Robinson v. Open Top Sightseeing San Francisco, LLC

Filing 38

ORDER by Judge Hamilton denying 32 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 7/23/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HAROLD ROBINSON,
Plaintiff,

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ORDER DENYING MOTION TO
DISMISS

OPEN TOP SIGHTSEEING
SAN FRANCISCO, LLC,

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For the Northern District of California

United States District Court

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v.

No. C 14-0852 PJH

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Defendant.
_______________________________/

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Defendant’s motion to dismiss came on for hearing before this court on July 23,

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2014. Plaintiff Harold Robinson (“plaintiff”) appeared through his counsel, Joel Young.

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Defendant Open Top Sightseeing San Francisco, LLC (“defendant”) appeared through its

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counsel, Michael Purcell. Having read the papers filed in conjunction with the motion and

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carefully considered the arguments and relevant legal authority, and good cause

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appearing, the court hereby DENIES defendant’s motion to dismiss for the reasons stated

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at the hearing.

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While the court finds that the majority of plaintiff’s allegations are not sufficient to

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meet the “interstate commerce” element of his first cause of action, the allegation that

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defendant “sells tour packages to out-of-state individuals and/or groups” is arguably

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sufficient to meet the “interstate commerce” element. The court also finds that plaintiff’s

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allegations are sufficient to allege willfulness. Accordingly, defendant’s motion is DENIED.

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However, the court notes that neither issue is foreclosed from further litigation on the

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merits, because while plaintiff’s allegations are sufficient for pleading purposes, they will

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need to be supported by actual evidence after discovery.

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IT IS SO ORDERED.
Dated: July 23, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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