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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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10 CALIFORNIA COASTAL COMMISSION, Case No.: 22cv00587-LL-BGS 11 a California public agency, Related Case: 22cv00503-LL-BGS 12 Petitioner/Plaintiff,

ORDER:

13 v. 14 (1) TO SHOW CAUSE RE:

NORTH COUNTY TRANSIT DISTRICT,

CONSOLIDATION;

15 a California public agency; Does 1 through

25, 1 (2) STAYING CASE SUA SPONTE; 16

Respondents/Defendants, (3) GRANTING-IN-PART JOINT 17

MOTION TO EXTEND TIME

EXBON DEVELOPMENT, INC., a 18 TO RESPOND TO California corporation; and DOES 26 COMPLAINT; and 19 through 50, inclusive,

20 Real Parties in Interest/ (4) DENYING JOINT MOTION TO Defendants STAY RULING ON MOTION 21

TO STAY

22 [ECF No. 6] 23

24 1 The Federal Rules of Civil Procedure (“FRCP”) neither authorize nor prohibit the use of fictitious parties; however, FRCP 10 does require a plaintiff to include the names of 25 all parties in his complaint. Rojas v. Sea World Parks & Ent., Inc., 538 F. Supp. 3d 1008, 26 1030-31 (S.D. Cal. 2021) (Benitez, J.). The complaint includes allegations against Does 1 through 10. Naming doe defendants further implicates Rule 4 of the FRCP requiring 27 service of the complaint. All doe defendants are dismissed without prejudice for want of 1 I. INTRODUCTION 2 Plaintiff, the California Coastal Commission, a California public agency 3 (“Petitioner” or the “Commission”), brings this petition for a writ of mandate against 4 Defendants the North County Transit District, a California public agency (the “NCTD”). 5 ECF No. 1. 6 Before the Court are the (1) the NCTD’s Motion to Stay, ECF No. 4; (2) Joint Motion 7 to Extend Time to Answer or Otherwise Respond to the Complaint, ECF No. 6; and (3) the 8 Joint Motion to Stay the Court’s Ruling on the Motion to Stay, ECF No. 10. After 9 considering the papers submitted, supporting documentation, and applicable law, the Court 10 (1) GRANTS the Motion to Stay sua sponte; (2) GRANTS-IN-PART the Joint Motion to 11 Extend the Deadline to Respond to the Complaint; and (3) DENIES the Joint Motion to 12 Stay the Court’s Ruling on the Motion to Stay as moot. 13 II. BACKGROUND 14 A. Statement of Facts 15 Petitioner alleges that the NCTD has violated California’s environmental laws by 16 planning to move forward with construction of up to six-foot high fences, including 17 welded wire, chain link, and post and cable fencing types, in segments along nearly a 18 mile of the coastal bluffs in the City of Del Mar (the “Project”). ECF No. 1-2 at 8, ¶ 1. 19 Among other allegations, Petitioner alleges that (1) the NCTD failed to comply with the 20 California Environmental Quality Act, Cal. Pub. Resources Code §§ 21000 et seq. (the 21 “CEQA”) before initiating its development Project and (2) the actions of the NCTD 22 along with Exbon Development, Inc. (“Exbon”) to pursue the Project without first 23 obtaining a coastal development permit pose threatened and imminent violations of the 24 California Coastal Act of 1976, Public Resources Code, §§ 30000 et seq. (the “Coastal 25 Act”). ECF No. 1-2 at 8, ¶ 1. 26 B. Procedural History 27 1. The STB Action On August 28, 2020, the NCTD filed a Verified Petition in Washington, D.C. 1 with the Surface Transportation Board (the “STB”), the federal independent regulatory 2 agency charged with the economic regulation of the national railroad system. ECF No. 3 1-2 at 27-75; see also ECF No. 4-1 at 2:13-16; RVA,2 ECF No. 8-1 at 2:27-3:2. The 4 NCTD sought declaratory relief that 49 U.S.C. § 10501(b) of the Interstate Commerce 5 Commission Termination Act of 1995 (the “ICCTA”) preempts any state and local 6 permitting regime to regulate the NCTD’s rail line, including the Coastal Act, with 7 respect to any current or future projects that NCTD undertakes in the railroad right-of- 8 way, including the safety fencing project. See Finance Docket No. 36433 (Aug. 28, 9 2020) (the “STB Action”). ECF No. 4-1 at 13-24. 10 On November 6, 2020, the NCTD filed a motion to hold the STB Action in 11 abeyance while the parties attempted a resolution. ECF No. 4-1 at 2:26-3:1. The STB 12 granted the request, staying the case until March 30, 2021, at which time the NCTD was 13 required to file a status update. Id. at 3:2-3. On March 29, 2021, the NCTD filed a 14 status update advising that the parties were still attempting to reach a resolution and 15 requested a further abeyance until December 31, 2021, which the STB granted. Id. at 16 3:3-8. 17 On December 31, 2021, the NCTD filed its next required status update, which (1) 18 advised that despite significant efforts, the parties had been unable to reach a resolution, 19 and (2) asked the STB to proceed with the STB Action in an expedited manner to resolve 20 the disputes at issue. ECF No. 4-1 at 3:11-15. This request is still pending. Id. at 3:14- 21 15. 22 2. The Reverse Validation Action 23 On March 21, 2022, due to the inability to reach a resolution in the STB Action, 24 Plaintiffs commenced suit against five defendants, including the NCTD, by filing a 25 petition for writ of mandate and complaint in the San Diego Superior Court, Case No. 26 37-2022-00011260-CU-WM-CTL (the “Reverse Validation Action”). The complaint

27 2 RVA shall refer to the docket in the Reverse Validation Action, infra, Case No. 37- 1 alleged four causes of action under California state law: (1) declaratory relief regarding 2 breach of the Grant Agreement between the NCTD and California State Transportation 3 Agency (“CalSTA”) (against Defendant NCTD); (2) declaratory relief regarding breach 4 of the covenant of good faith and fair dealing arising from the Grant Agreement (against 5 Defendant NCTD); (3) quiet title as to the public easement to use trails on the Upper 6 Bluff (against all Defendants); and (4) invalidity and illegality of NCTD’s actions 7 (against all Defendants). RVA, ECF No. 1 at 3, ¶ 4. 8 On April 12, 2022, Defendants NCTD and Tucker removed on the basis that 9 although Plaintiffs’ complaint alleged state law claims only, at least some, if not all, of 10 the claims at issue are completely preempted by the ICCTA, 49 U.S.C. §§ 10101 et seq., 11 because the NTCD qualifies as a common carrier. RVA, ECF No. 1 at 3-4, ¶ 6. 12 On April 18, 2022, Plaintiffs sought to serve the unknown defendants by 13 publication, RVA, ECF No. 5, which the Court granted in part on April 26, 2022, RVA, 14 ECF No. 6. 15 On May 3, 2022, Defendants NCTD and Matthew Tucker filed a motion to 16 dismiss for failure to state a claim for relief. RVA, ECF No. 7. 17 On May 10, 2022, Defendants also filed a Motion to Stay the case, arguing that 18 judicial efficiency would best be served by staying this case until the STB determines 19 the preemption issues. RVA, ECF No. 8-1. 20 3. The Petition for Writ of Mandate Action 21 On April 19, 2022, Petitioner commenced this action by filing a petition for writ of 22 mandate and complaint against the NCTD in the San Diego Superior Court, Case No. 37- 23 2022-00014504-CU-MC-CTL (the “Petition Action”). ECF No. 1-2 at 7. The complaint 24 alleged causes of action for (1) violation of CEQA; (2) violation of the Coastal Act as to 25 all Defendants, Cal. Pub. Resources Code § 30600; and (3) violation of the Cease and 26 Desist Order by the NCTD, Cal. Pub. Resources Code § 30803 and 30809. See id. 27 Petitioner seeks a writ of mandate directing the NCTD to (i) set aside and withdraw its approval of construction of the fencing along the coastal bluff in Del Mar; (ii) cancel its 1 contract with Exbon for construction of the fencing; and (iii) refrain from taking on any 2 other activities in furtherance of construction of the fencing until it complies with the 3 CEQA. ECF No. 1-2 at 18-19, ¶ A. 4 On April 21, 2022, Plaintiff served the NCTD with the summons and complaint. 5 ECF No. 6 at 1:25-26. On April 26, 2022, the NCTD removed this action, meaning the 6 NCTD’s deadline to respond to the complaint was May 12, 2012. ECF No. 6 at 1:27-2:2; 7 see also Fed. R. Civ. P. 81(c)(2). Also on April 26, 2022, the NCTD filed a Request for 8 Judicial Notice in support of the Notice of Removal, asking the Court to take judicial notice 9 of the NCTD’s Petition for Declaratory Order (the “Verified Petition”). See ECF No. 2 at 10 1.3 11 On May 20, 2022, Exbon consented to removal. ECF No. 7 12 On April 29, 2022, the NCTD filed a motion to stay proceedings until the STB issues 13 a ruling on its Verified Petition for Declaratory Order, filed on August 28, 2020, which is 14 set to be heard on June 17, 2022 at 1:30 p.m. ECF No. 6 at 2:3-7; see also ECF No. 4. 15 On May 12, 2022, Plaintiff and the NCTD filed a Joint Motion to Extend Time to 16 Answer or Otherwise Respond to Complaint. ECF No. 6. On May 27, 2022, Plaintiff and 17 the NCTD also filed a Joint Motion to Stay the NCTD’s Motion for a Stay Until After the 18 Court Decides the Motion to Remand. ECF No. 10. 19 / / / 20 3 At any stage of a proceeding, courts may take judicial notice of (1) facts not subject 21 to reasonable dispute and “generally known within the trial court’s territorial jurisdiction” 22 and (2) adjudicative facts, which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2) see also 23 Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290, fn. 1 (9th Cir. 1996) (taking 24 judicial notice of court records). The NCTD asks the Court to take judicial notice of the Verified Petition but does not ask the Court to take judicial notice of any particular facts, 25 such as the date on which the Verified Petition was filed or who filed it. However, the 26 Court GRANTS-IN-PART the request for judicial notice because the documents, namely, the Verified Petition, are public records not subject to reasonable dispute. The Court 27 DENIES-IN-PART the request to the extent it seeks to take judicial notice of any of the 1 III. DISCUSSION 2 A. Order to Show Cause Regarding Consolidation 3 A court may consolidate cases which “involve a common question of law or fact.” 4 Fed. R. Civ. P. 42(a). “In determining whether or not to consolidate cases, the Court should 5 weigh the interest of judicial convenience against the potential for delay, confusion and 6 prejudice.” Hessefort v. Super Micro Computer, Inc., 317 F. Supp. 3d 1056, 1060 (N.D. 7 Cal. 2018) (quoting Zhu v. UCBH Holdings, Inc., 682 F.Supp.2d 1049, 1052 (N.D. Cal. 8 2010)) (internal quotations omitted). 9 Here, this case along with the Reverse Validation Action both concern mostly the 10 same parties, involve common questions of law (e.g., the propriety of the whether the 11 Project should go forward), and concern common issues of fact (e.g., the Bluffs). Thus, 12 the Court sets an order to show cause as to why the Petition Action and Reverse Validation 13 Actions should not be consolidated. The parties should submit briefing on this issue 14 according to the deadlines set out below. Should the parties agree to consolidation, they 15 may submit a Joint Stipulation to Consolidation at any date. 16 B. Joint Motion to Extend 17 Rule 81 of the FRCP requires that after removal, a defendant who has not yet filed 18 a responsive pleading must do so within the longer of either “(1) 21 days of receiving— 19 through service or otherwise—a copy of the initial pleading stating the claim for relief; (2) 20 21 days after being served with the summons for an initial pleading on file at the time of 21 service, or (3) 7 days after the notice of removal is filed.” “In the Southern District, court 22 approval is required for any extension of time to answer or move to dismiss the complaint.” 23 Phillips, Virginia A., et al., Rutter Group Prac. Guide: Fed. Civ. Pro. Before Trial, § 8:913 24 (The Rutter Group April 2020); see also CivLR 12.1. 25 The NCTD’s deadline to respond to the complaint was May 12, 2022, pursuant to 26 FRCP 81(c)(2). ECF No. 6 at 2:1-2. The parties indicate that the extension at issue will 27 preserve time and resources for the Court by extending the deadlines to respond until the Court decides the pending motion to stay and Plaintiff’s forthcoming motion to remand. 1 Id. at 2:13-16. The parties also agree that no default will be taken against Defendants prior 2 to the expiration of the requested extension set forth above or while the joint motion is 3 pending. Id. at 3:8-10. 4 Plaintiff and the NCTD indicate they have agreed to extend the deadline for NCTD 5 to respond to the complaint until: (1) if, upon Plaintiff’s Motion to Remand, the Court 6 issues an Order remanding the case back to state court, within ten days after the Court 7 enters the Order for remand; (2) if the Court denies the Motion to Remand and also denies 8 the Motion to Stay, within ten days after the Court enters the Order denying the Motion to 9 Stay; or (3) if the Court denies the Motion to Remand and grants the Motion to Stay, within 10 ten (10) days after the stay is lifted. ECF No. 6 at 2:17-23. The NCTD confirms it has 11 informed Exbon of the stipulation, and Exbon had no objection. Id. at 2:24-25. Further, 12 no extensions have previously been requested. Id. at 2:26. 13 The Court finds good cause exists for the requested extension and GRANTS the 14 request to extend the NCTD’s time to respond to the complaint as set for the below. 15 C. Motion to Stay the Validation Action and Petition Action 16 A court’s power to stay proceedings is incidental to the inherent power to control the 17 disposition of its cases in the interests of efficiency and fairness to the court, counsel, and 18 litigants. Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936). A stay may be granted 19 pending the outcome of other legal proceedings related to the case in the interests of judicial 20 economy. Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979). 21 Discretion to stay a case is appropriately exercised when the resolution of another matter 22 will have a direct impact on the issues before the court, thereby substantially simplifying 23 the issues presented. Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 24 (9th Cir. 1983). In determining whether a stay is appropriate, a district court “must weigh 25 competing interests and maintain an even balance.” Landis, 299 U.S. at 254-55. “[I]f there 26 is even a fair possibility that the stay … will work damage to some one else, the stay may 27 be inappropriate absent a showing by the moving party of hardship or inequity.” Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 1 2007) (citation and internal quotation marks omitted). 2 In determining whether a stay is appropriate, a federal court considers the (1) 3 “possibility damage may result from the granting of a stay,” (2) “hardship or inequity which 4 a party may suffer in being required to go forward,” and (3) “orderly course of justice 5 measured in terms of the simplifying or complicating of issues, proof, and questions of law 6 which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 7 (9th Cir. 1962) (citing Landis, 299 U.S. at 254-55). 8 The Court agrees that a stay is appropriate to allow the STB to determine the 9 preemption issues pertaining to both cases. Although the Court has not heard from 10 Defendants regarding their position with respect to the stay, the Court has power to stay a 11 case sua sponte, even in the absence of a motion to stay. S.E.C. v. Nicholas, 569 F. Supp. 12 2d 1065, 1072-73 n.9 (C.D. Cal. 2008). First, the possibility of the stay poses little danger 13 given the stay will be brief in light of the STB’s pending hearing on June 17, 2022. Second, 14 little hardship or inquiry will result given the brevity of the stay. Third, the orderly course 15 of justice measured in terms of simplifying issues is served by allowing the STB to 16 determine the preemption issues. 17 In sum, the Court has the power to stay matters sua sponte and exercises that power 18 in the vein of judicial economy to avoid two different federal entities (i.e., this District 19 Court and the STB) from determining the same issues as the pleadings in this case indicate 20 that the parties disagree over preemption and whether the ICCTA creates a basis for 21 removal in this case. 22 Thus, the Court GRANTS the motion to stay the case until the STB’s ruling. 23 D. Joint Motion to Stay the Court’s Ruling on the Motion to Stay 24 Plaintiff and the NCTD also argue that (1) if the Court denies the Motion to Remand, 25 Plaintiff’s deadline to respond to the NCTD’s Motion to Stay should be continued until 26 five (5) days after the Court enters an Order denying Plaintiff’s Motion to Remand; (2) if 27 the Court grants Plaintiff’s Motion to Remand, the NCTD’s Motion to Stay shall be deemed withdrawn and NCTD may file a new motion requesting a stay in state court, if it so desires; 1 and (3) the Court shall not deem Plaintiff to be in default or to have consented to NCTD’s 2 Motion to Stay as it stands pursuant to Civil Chambers Rule 3(J) before the expiration of 3 the requested extension set forth above or while this Joint Motion remains pending. ECF 4 No. 10 at 3:12-23. Because the Court finds it appropriate to stay the case sua sponte, the 5 Court DENIES this request as moot. See, e.g., Tur v. YouTube, Inc., 562 F.3d 1212, 1214 6 (9th Cir. 2009) (concluding “that an issue is moot when deciding it would have no effect 7 within the confines of the case itself”). 8 IV. CONCLUSION 9 For the above reasons, the Court ORDERS as follows: 10 1. The Motion to Stay is GRANTED. This case shall be stayed until the STB 11 decides the preemption issues. The parties shall provide the Court with a joint notice of 12 the STB’s decision within five (5) calendar days of the decision. 13 2. Upon receipt of the STB’s decision, the Court will address Plaintiff’s pending 14 motion to remand as judicial economy warrants addressing jurisdictional issues in this case 15 first. The parties’ Joint Motion to Extend the Time to Respond is GRANTED-IN-PART 16 as follows: 17 Item: Current Deadline: Revised Deadline: 18 ORDER TO SHOW CAUSE RE: CONSOLIDATION: 19 N/a N/a Thursday, June 9, 2022 20 N/a N/a Thursday, June 16, 2022 21 MOTION TO STAY 22 Opposition: Friday, June 3, 2022 Not applicable. The Court 23 Reply: Friday, June 10, 2022 stays the case sua sponte. 24 MOTION TO REMAND 25 Opposition: Friday, June 17, 2022 Within ten (10) court days 26 of filing the notice of the 27 STB decision with Court. 1 ||| Reply: Friday, June 24, 2022 Within ten (15) court days 2 of filing the notice of the 3 STB decision with Court.

5 ||| Deadline to Respond to May 12, 2022 Within ten (10) court days = = 7 motion to remand. g 3. The Court will not set the deadline for Defendant to respond in the superior g ||court if the Motion to Remand is granted because the Court will lack jurisdiction over this 10 || case if it is appropriate for remand. 11 4. The Court DENIES the Joint Motion to Stay the Court’s ruling on the Motion 12 Stay as moot. 13 5. No default shall be filed or taken against Defendants prior to the expiration of 14 || the requested extension set forth above or while any of the joint motions currently at issue 15 been pending. 16 IT IS SO ORDERED. 17 || DATED: June 2, 2022

HON. LINDA LOPEZ

18 United States District Judge 19 20 21 22 23 24 25 26 27 28 10