Contest Promotions, LLC v. City & County of San Francisco

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                                                                           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                           NOT FOR PUBLICATION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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