Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist.

• Decision Date: 29 March 2012
• Docket Number: Civ. No. S-10-2414 KJM JFM
• Court: U.S. District Court — Eastern District of California
• Parties: JOSEPH HARDESTY, et al., Plaintiffs, v. SACRAMENTO METROPOLITAN AIR QUALITY MANAGEMENT DISTRICT, et al., Defendants.

JOSEPH HARDESTY, et al., Plaintiffs,

v. SACRAMENTO METROPOLITAN AIRQUALITY MANAGEMENT DISTRICT, et al., Defendants.

Civ. No. S-10-2414 KJM JFM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: March 29, 2012

ORDER

This case was on calendar on June 8, 2011 for a hearing on motions to dismiss filed by defendants Sacramento Metropolitan Air Quality Management District and David Grose (SMAQMD defendants); Sacramento County and Robert Sherry (County defendants); State of California, acting by and through California State Mining and Geology Board (SMGB), Office of Mine Reclamation (OMR), Department of Fish and Game (DFG), James Goldstene, Dennis O'Bryant, Gay Norris, Steve Testa, and Elizabeth Gregory (referred to generally as "state defendants" or named individually); and Zachary Simmons. The SMAQMD, state and county defendants argue that the complaint fails to state a claim under Rule 12(b)(6); Simmons argues that the court lacks subject matter jurisdiction under Rule 12(b)(1) and that the complaint fails to state a claim under 12(b)(6).

Plaintiffs' motion for leave to file an amended complaint and a motion for sanctions filed by the SMAQMD defendants also are pending.

As explained below, plaintiffs' motion to file an amended complaint is granted. The SMAQMD defendants' motion to stay is granted. The state, federal and county defendants' motions to dismiss are granted in part, and the SMAQMD motion for sanctions is denied. I. The Impact Of The Motion To Amend

Both plaintiffs' original and their proposed amended complaints describe a series of actions taken against plaintiffs, who operate a gravel mining operation in Sacramento County and who allege that their ability to continue their mining operations has been disrupted by a series of actions taken by defendants after A. Teichert & Sons, one of plaintiffs' main competitors, contacted the agencies to ask them to regulate plaintiffs and thus drive their prices up.

The original complaint contains seven claims: (1) a violation of the Clean Air Act against the SMAQMD defendants, Sacramento County, and James Goldstene; (2) a civil rights claim,¹ alleging violations of the Fourteenth Amendment and Supremacy Clause against the SMAQMD defendants, Sacramento County and James Goldstene; (3) a civil rights claim alleging violations of the Fifth and Fourteenth Amendments against OMR, Norris and O'Bryant; (4) a civil rights claim alleging due process violations against SMGB and Testa; (5) a Bivens claim alleging violations of the Fourth and Fifth Amendments against Simmons; (6) a civil rights claim alleging a Fourth Amendment violation against Gregory and DFG; and (7) a civil rights claim alleging violations of the Fifth and Fourteenth Amendments against the county defendants. ECF No. 2.

The proposed amended complaint drops as defendants the State of California, DFG, SMGB, OMR and Goldstene, but seeks to add as defendants Cindy Storelli, in her officialand individual capacity as a senior planner for Sacramento County; Leighann Moffitt in her official and individual capacity as Interim Planning Manager for Sacramento County; Bret Koehler in his official and individual capacity as Senior Engineering Geologist of the OMR; Michael Jewell; and Curt Taras in his individual and official capacity as Chief of the Encroachment Control and Land Use Section of the Central Valley Flood Protection Board. This complaint also contains seven claims: (1) a civil rights claim, alleging violations of the Due Process, Equal Protection and Supremacy Clauses against the SMAQMD defendants; (2) a civil rights claim, alleging a due process violation against defendants Koehler, Norris, Testa and O'Bryant; (3) a Bivens claim based on a due process violation against defendants Jewell and Simmons and on the Fourth Amendment against Simmons; (4) a civil rights claim, based on the Fourth Amendment, against defendant Gregory; (5) a civil rights claim, alleging a due process violation against defendant Taras; (6) a civil rights action, based on due process and equal protection violations against Sacramento County and defendant Sherry; and (7) a civil rights claim, alleging a due process and equal protection violation against the County and defendants Storelli and Moffitt. ECF No. 42-1 (FAC).

Defendants Sacramento County, Storelli, Moffit and Sherry argue that the amendment should not be permitted because the complaint fails to state a cause of action against them. ECF No. 48. The state defendants argue that the motion to amend was not timely filed so as to be heard on the court's June 8 calendar. ECF No. 43. They also argue plaintiffs filed the request too late, namely seventy-two days after the state defendants filed their motion to dismiss. ECF No. 43 at 4. Plaintiffs respond that the motion was timely filed, that the defendants will not be prejudiced by amendment, and that their request should be granted because defendants did not meet and confer before they filed the motions to dismiss. Defendants Simmons and Jewell argue that the amendment would be futile because the amended complaint does not state a claim against them. ECF No. 44.

A properly filed amended complaint supersedes the original complaint and constitutes a waiver of those claims in the original complaint that are not included in the amended complaint. As a result, when an amended complaint is filed while a motion to dismiss is pending, it generally moots the motion to dismiss. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (amended pleading supersedes the original pleading); Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir. 2008), cert. denied sub nom., McDaniel v. Sechrest, __ U.S. __, 130 S. Ct. 243 (2009) (amendment of a complaint constitutes waiver of claims not carried over from previous versions of the complaint); Marty v. Wells Fargo Bank, 2011 WL 1103405, at *1 (E.D Cal. Mar. 22, 2011) (amendment moots motion to dismiss).

Under Federal Rule of Civil Procedure² 15(a)(1)(B) and 15(a)(2), a party may amend a pleading as a matter of course within twenty-one days after serving it or, if the complaint is one to which a responsive pleading is required, within twenty-one days after the service of a motion under Rule 12(b). In this case, the state, county and SMAQMD defendants filed their motions to dismiss on February 28, 2011; the state defendants filed an amended motion to dismiss on May 6, 2011. Simmons filed his motion to dismiss on April 29, 2011. Plaintiffs filed their motion to amend on May 11, 2011.

Although defendants have not raised Rule 15 directly, plaintiffs recognize its impact and argue that the amended complaint is timely, at least as to Simmons, because it was filed within twenty-one days of the filing of Simmons' motion to dismiss. ECF No. 56 at 5. There is little law on the question whether a motion to amend is timely as to all defendants if filed within twenty-one days of the filing of the last-filed motion to dismiss. See Barksdale v. King, 699 F.2d 744, 747 (5th Cir. 1983) (under prior version of Rule 15, plaintiff's right to amend complaint as to those who had not answered continued even after some defendants had answered); but see Lau v. Guam Dept. Of Education, 2011 WL 2531061, at *3 (D. Guam June23, 2011) (under current version of Rule 15, plaintiff could not amend as matter of course when not within 21 days of first motion, though request was filed before second motion).

This court, however, need not reach whether the motion to amend is timely. As a practical matter and a matter of judicial economy, ignoring the amended complaint makes little sense, particularly when that proposed document does not include some of the claims under attack in the motion to dismiss. Ignoring the amended complaint also makes little sense in light of the Ninth Circuit's admonition that district courts should grant leave to amend when dismissing a case for failure to state a claim, "unless the court determines that the pleading could not possibly be cured by the allegations of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). With the amended complaint on file, the court can better determine whether any deficiencies are curable.

Accordingly, in resolving the pending motions to dismiss, the court will consider the amended complaint, to the extent that it contains claims substantially similar to the original complaint. Also in light of that complaint, the court deems the original claim of a violation of the Clean Air Act and all claims against the State of California and the state agencies to have been waived, and grants the motion to dismiss as to that claim and those defendants. II. Standards For A Motion To Dismiss

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions'" or "'a formulaic recitation of the elements of a cause of action.'" Id. at 1949 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires...