Free Reply to Response to Motion - District Court of California - California

Case 3:08-cv-00926-H-WMC

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1 MAYER BROWN LLP JOHN NADOLENCO (SBN 181128) 2 [email protected] CHRISTOPHER MURPHY (SBN 120048) 3 [email protected] 350 South Grand Avenue, 25th Floor 4 Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 5 Facsimile: (213) 625-0248 6 NEIL DYMOTT FRANK MCFALL & TREXLER APLC 7 MICHAEL I. NEIL [email protected] 8 1020 2nd Avenue, Suite 2500 San Diego, CA 92101-4959 9 Telephone: (619) 238-1712 Facsimile: (619) 238-1562 10 Attorneys for Plaintiff 11 BLACKWATER LODGE AND TRAINING CENTER, INC., dba BLACKWATER 12 WORLDWIDE 13 14 15 16 BLACKWATER LODGE AND TRAINING CENTER, INC., a Delaware 17 corporation dba BLACKWATER WORLDWIDE, 18 Plaintiff, 19 v. Case No. 08 CV 0926 H (Wmc) PLAINTIFF'S REPLY MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

20 KELLY BROUGHTON, in his capacity as Director of the Development Services 21 Department of the City of San Diego; Date: May 30, 2008 AFSANEH AHMADI, in her capacity as Time: 1:30 p.m. 22 Chief Building Official of the City of Place: Courtroom of the Honorable San Diego; THE DEVELOPMENT Marilyn L. Huff 23 SERVICES DEPARTMENT OF THE CITY OF SAN DIEGO; THE CITY OF 24 SAN DIEGO, a municipal entity; and DOES 1-20, inclusive, 25 Defendants. 26 27 28

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Defendants' Opposition to Blackwater's Ex Parte Application for a

2 Temporary Restraining Order is more noteworthy for what it does not say than 3 what it does. Defendants (collectively, the "City") no longer claim that Blackwater 4 Lodge and Training Center, Inc. dba Blackwater Worldwide ("Blackwater") was 5 required to follow a discretionary process, or that vocational schools or target 6 ranges are not proper in Otay Mesa. Instead, the City's opposition raises several 7 incorrect arguments and inaccurate innuendoes that Blackwater is compelled to 8 address. And significantly, the City fails to address dispositive issues raised by 9 Blackwater, thereby conceding them and making the requested relief appropriate. 10 See Day v. D.C. Dep't of Consumer & Regulatory Affairs, 191 F. Supp. 2d 154, 11 159 (D.D.C. 2002) ("If a party fails to counter an argument that the opposing party 12 makes in a motion, the court may treat that argument as conceded.") 13 First, contrary to the City's public position, the City's opposition does not 14 argue that discretionary approval is necessary to operate the proposed training 15 facility (referred to as a vocational school under the San Diego Municipal Code or 16 "SDMC"). Rather, the City claims that Blackwater failed to apply for a ministerial 17 permit to change the use of the existing structure from a warehouse to a training 18 facility. (Opp. at 6.) This argument suffers from two fatal flaws. First, the 19 General Application dated February 8, 2008, attached as Exhibit C-1 to the 20 Ahmadi Declaration and submitted by the City in support of its Opposition, 21 identifies the "Proposed Use" as "Training Facility." It also identifies the project 22 as adding an "indoor firing range," consistent with the law enforcement 23 training nature of the facility. Moreover, the Hazardous Material Questionnaire 24 included as Exhibit C-7 identifies the "business activities" of the facility as 25 "Training Facility for Law Enforcement." Clearly, the City was well aware of the 26 nature of the proposed use--and that only ministerial permits were needed. 27 28
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1 Ahmadi Dec., Exs. A-7, B-5, and C-9 (categorizing the permits at issue as 2 "ministerial"). 3 Furthermore, as vocational schools are permitted as a matter of right under 4 applicable zoning (see Blackwater's Ex Parte Application, pp. 10-12), the City 5 may not deny Blackwater a Certificate of Occupancy on these grounds. 6 Blackwater did not need the City's permission to use the Otay Mesa Facility in a 7 way that was an allowable use as a matter of right under the zoning restrictions. 8 SDMC § 1517.0301 allows "all uses permitted in the IH-2-1 zone" listed in § 9 131.0622. According to § 131.0622, a vocational/trade school is use permitted as 10 of right, without any approval required. Indeed, the City effectively reversed its 11 legal position between the time the City Attorney Office issued its legal opinion 12 and the time it drafted its Opposition. The City now claims only that an additional 13 ministerial permit submittal prevents occupancy. In doing so, the City concedes 14 that Blackwater is entitled, as a matter of law, to the certificate of occupancy, and 15 now simply seeks to delay occupancy. 16 Second, the City claims that Blackwater should have proceeded in state 17 court via mandamus. But this matter is squarely before this Court, which has 18 subject matter jurisdiction thereof under both diversity of citizenship and federal 19 question grounds (that is, Blackwater's constitutional claims and claims under 42 20 U.S.C. § 1983). Defendants have not offered any explanation for why this Court 21 does not have jurisdiction, because of course, this Court does. 22 Furthermore, federal courts sitting in diversity typically are required to apply 23 state law, and routinely enjoin local governmental officials who are not complying 24 with state law. See, e.g., Wal-Mart Stores, Inc. v. County of Clark, 125 F. Supp. 2d 25 420, 427 (D. Nev. 1999) (granting preliminary injunction against Clark County, 26 Nevada, finding that issuance of building permit was "a purely ministerial act"). 27 Federal courts likewise routinely enjoin local government officials under federal 28
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1 law. See, e.g., Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1060 (9th Cir. 2 2007) (reversing denial of request to enjoin the city, city council members and the 3 mayor to reinstate certain policies at a homeless shelter); Hurwitt v. City of 4 Oakland, 247 F. Supp. 995, 1007-09 (N.D. Cal. 1965) (enjoining mayor, the city 5 manager and the police chief from interfering with, or refusing to provide police 6 protection for, a Vietnam Day parade). When a plaintiff's federal rights have been 7 violated (or when diversity of citizenship properly brings a matter into the federal 8 court system), there is no need for plaintiff to proceed in state court. 9 Defendants' reference to mandamus also misses the point as to the 10 procedural status of this action: mandamus is the ultimate remedy in a state 11 superior court action under Code of Civil Procedure § 1085, but here, the relief 12 requested is a provisional or temporary remedy, that is, a temporary restraining 13 order. Nothing prevents a federal district court with subject matter jurisdiction 14 from granting the same relief as could be pursued in a state mandamus action.1 28 15 U.S.C. § 1651(a) ("The Supreme Court and all courts established by Act of 16 Congress may issue all writs necessary or appropriate in aid of their respective 17 jurisdictions and agreeable to the usages and principles of law"); Federal Rule of 18 Civil Procedure 65. 19 Third, the City claims Blackwater lacks standing to assert claims under 42 20 U.S.C. § 1983--but conceding that it has standing to assert its injunctive and 21 declaratory relief claims under state law. However, since the City's conduct in 22 refusing to send the Certificate of Occupancy as required by the SDMC is causing 23 a direct, concrete and irreparable injury to Blackwater, it has standing to assert its 24 claims. Article III requires three elements for standing: (1) a threatened or actual 25 distinct and palpable injury to the plaintiff; (2) a fairly traceable causal nexus 26 between the alleged injury and the defendant's challenged conduct; and (3) a 27 28
1

Indeed, the relief Blackwater requested in its first cause of action was akin to mandamus.
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1 substantial likelihood that the requested relief will redress or prevent the injury. 2 McMichael v. County of Napa, 709 F.2d 1268, 1270 (9th Cir. 1983). All three 3 elements are clearly fulfilled here. Indeed, the City's letter (by Defendant 4 Broughton) announcing it would not send the Certificate of Occupancy is 5 addressed to Blackwater. Bonfiglio Dec. Ex. I. The City knew exactly whose 6 interests were at stake and whose constitutional rights it was infringing. 7 Fourth, the City suggests that Blackwater cannot rely on the permits because 8 they were applied for by other entities. This has been a red herring since the 9 beginning. All of the entities that applied had a legal right to apply for the permits. 10 See SDMC §112.0102(a)(3) (allowing permit application by anyone with "interest 11 or entitlement to the use of the property"). Indeed, it is customary for contractors 12 to apply for permits and Certificates of Occupancy on behalf of their clients. 13 Declaration of Joseph Bohac filed concurrently herewith. Once approved, the 14 permits and Certificates of Occupancy relate to the facility, not an individual or 15 entity. Indeed, the City's paperwork shows as much. Ahmadi Dec., Ex. C-1 16 ("project title" is "Southwest Law Enforcement") and Ex. C-3 (permitted "issued 17 to Raven Development"). Were this not the case, every homeowner that wished to 18 remodel his or her house, would be forced to wait in line at Development Services 19 to apply for the permit in his or her name. And when that homeowner moved, the 20 new owner would need to renew the permits. The City's argument is, at best, 21 disingenuous. 22 Fifth, the City claims that Blackwater did not obtain a permit for its ship 23 simulator. This Court should disregard this after-the-fact justification that was not 24 a reason relied upon by the City in its refusal to send Blackwater its Certificate of 25 Occupancy. Bonfiglio Dec. Ex. I (May 19, 2008 letter from Defendant 26 Broughton). Nonetheless, Blackwater has long been discussing the issue of the 27 ship simulator with the City. The simulator is in a section of the facility that 28
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1 Blackwater plans as a future use. A "future use area" never affects the permits for 2 the rest of a facility. It is akin to identifying on plans for a house that the 3 homeowner plans to add a swimming pool later. The City cannot avoid issuing a 4 Certificate of Occupancy today because of questions it may have as to a potential 5 future use. Thus, even if an additional permit is required for the simulator, that 6 should not affect Blackwater's ability to occupy and use the rest of the facility for 7 vocational instruction (including the target range). 8 Lastly, the City claims that Blackwater has not established irreparable harm. 9 But the City offered no rebuttal to Blackwater's evidence on this subject. The City 10 does not deny that it has treated other vocational schools and target ranges 11 differently than it treated Blackwater; thus, Blackwater has established at least a 12 prima facie case for violation of the equal-protection and dormant-commerce 13 clauses. The record also clearly shows that the City is using manufactured, after14 the-fact justifications to try to deny Blackwater's vested rights, without providing 15 Blackwater with due process. The City does not claim otherwise. These 16 constitutional violations are enough to show irreparable harm. See Blackwater's 17 Ex Parte Application at 21:5-19. Moreover, Blackwater's harm is not "strictly 18 monetary." Opp. at 8:4. Its reputation likely will be severely damaged and, 19 despite the City's unsupported contention to the contrary, courts routinely grant 20 injunction relief because reputational harm often is difficult, if not impossible, to 21 quantify. See, e.g., United Healthcare Ins. Co. v. AdvancePCS, 316 F.3d 737, 741 22 (8th Cir. 2002) (damage to reputation can constitute irreparable injury, especially if 23 damages would be uncertain or inadequate).2 24 / / / 25 26 27 28
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The City also incorrectly argues that San Diego City College is providing SRF-B training. Opp. at 8:11-18. It is not; Blackwater is. San Diego Community College is providing SRF-A training, which does not include live firearms training.
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In sum, none of the City's assertions have merit and Blackwater is entitled to

2 its requested relief. 3 DATED: May 29, 2008 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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MAYER BROWN LLP JOHN NADOLENCO CHRISTOPHER MURPHY s/John Nadolenco John Nadolenco Attorneys for Plaintiff BLACKWATER LODGE AND TRAINING CENTER, INC., dba BLACKWATER WORLDWIDE By:

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