
    CONTEST PROMOTIONS, LLC, Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant-Appellee.
    No. 17-15213
    United States Court of Appeals, Ninth Circuit.
    Submitted July 12, 2017  San Francisco, California
    Filed August 16, 2017
    
      Michael Floyd Wright, Esquire, Attorney, Law Office of Michael F. Wright, Los Angeles, CA, for Plaintiff-Appellant
    James Moxon Emery, San Francisco City Attorney’s Office, San Francisco, CA, Thomas S. Lakritz, Esquire, Attorney, City Attorney’s Office, City and County of San Francisco, San Francisco, CA, for Defendant-Appellee
    Before: GRABER and FRIEDLAND, Circuit Judges, and MARSHALL, District Judge.
    
      
       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.
    
   MEMORANDUM

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, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The district court denied Plaintiffs 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 before the court); see also Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1075 (9th Cir. 2001) (“[interlocutory orders entered prior to the judgment merge into the judgment.”).

APPEAL DISMISSED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     