Contest Promotions v. City & County of San Francisco , 695 F. App'x 322 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONTEST PROMOTIONS, LLC, No. 17-15213
Plaintiff-Appellant, D.C. No. 3:16-cv-06539-SI
v.
MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Submitted July 12, 2017 **
San Francisco, California
Before: GRABER and FRIEDLAND, Circuit Judges, and MARSHALL,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Consuelo B. Marshall, Senior United States District Judge
for the Central District of California, sitting by designation.
Pursuant to 28 U.S.C. § 1292(a)(1), which permits appellate review of
interlocutory orders denying injunctions, Plaintiff Contest Promotions, LLC,
appeals the denial of its motion for a preliminary injunction. In its initial
complaint, Plaintiff argued that Article 6 of the San Francisco Planning Code
violates the First Amendment and that the accrual of penalties while Plaintiff
mounted its First Amendment challenge violates Ex Parte Young, 209 U.S. 123(1908). The district court denied Plaintiff’s motion for a preliminary injunction,
and Plaintiff timely appealed.
After filing this appeal, Plaintiff filed a first amended complaint alleging the
same theories. Defendant City and County of San Francisco moved to dismiss for
failure to state a claim, and the district court granted Defendant’s motion. In an
opinion filed this date, we affirm that dismissal. Accordingly, we dismiss this
interlocutory appeal as moot. See Bhd. of Maint. of Way Emps. Div./IBT v. BNSF
Ry., 834 F.3d 1071, 1076 (9th Cir. 2016) (noting that "subsequent entry of the final
judgment in the case mooted the question of the procedural propriety of the
preliminary injunction"); Sec. & Exch. Comm’n v. Mount Vernon Mem’l Park,
664 F.2d 1358, 1361–62 (9th Cir. 1982) (dismissing appeal from denial of
preliminary injunction where the district court subsequently dismissed the relevant
count of the complaint for failure to state a claim and appeal of that dismissal was
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before the court); see also Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d
1071, 1075 (9th Cir. 2001) ("[I]nterlocutory orders entered prior to the judgment
merge into the judgment.").
APPEAL DISMISSED.
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