Russell City Energy Company, LLC v. City of Hayward

Filing 32

ORDER REQUESTING SUPPLEMENTAL BRIEFING AND CONTINUING HEARING DATE as to #20 MOTION to Dismiss First Amended Complaint. Motion Hearing set for 10/31/2014 09:00 AM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White. Signed by Judge JEFFREY S. WHITE on 10/1/14. (jjoS, COURT STAFF) (Filed on 10/1/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RUSSELL CITY ENERGY COMPANY, LLC,
No. C 14-03102 JSW

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For the Northern District of California

United States District Court

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Plaintiff,
v.

ORDER REQUESTING
SUPPLEMENTAL BRIEFING
AND CONTINUING HEARING
DATE

CITY OF HAYWARD,

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Defendant.
/

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This matter comes before the Court upon consideration of the motion to dismiss filed by

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the City of Hayward (“Hayward”). The Court is no longer available for a hearing on October

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10, 2014. Accordingly, the Court CONTINUES the hearing to October 31, 2014 at 9:00 a.m.

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However, if it determines that the motion is suitable for disposition without oral argument, it

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shall notify the parties in advance of the hearing. If the parties are unavailable on October 31,

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2014, the parties may submit a request to continue the hearing to an open and available date in

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December. Alternatively, the Court would consider a request to move the hearing to October

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17, 2014.

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The Court FURTHER ORDERS supplemental briefing from Plaintiff as set forth in this

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Order. One of the issues raised by Defendant’s motion to dismiss is the interpretation of the

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following contract provision (the “Payment Clause”):

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[T]he Parties acknowledge that payments to be made by [RCEC] as
contemplated in this Agreement comprise all payments to be made to the
City by [RCEC] . . . in connection with the development, construction,
ownership and operation of [the Energy Center] and the City shall not
impose any other levies, fees, taxes, contributions, or charges on [RCEC] . .
. other than such levies, fees, taxes, contributions, or charges generally
applicable to similarly situated owners of real property located in the City.

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Plaintiff argues that the Court cannot dismiss this case on a motion to dismiss, because

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the parties have competing interpretations of the Payment Clause, each of which are reasonable.

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Plaintiff acknowledges the emphasized language, but its argument about the proper

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interpretation of the Payment Clause boils down to an assertion that it is not required to pay the

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tax at issue. Plaintiff has neither clearly argued why it believes the Payment Clause to be

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ambiguous nor clearly proffered its competing interpretation of the Payment Clause.

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Accordingly, by no later than October 8, 2014, Plaintiff shall file a supplemental brief

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that is no longer than two (2) pages, that clearly sets forth its position on those two issues.

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There shall be no further response from Defendant, unless otherwise ordered by the Court.
IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: October 1, 2014
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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