3Pak LLC v. City of Seattle
| Docket Number | C23-0540 TSZ |
| Decision Date | 29 August 2023 |
| Parties | 3PAK LLC d/b/a OMA BAP, Plaintiff, v. CITY OF SEATTLE, Defendant. |
| Court | U.S. District Court — Western District of Washington |
THIS MATTER comes before the Court on a motion to dismiss, docket no. 17, brought by defendant City of Seattle (the “City”). Having reviewed all papers filed in support of, and in opposition to, the motion, the Court determines that oral argument is unnecessary and enters the following Order.
This action arises from the City's response to the Capitol Hill Organized Protest (“CHOP”) in June 2020. Compl. at ¶ 1 (docket no. 1). Plaintiff 3Pak LLC d/b/a Oma Bap (“Oma Bap”) is a Korean restaurant located at 1640 11th Avenue, directly across the street from Cal Anderson Park in Seattle's Capitol Hill neighborhood. Id. at ¶¶ 14, 32. Counsel and the Court are well acquainted with the City's response to CHOP which was the subject of prior litigation involving multiple property owners, businesses, and residents in the Capitol Hill neighborhood who alleged that the City's support encouragement, and endorsement of CHOP violated their legal rights. See Hunters Capital, LLC v. City of Seattle No. C20-983 TSZ (W.D. Wash.) [hereinafter the “Hunters Capital matter”].[1] Notably, Oma Bap brings several of the same claims that this Court heard in the Hunters Capital matter, namely (i) violation of substantive due process, (ii) taking under “per se” and “right of access” theories of liability, (iii) negligence, and (iv) nuisance.[2] Compl. at ¶¶ 90-118. Like the plaintiffs in the Hunters Capital matter, Oma Bap alleges that the City's “support, encouragement, and endorsement” of CHOP violated its rights and caused it significant financial harm. See id. at ¶¶ 10, 66-76.
As this Court has discussed in great detail in its orders in the Hunters Capital matter, CHOP began on June 8, 2020 when the City “abruptly deserted” the Seattle Police Department's East Precinct, located at 12th Avenue and East Pine Street, amid ongoing civil rights protests. See id. at ¶¶ 3, 18. After the City “abandoned the precinct,” protesters repurposed barriers that police had left behind and blocked public streets and sidewalks in the surrounding area. Id. at ¶¶ 4, 19-20. In the days and weeks that followed, the CHOP area expanded to an approximately 16-block portion of the Capitol Hill neighborhood. Id. at ¶¶ 5, 20-22. CHOP'S unofficial boundaries allegedly extended from East Denny Way (to the north), Thirteenth Avenue (to the east), East Pike Street (to the south), and Broadway (to the west). Id. at ¶ 22. Oma Bap alleges that the City provided Cal Anderson Park, a public park located at the center of the CHOP area, as a staging ground for protest activities. Id. at ¶ 6. As a result, Cal Anderson Park was “transformed into a massive tent city for CHOP participants.” Id. at ¶ 33.
According to Oma Bap, the City supported CHOP and its participants by placing large dumpsters and portable toilets at the intersection of Eleventh Avenue and Olive Street, “just outside” Oma Bap's front door. Id. at ¶ 64. The City's placement of these dumpsters and portable toilets resulted in the accumulation of garbage and human waste outside of the business, “making the area unsightly, unsanitary, unsafe, and treacherous to navigate.” Id. The area was also difficult to traverse because CHOP participants regularly relocated makeshift and City-provided barriers to block public streets and sidewalks throughout the CHOP area, including the intersection of Eleventh Avenue and Olive Street. Id. at ¶ 62. Oma Bap contends that many of its employees, suppliers, and customers could not “safely access” the business or decided to avoid the area entirely during CHOP, resulting in decreased revenue and profits. Id. at ¶¶ 63, 67.
Because police officers would enter the CHOP area only under certain, limited circumstances, the City observed an increase in criminal activity, including two fatal shootings, harassment, and vandalism. Id. at ¶¶ 40-46, 80. Oma Bap alleges that it suffered thousands of dollars in damages from vandalism to its business, “including numerous times that its store windows were scratched or shattered by people residing in Cal Anderson Park.” Id. at ¶ 72. Oma Bap also suffered losses when individuals posing as delivery drivers stole food, beverages, and snacks from the establishment. Id. at ¶ 68.e. Although the City cleared the area of barricades and encampments on July 1, 2020, officially ending CHOP, Oma Bap alleges that, shortly thereafter, the City allowed individuals to reoccupy Cal Anderson Park, where they engaged in regular, unpermitted protests until December 2020. Id. at ¶¶ 89, 95. Oma Bap contends that the reoccupation of Cal Anderson Park continued to harm its business because the encampment was located “only a few dozen feet” from its front door. Id. at ¶ 37.
Oma Bap commenced this action on April 6, 2023, and the City now moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss Oma Bap's claims for (i) violation of substantive due process, (ii) taking under per se and “right of access” theories of liability, and (iii) negligence.
Although a complaint challenged by a Rule 12(b)(6) motion to dismiss need not provide detailed factual allegations, it must offer “more than labels and conclusions” and contain more than a “formulaic recitation of the elements of a claim.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must indicate more than mere speculation of a right to relief. Id. When a complaint fails to adequately state a claim, such deficiency should be “exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558. A complaint may be lacking for one of two reasons: (i) absence of a cognizable legal theory, or (ii) insufficient facts under a cognizable legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In ruling on a motion to dismiss, the Court must assume the truth of the plaintiff's allegations and draw all reasonable inferences in the plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The question for the Court is whether the facts in the complaint sufficiently state a “plausible” ground for relief. Twombly, 550 U.S. at 570. If the Court dismisses the complaint or portions thereof, it must consider whether to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Oma Bap's first claim alleges that the City violated its Fourteenth Amendment substantive due process right “to be protected from state-created dangers.” Compl. at ¶ 91. Specifically, Oma Bap contends that the City's assistance, endorsement, and encouragement of CHOP and its participants “greatly increased the likelihood of property damage, loss of business revenue, loss of use of property, and other damage to” its business. Id. at ¶ 92. Oma Bap's claim mirrors the substantive due process claims brought by the Hunters Capital plaintiffs, which this Court dismissed at the summary judgment stage in that matter. See 3d Am. Compl. at ¶¶ 197-202 (C20-983 TSZ, docket no. 47); Hunters Capital, 2023 WL 184209, at *15.
Importantly, the Due Process Clause does not, on its face, require a governmental entity “to protect the life, liberty, and property of its citizens against invasion by private actors,” DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989), and, “[a]s a general rule, members of the public have no constitutional right to sue [governmental actors] who fail to protect them against harm inflicted by third parties,” L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (citing DeShaney, 489 U.S. at 197); see also Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). Like the plaintiffs in the Hunters Capital matter, Oma Bap relies on a single exception to this general rule, namely the state-created danger exception. Compl. at ¶¶ 91-96.
To prevail on a state-created danger claim, Oma Bap must establish that (i) the City's affirmative actions created or exposed it to an actual, particularized danger that it would not have otherwise faced, (ii) it suffered a foreseeable injury, and (iii) the City was deliberately indifferent to the known danger. See Sinclair v. City of Seattle, 61 F.4th 674, 680 (9th Cir. 2023) (citing Hernandez v. City of San Jose, 897 F.3d 1125, 1133-34 (9th Cir. 2018)). The City contends that Oma Bap's substantive due process claim fails because it has not plausibly alleged either that the City exposed it to an actual, particularized danger it would not have otherwise faced, or that the City acted with deliberate indifference to that danger. In contrast, Oma Bap argues that its factual allegations are “more than adequate” to state a substantive due process claim in light of the Ninth Circuit's recent opinion in Sinclair, another CHOP-related case. Oma Bap contends that Ninth Circuit's opinion in Sinclair casts serious doubt on this Court's dismissal of the plaintiffs' substantive due process claims in the Hunters Capital matter.
In Sinclair, a mother brought suit against the City after her nineteen-year-old son was shot to death within the CHOP area in June 2020. 61 F.4th at 676-77. In affirming the district court's dismissal of the mother's substantive due process claim, the Sinclair Court explained that, although the mother adequately alleged “that the City created, or at least significantly contributed to, the danger her son faced,” she failed to allege that the danger was “sufficiently particularized” to support her claim. Id. at 682. The Ninth Circuit concluded that “any...
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