Have Case Management Conference Proceed ings Transcribed by a Court Reporter . Motion to dismiss due by 12/10/13. Responses due by 1/2/2013. Replies due by 1/16/2013. Motion Hearing set for 1/29/2013 01:00 PM before Hon. Saundra Brown Armstrong.. Signed by Judge ARMSTRONG on 11/7/12. (lrc, COURT STAFF) (Filed on 11/8/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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8 LOCAL SEARCH ASSOCIATION,

Plaintiff,

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Case No: C 11-2776 SBA
ORDER SETTING BRIEFING
SCHEDULE

vs.

11 CITY AND COUNTY OF SAN

FRANCISCO; BOARD OF SUPERVISORS
12 OF THE CITY AND COUNTY OF SAN

FRANCISCO; and EDWIN M. LEE, in his
13 official capacity as MAYOR of the City and

County of San Francisco,
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Defendants.
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Plaintiff Local Search Association (“LSA”) filed the instant action against the City

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and County of San Francisco, the Board of Supervisors of San Francisco (“Board”) and

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Mayor Edwin M. Lee (collectively “the City”), to challenge the constitutionality of City

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Ordinance 78-11 (“Ordinance”), which imposes restrictions on the distribution of Yellow

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Pages telephone directories. Prior to effective date of the Ordinance, LSA filed a motion

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for preliminary injunction to enjoin the Ordinance. In response, the City agreed to

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postpone implementation of the Ordinance pending resolution of the appeal in Dex Media

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West, Inc. v. City of Seattle, No. 11-35399, a case which involves an ostensibly analogous

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ordinance enacted by the City of Seattle restricting the distribution of the Yellow Pages.

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On October 15, 2012, the Ninth Circuit issued its decision in Dex Media West, Inc. v. City

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of Seattle, -- F.3d --, 2012 WL 4857200 (9th Cir. Oct. 15, 2012), which invalidated the

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Seattle ordinance. In reaching its decision, the Ninth Circuit held that Yellow Pages

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telephone directories qualified as protected speech under the First Amendment.

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In view of Dex Media and its impact on the Ordinance, the City introduced new

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legislation suspending the Ordinance (“Suspension Ordinance”). According to the City, the

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Suspension Ordinance is scheduled to be heard by the Land Use Committee of the Board

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on November 19, 2012. See Dkt. 184 at 3. After a committee meeting, the matter must be

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considered by the full Board at two separate Board meetings, which the City anticipates

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will occur on November 20, 2012, and December 4, 2012. Id. If the Suspension Ordinance

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is finally approved, Mayor Lee has ten days to sign it into law. Id.

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The City contends that given the anticipated suspension of the Ordinance, LSA no

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longer has standing to seek injunctive relief and that the action is otherwise moot.

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Notwithstanding that the Ordinance has not yet been and is not scheduled to be

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implemented, LSA maintains that the continued presence of the Ordinance and its alleged

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threatened enforcement causes harm to LSA’s members. Therefore, LSA disputes that its

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challenge to the Ordinance is moot and requests a ruling on its motion for preliminary

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injunction. In addition, both parties have submitted a stipulated request to file cross-

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motions to be heard on January 29, 2013. Dkt. 183. Specifically, the City intends to file a

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Motion to Dismiss for Lack of Subject Matter Jurisdiction, while LSA intends to file a

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Motion for Summary Judgment.

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It is well-established that a federal court cannot reach the merits of any dispute until

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it confirms that it retains subject matter jurisdiction to adjudicate the issues presented. See

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Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998); S. Pac. Transp. Co.

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v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990). Therefore, to facilitate the

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efficient administration of justice, the Court will first consider the City’s Motion to Dismiss

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for Lack of Subject Matter Jurisdiction. See Landis v. North Am. Co., 299 U.S. 248, 254

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(1936). In the event that the Court finds that it has subject matter jurisdiction and that

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dismissal of the action is not warranted, the Court will issue a briefing schedule on LSA’s

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anticipated Motion for Summary Judgment and will resolve the motion for preliminary

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injunction. Accordingly,

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IT IS HEREBY ORDERED THAT:

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1.

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The following briefing schedule shall apply to the City’s Motion to Dismiss

for Lack of Subject Matter Jurisdiction:

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a.

Motion due by December 10, 2012.

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b.

Opposition due by January 2, 2013.

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c.

Reply due by January 16, 2013.

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The hearing on the City’s motion will take place on January 29, 2013 at 1:00 p.m. The

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Court, in its discretion, may resolve the motion without oral argument. Fed. R. Civ. P.

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78(b); Civ. L.R. 7-1(b). The parties are advised to check the Court’s website to determine

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whether an appearance is required.

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In view of the foregoing, the Case Management Conference scheduled for

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November 8, 2012 is VACATED. The Case Management Conference will be rescheduled,

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if appropriate, following the Court’s determination of the City’s motion. LSA’s request to

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have the Case Management Conference scheduled for November 8, 2012, transcribed by a

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court reporter is DENIED as moot.

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3.

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IT IS SO ORDERED.

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This Order terminates Docket 182.

Dated: November 7, 2012

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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