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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 RUSSELL CITY ENERGY COMPANY, LLC, No. C 14-03102 JSW 11 For the Northern District of California United States District Court 10 12 Plaintiff, v. ORDER REQUESTING SUPPLEMENTAL BRIEFING AND CONTINUING HEARING DATE CITY OF HAYWARD, 13 Defendant. / 14 15 This matter comes before the Court upon consideration of the motion to dismiss filed by 16 the City of Hayward (“Hayward”). The Court is no longer available for a hearing on October 17 10, 2014. Accordingly, the Court CONTINUES the hearing to October 31, 2014 at 9:00 a.m. 18 However, if it determines that the motion is suitable for disposition without oral argument, it 19 shall notify the parties in advance of the hearing. If the parties are unavailable on October 31, 20 2014, the parties may submit a request to continue the hearing to an open and available date in 21 December. Alternatively, the Court would consider a request to move the hearing to October 22 17, 2014. 23 The Court FURTHER ORDERS supplemental briefing from Plaintiff as set forth in this 24 Order. One of the issues raised by Defendant’s motion to dismiss is the interpretation of the 25 following contract provision (the “Payment Clause”): 26 27 28 [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. 1 Plaintiff argues that the Court cannot dismiss this case on a motion to dismiss, because 2 the parties have competing interpretations of the Payment Clause, each of which are reasonable. 3 Plaintiff acknowledges the emphasized language, but its argument about the proper 4 interpretation of the Payment Clause boils down to an assertion that it is not required to pay the 5 tax at issue. Plaintiff has neither clearly argued why it believes the Payment Clause to be 6 ambiguous nor clearly proffered its competing interpretation of the Payment Clause. 7 Accordingly, by no later than October 8, 2014, Plaintiff shall file a supplemental brief 8 that is no longer than two (2) pages, that clearly sets forth its position on those two issues. 9 There shall be no further response from Defendant, unless otherwise ordered by the Court. IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 12 Dated: October 1, 2014 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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