09-0195-cv
Automobile Club of N.Y., Inc. v. Dykstra
                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 2 nd day of December, two thousand nine.

PRESENT:             REENA RAGGI,
                     PETER W. HALL,
                                          Circuit Judges,
                 BRIAN M. COGAN,*
                                          District Judge.
-------------------------------------------------------------------
AUTOMOBILE CLUB OF NEW YORK, INC.,

                                           Plaintiff-Appellant,
                                v.                                      No. 09-0195-cv

GRETCHEN DYKSTRA, as commissioner of the
Department of Consumer Affairs of the City of New
York, CITY OF NEW YORK,

                                          Defendants-Appellees.
---------------------------------------------------------------------




          *
         District Judge Brian M. Cogan of the United States District Court for the Eastern
District of New York, sitting by designation.
APPEARING FOR APPELLANT:                   ERACH F. SCREWVALA, Robinson, Brog,
                                           Leinwand, Greene, Genovese & Gluck, P.C., New
                                           York, New York.

APPEARING FOR APPELLEES:                   MORDECAI NEWMAN (Larry A. Sonnenshein,
                                           on the brief), for Michael A. Cardozo,
                                           Corporation Counsel of the City of New York,
                                           New York, New York.


         Appeal from the United States District Court for the Southern District of New York

(Sidney H. Stein, Judge).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on December 24, 2008, is

REVERSED in part and the case REMANDED for further proceedings consistent with this

order.

         Plaintiff Automobile Club of New York, Inc. (“Auto Club”) appeals from the district

court’s judgment, which, inter alia, (1) barred, on preemption grounds, enforcement of New

York City’s tow truck licensing scheme (the “Scheme”) against all non-resident tow

companies except those picking up disabled vehicles from the City, and (2) awarded Auto

Club $651,856 in attorneys’ fees and $6,293.98 in expenses in accordance with a November

3, 2006 order, as well as fees and expenses not covered by that order in an amount to be

determined. We review a district court’s determination as to preemption de novo, see Pacific

Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 351 (2d Cir. 2008), as we do its award of

post-judgment interest under 28 U.S.C. § 1961, see Westinghouse Credit Corp. v. D’Urso,

371 F.3d 96, 100 (2d Cir. 2004). In doing so, we assume the parties’ familiarity with the



                                              2
facts and the record of prior proceedings, which we reference only as necessary to explain

our decision.

       1.       Scope of Preemption

       Auto Club submits that the district court’s judgment impermissibly narrowed the

scope of an earlier post-trial opinion and order issued in the case and upheld by this court on

appeal. We agree.

       In Automobile Club of New York, Inc. v. Dykstra, 423 F. Supp. 2d 279 (S.D.N.Y.

2006), the district court found three extraterritorial applications of the Scheme preempted by

49 U.S.C. § 14501: (1) application of the Scheme to non-resident tow companies passing

through the City, (2) application of the Scheme to non-resident tow companies entering the

City to pick up a vehicle, and (3) application of the Scheme to non-resident tow companies

entering the City to drop off a vehicle. See id. at 285, 287. On appeal, we affirmed the

district court’s decision without qualification. See Automobile Club of N.Y., Inc. v. Dykstra,

520 F.3d 210, 212 (2d Cir. 2008) (“We affirm, holding that the enforcement of the City’s

licensing Scheme against out-of-City tow truck operators is preempted by 49 U.S.C.

§ 14501(c)(1).”); id. at 217. Given the absence of any decretal language to the contrary, our

affirmance is properly construed as upholding preemption of all extraterritorial applications

of the Scheme foreclosed by the district court, including application of the Scheme to non-

resident tow companies conducting pick-ups in the City.

       The City argues that the district court’s 2008 judgment properly reflects the view that,

while non-resident towers passing through New York City with a car in tow and those towing


                                              3
a car into the City pose no threat of “chasing,” non-resident towers seeking to pick up a

disabled vehicle in the City do pose such a threat. The district court’s 2006 opinion and

order, however, was not so confined. It expressly concluded that the City’s proffered safety

justification – which, at trial, had little to do with chasing and everything to do with

protecting consumers from suffering crimes at the hands of tow truck drivers – could not

provide a basis for “prohibit[ing] legitimate tow trucks from elsewhere from entering New

York City to pick up a tow.” Automobile Club of N.Y., Inc. v. Dykstra, 423 F. Supp. 2d at

284-85. Moreover, in construing the safety justification at issue as the elimination of

chasing, this court determined that, because the City “chose to impose [the] Scheme on all

tow trucks that happened to be within its limits, regardless of whether they were chasing,”

and because it did so without articulating any reason why such broad enforcement was

necessary, the Scheme was not genuinely responsive to safety concerns related to chasing.

Automobile Club of N.Y., Inc. v. Dykstra, 520 F.3d at 216-17.

       That we did not specifically reference non-resident tow companies picking up disabled

vehicles in explaining why the City’s enforcement was too broad, see id. at 217, does not

exclude those companies from the reach of our holding. The examples we employed were

intended to be illustrative, not exhaustive. Thus, because the district court concluded that

extraterritorial application of the Scheme was preempted not only as to non-resident tow

companies passing through the City or entering the City to drop off disabled vehicles, but

also as to non-resident tow companies entering the City to pick up disabled vehicles, and

because this court unequivocally affirmed that conclusion, the district court could not


                                             4
thereafter exclude non-resident tow companies conducting pick-ups from the scope of

preemption outlined in its judgment.

       2.     Post-Judgment Interest

       Auto Club submits that the district court erred in failing to provide for the payment

of post-judgment interest on its award of attorneys’ fees and expenses. We decline to address

this argument for lack of ripeness. “Two factors inform our analysis of prudential ripeness:

1) the fitness of the issues for judicial decision; and 2) the hardship to the parties of

withholding court consideration.” Ehrenfeld v. Mahfouz, 489 F.3d 542, 546 (2d Cir. 2007)

(internal quotation marks and citation omitted). Although the district court awarded Auto

Club certain fees and expenses not covered by its November 2006 order, it deferred

calculation of those fees and expenses and has, therefore, not made a conclusive ruling

regarding Auto Club’s claimed entitlement to post-judgment interest. As we discern no

hardship arising from our withholding consideration of this question, we remand for the

district court to determine in the first instance whether Auto Club is entitled to post-judgment

interest and, if so, the method by which such interest is properly calculated.

       3.     Conclusion

       For the foregoing reasons, the judgment of the district court is REVERSED in part,

and the case is REMANDED for further proceedings consistent with this order.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court

                                    By:




                                               5
