LOS ANGELES—The Ninth Circuit U.S. Court of Appeals has denied AIDS Healthcare Foundation (AHF) and some of its employees their “streamlined request,” filed yesterday, for an extension of time for filing an Answer to Measure B plaintiff Vivid Entertainment’s appeal, filed on Sept. 17, of Judge Dean D. Pregerson’s order denying plaintiffs a temporary restraining order and allowing AHF to remain in the case, despite their complete lack of standing to do so.
“Streamlined request [28] by Appellee Michael Weinstein, Arlette De La Cruz, Whitney Engeran, Mark McGrath, Marijane Jackson, and the Campaign Committee Yes on Measure B to extend time to file the brief is not approved because streamline extensions do not apply to Preliminary Injunction appeals,” the Ninth Circuit ruled yesterday. “Appellees must file a Ninth Circuit Rule 31-2.2(b) motion.”
Of course, AHF, in its reply brief to Vivid’s arguments for both the temporary restraining order and its motion to remove AHF and its employees as intervenors in Vivid’s anti-Measure B lawsuit, had argued that while it may not have had standing in the case at the appellate or higher levels, thanks to the U.S. Supreme Court’s ruling in Hollingsworth v. Perry, it nonetheless argued that it did have standing at the trial court level. Hence, the current request to the appeals court for an extension of time to challenge Vivid’s appeal would seem to contradict AHF’s own estimation of its standing in the case.
In any case, Ninth Circuit Rule 31.2-2(b) requires that, “In all other cases, an extension of time may be granted only upon written motion supported by a showing of diligence and substantial need.”
According to the schedule set out by the Ninth Circuit, AHF’s answer was due to be filed within one month after the filing of the appeal, so its request for more time at this point might seem a bit premature—and in any case, it will have to show “substantial need” for the filing extension, and since one of the questions raised in Vivid’s appeal is whether AHF even has standing to file an appeal, the Ninth Circuit may take that argument into consideration even if AHF does file a formal motion for an extension of time.
