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Local Search Association v. City and County of San Francisco

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION


January 31, 2013

LOCAL SEARCH ASSOCIATION,
PLAINTIFF,
v.
CITY AND COUNTY OF SAN FRANCISCO BOARD OF SUPERVISORS OF THE CITY AND COUNTY OF SAN FRANCISCO; AND
EDWIN M. LEE, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY AND COUNTY OF SAN
FRANCISCO,
DEFENDANTS.

The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge

ORDER DENYING DEFENDANTS' MOTION TO DISMISS COMPLAINT JURISDICTION; ORDER FOR LACK OF SUBJECT MATTER ; REFERRING MATTER FOR MANDATORY SETTLEMENT CONFERENCE

Docket 186 and businesses involved in the local search industry, filed the instant action against Defendants City and County of San Francisco, the Board of Supervisors of San Francisco and Mayor Edwin M. Lee (collectively, "the City" or "Defendants"), to challenge the constitutionality of City Ordinance 78-11 ("Ordinance"). The Ordinance proposes to restrict the distribution of Yellow Pages telephone directories in the interest of reducing environmental waste. for Lack of Subject Matter Jurisdiction. Dkt. 186. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the motion for the reasons set forth below. The Court, in its discretion, finds this matter suitable for 26 resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

Plaintiff Local Search Association ("LSA"), a trade association comprised of publishers The parties are presently before the Court on Defendants' Motion to Dismiss Complaint

1I. BACKGROUND

On May 19, 2011, the Board of Supervisors passed the Ordinance, which created the 3Yellow Pages Distribution Pilot Program ("Pilot Program"). The Pilot Program purports to 4 regulate the distribution of commercial telephone directories, such as the Yellow Pages, for a 5 three-year period beginning May 1, 2012.1 The Ordinance requires Yellow Pages publishers to 6 deliver directories only to San Francisco residents and businesses who have requested them or 7 who accept delivery in person. S.F. Environment Code § 2103. The San Francisco 8 Department of the Environment is charged with implementing the Ordinance. Id. § 2106. The 9 Ordinance was originally set to take effect on May 1, 2012, but has never been implemented. 10 Id. § 2109.

constitutional violations of the First Amendment, the Equal Protection Clause of the Fourteenth 13

Amendment, the Supremacy Clause, and similar violations of free speech and equal protection 14 under the California Constitution. On September 1, 2011, LSA filed a motion for preliminary 15 injunction to enjoin the Ordinance, claiming that it has, and will, likely cause irreparable 16 financial harm by depriving its members of, among other things, their free speech rights. Dkt. 17

48. Before the hearing on the motion transpired, however, the City indicated that it was 18 voluntarily postponing enforcement of the Ordinance until thirty days after the Ninth Circuit 19 issued its ruling in Dex Media West, Inc. v. City of Seattle, a case which also involves an 20 analogous municipal ordinance restricting the distribution of the Yellow Pages. No. 11-35399 21

(9th Cir. filed May 11, 2011); No. 11-35787 (9th Cir. filed Sept. 21, 2011).

On October 15, 2012, the Ninth Circuit issued its decision in Dex Media West, Inc. v. 23City of Seattle, 696 F.3d 952 (9th Cir. 2012), which invalidated the Seattle ordinance on the 24 ground that it violated the publisher-plaintiffs' First Amendment rights. In reaching its 25 decision, the Ninth Circuit held that Yellow Pages telephone directories qualified as protected 26 speech under the First Amendment and therefore the ordinance was subject to a strict scrutiny sections 2101 to 2108.

On June 7, 2011, LSA filed suit against the City, pursuant to 42 U.S.C. § 1983, alleging

1 The Ordinance is codified at Chapter 21 of San Francisco Environment Code,

1analysis. Id. at 965-66. In recognition that the Ordinance would not pass muster under Dex

2

Media, the City amended the San Francisco Environment Code by adding section 2109, which 3 suspends implementation of the Ordinance. This section, approved by Mayor Lee on 4

December 7, 2012, provides as follows: 5

SEC. 2109. SUSPENSION OF YELLOW PAGES DISTRIBUTION PILOT PROGRAM

6

(a) Chapter 21 of the San Francisco Environment Code,

7

Sections 2101 through 2108, is suspended. During the period of suspension, Chapter 21 shall have no force or effect and shall not

8

be enforced.

(b) In the event that, upon further proceedings in Dex Media

9

West, Inc. v. City of Seattle, the United States Court of Appeals for the Ninth Circuit or the Supreme Court of the United States finally

10

holds that the City of Seattle's restrictions on the distribution of Commercial Phone Directories are consistent with the First

11

Amendment to the United States Constitution, then the suspension of Chapter 21 shall be lifted one year from the date the mandate

12

issues in that case.

13

(c) In the event that the suspension of Chapter 21 is lifted as described in the foregoing subsection (b), then Chapter 21 shall be

14

in force and effect for three years following the date the suspension is lifted, notwithstanding any conflicting sunset date

15

set forth in Section 2108.

16

S.F. Environment Code § 2109.

17

Based on its recent suspension of the Ordinance, the City now moves to the dismiss the

18

action for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure

19

12(b)(1). Dkt. 186. The City contends that its suspension of the Ordinance renders LSA's

20

claims moot. Alternatively, the City argues that because it is unlikely that the Ordinance will

21

ever be enforced, LSA's claims should be dismissed for lack of standing and ripeness. LSA

22

opposes the motion, pointing out that the Ordinance has not been repealed, and thus, remains

23

subject to implementation in the event the governing law changes. The motion has been fully

24

briefed and is ripe for adjudication.

25

II. LEGAL STANDARD

26

Federal Rule of Civil Procedure 12(b)(1) authorizes the district court to dismiss an

27

action for lack of subject matter jurisdiction. Standing, ripeness and mootness all pertain to a

28

federal court's subject matter jurisdiction under Article III, and are appropriately raised in a 1motion under Rule 12(b)(1). See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115,

2

1122 (9th Cir. 2010); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "A jurisdictional 3 challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting 4 extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 5

III. DISCUSSION 7

8 circumscribed by Article III of the United States Constitution, which extends federal judicial 9 power only to actual "Cases" and "Controversies." U.S. Const., art. III, § 2, cl. 1; Whitmore v. 10

Arkansas, 495 U.S. 149, 154-55 (1990). "Two components of the Article III case or 11 controversy requirement are standing and ripeness." Bova v. City of Medford, 564 F.3d 1093, 12

1096 (9th Cir. 2009). "The oft-cited Lujan v. Defenders of Wildlife case states the three 13 requirements for Article III standing: (1) an injury in fact that (2) is fairly traceable to the 14 challenged conduct and (3) has some likelihood of redressability." Public Lands for the 15

People, Inc. v. U.S. Dept. of Agriculture, 697 F.3d 1192, 1195-96 (9th Cir. 2012) (citing Lujan, 16

504 U.S. 555, 560-61 (1992)). The ripeness requirement is satisfied where there is a "live" 17 controversy. Regional Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974). 18

Both standing and ripeness are evaluated at the time the action is commenced.

19Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1170 (9th Cir. 2002) ("Standing is 20 determined as of the commencement of litigation."); Sierra Club v. U.S. Army Corps of Eng'rs, 21

446 F.3d 808, 814 (8th Cir. 2006) ("Jurisdictional issues such as standing and ripeness are 22 determined at the time the lawsuit was filed"). However, "[a]n actual controversy must be 23 extant at all stages of review, not merely at the time the complaint is filed." Bernhardt v. 24

County of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002). Thus, a legal dispute may become 25 moot, and hence, no longer justiciable, based on developments during the course of the lawsuit. 26

Already, LLC v. Nike, Inc., - U.S. -, 133 S.Ct. 721, 726 (2013) ("a case becomes moot- 27 and therefore no longer a 'Case' or 'Controversy' for purposes of Article III-'when the issues 28 2003).

Federal courts are courts of limited jurisdiction. The power to hear a particular case is 1presented are no longer "live" or the parties lack a legally cognizable interest in the 2 outcome.'") (quoting in part Murphy v. Hunt, 455 U.S. 478, 481 (1982)). 3

4

5 moots the instant controversy. A case can be rendered moot when the challenged statute or 6 regulation "is repealed, expires, or is amended to remove the challenged language." Log 7

Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir. 2011) (per curiam). This 8 principle, however, is inapposite under the facts presented.2 The City has not repealed the 9

A. MOOTNESS

The City's primary argument for dismissal is that its recent suspension of the Ordinance

Ordinance, nor has it removed its offending provisions. Rather, the City has left the Ordinance 10 intact and simply held it in abeyance until such time as the legal impediments to its 11 implementation no longer exist. Such a course of action is insufficient to moot a constitutional 12 challenge to a municipal ordinance. See Ballen v. City of Redmond, 466 F.3d 736, 741 (9th 13

Cir. 2006) (holding that a city's enactment of an interim ordinance rescinding the challenged 14 ban on commercial signage following an adverse district court ruling did not moot plaintiff's 15 constitutional challenge where the city indicated that it would re-enact the old ordinance if it 16 succeeded on appeal); see also Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 999 (7th 17

Cir. 2002) (holding that the city council's moratorium ceasing enforcement of challenged 18 ordinances until the "matter is resolved" did not moot constitutional challenge because the 19 moratorium was not permanent). Tellingly, the City fails to cite any authority holding that the 20 suspension of a statute-as opposed to its repeal-is sufficient to render a controversy moot. 21

B. STANDING AND RIPENESS

Accordingly, the Court rejects the City's contention that LSA's claims are moot.

24 enforced and is unlikely to be enforced due to its suspension, LSA cannot demonstrate that it 25 has Article III standing or that its claims are ripe. Mot. at 6-8. These contentions are 26

27 it also applies to municipal ordinances. The Court need not reach that dispute, because, even if it applies to an ordinance, the fact remains that the City has not repealed the 28

As an alternative matter, the City contends that because the Ordinance has not yet been

2 The parties also disagree whether this rule applies only to state statutes, or whether

Ordinance.

1misplaced. As noted, standing and ripeness are evaluated at the time the action is commenced 2 and are not obviated by subsequent developments in the action. See Flintkote Co. v. General 3

Acc. Assur. Co., 410 F. Supp. 2d 875, 882 (N.D. Cal. 2006). At the time LSA filed suit, the 4

Ordinance was slated to take effect on May 1, 2012. It was not until after LSA initiated this 5 lawsuit that the City voluntarily suspended the implementation of the Ordinance, initially 6 pursuant to a decision by the Director of the City's Department of the Environment, and more 7 recently, by the enactment of Environment Code section 2109. As such, because the City's 8 voluntary suspension of the Ordinance transpired subsequent to the filing of this action, the 9 suspension does not obviate LSA's jurisdictional authority to seek judicial relief through this 10 action. 11

C. SETTLEMENT CONFERENCE

In light of the Court's ruling above, further litigation appears inevitable. At the same

13 time, given the extant factual and legal landscape, there is no reason that parties acting 14 reasonably and in good faith would not be able to settle the action. Therefore, before investing 15 further resources into this dispute, the parties shall participate in a mandatory settlement 16 conference before Magistrate Judge Donna Ryu.3 The settlement conference shall take place 17 within forty-five (45) days of the date this Order is filed. In the event the action does not 18 resolve by way of settlement, the Court will enter a scheduling order regarding further motion 19 practice in this case. 20

IV. CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED THAT:

1. Defendants' Motion to Dismiss Complaint for Lack of Subject Matter

24Jurisdiction is DENIED. 25 26

3 Magistrate Judge Ryu is the assigned discovery judge, though no discovery

27 disputes have yet been presented to her. Any objections to Magistrate Judge Ryu presiding over the settlement conference shall be filed with the Court within two days of the date this 28

Order is filed.

2. The action is REFERRED to Magistrate Judge Donna Ryu for a mandatory

2 settlement conference to take place within forty-five (45) days of the date this Order is filed. 3

Any objections to Magistrate Judge Ryu presiding over the settlement conference shall be filed 4 with the Court within two (2) days of the date this Order is filed. In the event the action does 5 not settle, the parties shall jointly notify the Court forthwith. 6

3. This Order terminates Docket No. 186.

7

IT IS SO ORDERED.

20130131

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