Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist., Civ. No. S–10–2414 KJM JFM.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: KIMBERLY J. MUELLER
• Citation: 935 F.Supp.2d 968
• Parties: Joseph HARDESTY, et al., Plaintiffs, v. SACRAMENTO METROPOLITAN AIR QUALITY MANAGEMENT DISTRICT, et al., Defendants.
• Decision Date: 25 March 2013
• Docket Number: Civ. No. S–10–2414 KJM JFM.

935 F.Supp.2d 968

Joseph HARDESTY, et al., Plaintiffs,
v.
SACRAMENTO METROPOLITAN AIR QUALITY MANAGEMENT DISTRICT, et al., Defendants.

Civ. No. S–10–2414 KJM JFM.

United States District Court,
E.D. California.

March 25, 2013.

[935 F.Supp.2d 973]

George David Robertson, Jonathan J. Tew, PHV, Robertson, Johnson, Miller & Williamson, Laura Elaine Sutton, Law Office of Laura Elaine Sutton, Reno, NV, for Plaintiffs.

Alexandra V. Atencio, Kimon Manolius, Neil R. Bardack, Hanson Bridgett LLP, San Francisco, CA, Kathrine C. Pittard, Sacramento Metropolitan Air Quality Management District, Stephen Charles Pass, Randy L. Barrow, State of California, Office of the Attorney General, Jeffrey Paul Reusch, Powers & Miller, Gregory P. O'Dea, Mark Peter O'Dea, Longyear, O'Dea and Lavra, Sacramento, CA, Joseph Charles Rusconi, California Attorney General's Office, Oakland, CA, Leah Brownlee Taylor, Govt., Martha C. Mann, United States Department of Justice, Washington, DC, for Defendants.

ORDER
KIMBERLY J. MUELLER, District Judge.

Plaintiffs Joseph and Yvette Hardesty operate Hardesty Sand and Gravel (HSG) at the Schneider Family Mine in Sacramento County. They allege that federal, state and county agencies, prompted by a politically influential competitor, have undertaken a number of actions designed to drive HSG out of business. The following defendants have moved to dismiss the Second Amended Complaint (SAC): Sacramento County and Robert Sherry (County defendants); Dennis O'Bryant, Gay Norris, Steve Testa, Bret Koehler, and Curt Taras of the Central Valley Flood Protection Board (State defendants); Liz Gregory (Gregory); and Cindy Storelli and Leighann Moffitt (Storelli and Moffitt). The court heard argument on the motions on October 26, 2012. George Robertson and Laura Sutton, Robertson, Johnson, Miller & Williamson, appeared for plaintiffs; Joseph Rusconi, Deputy Attorney General, appeared for defendants O'Bryant, Norris, Testa, Koehler, and Taras; Jeffrey Reusch, Deputy Attorney General, appeared for defendant Gregory, and Mark O'Dea, Longyear, O'Dea & Lavra, LLP, appeared for defendants Sacramento County, Sherry, Storelli and Moffitt. The court heard argument on these motions on October 26, 2012. After considering the parties' arguments, the court GRANTS defendant Koehler's motion to dismiss but DENIES the other motions.

Defendants Sacramento Metropolitan Air Quality Management District and David Grose (SMAQMD defendants) also filed a motion to dismiss, which was heard on January 18, 2013. Kimon Manolius, Hanson Bridgett LLP, and Katherine Pittard, District Counsel, appeared for defendants; Jonathan Tew, Robertson, Johnson, Miller & Williamson, appeared for plaintiffs. After considering the parties' arguments, the court GRANTS the SMAQMD defendants' motion to dismiss.

I. Procedural Background

On September 8, 2010, plaintiffs filed their original complaint, containing seven claims: (1) a violation of the Clean Air Act (CAA) against the SMAQMD defendants, Sacramento County, and James Goldstene; (2) a civil rights claim, 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 the Office of Mine Reclamation (OMR), Norris and O'Bryant; (4) a civil rights claim alleging due process violations against the California State Mining and Geology Board (SMGB) and Testa; (5) a Bivens claim alleging violations of the Fourth and Fifth Amendments against

[935 F.Supp.2d 974]

Simmons; (6) a civil rights claim alleging a Fourth Amendment violation against Gregory and the Department of Fish and Game (DFG); and (7) a civil rights claim alleging violations of the Fifth and Fourteenth Amendments against the County defendants. (ECF No. 2.)

While the defendants' motions to dismiss the complaint were pending, plaintiffs filed a motion seeking permission to file an amended complaint. The proposed amended complaint dropped as defendants the State of California, DFG, SMGB, OMR and Goldstene. It sought to add as defendants Cindy Storelli, in her official and 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 contained 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 claim, 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).) The court considered this complaint in ruling on the earlier motions to dismiss to the extent that it contained claims substantially similar to the original complaint, as the First Amended Complaint provided some guidance on whether amendment was appropriate. (Order, ECF No. 69 at 5.) Because the First Amended Complaint omitted plaintiffs' claims under the CAA, the court deemed them waived and granted the motion to dismiss as to those claims. In addition, it granted the SMAQD defendants' motion to stay and granted the other defendants' motions in part and denied them in part. (Id. at 37–38.)

Plaintiffs have now filed their Second Amended Complaint, which contains nine claims: (1) a civil rights claim alleging Fourteenth Amendment due process and “class of one” equal protection violations, as well as Supremacy Clause violations against the SMAQMD defendants; (2) a civil rights claim alleging a Fourteenth Amendment “class of one” equal protection claim against the State defendants (3) a Bivens action alleging a Fourth Amendment violation against Zachary Simmons ¹; (4) a civil rights claim alleging a violation of the Fourth Amendment against Liz Gregory; (5) a civil rights claim alleging violations of the Fourteenth Amendment rights to substantive and procedural due process against Curt Taras; (6) a civil rights claim alleging Fourteenth Amendment “class of one” equal protection and due process violations against the County defendants; (7) a civil rights action alleging an equal protection violation against Storelli and Moffitt; (8) a claim under the Administrative Procedures Act (APA) against the Army Corps of Engineers

[935 F.Supp.2d 975]

(ACE), and (9) a civil rights claim alleging a Fourteenth Amendment substantive due process claim against all defendants except ACE. (ECF No. 74(SAC).)

Several of the state defendants argue that any claims for damages brought against them in their official capacities are barred by the Eleventh Amendment. ( See ECF No. 89 at 18.) Plaintiffs respond that they are proceeding on damages claims against these defendants in their individual capacities only and confirmed this at argument. ( See, e.g., ECF 107 at 11.) These portions of the motions to dismiss are denied as moot.

Defendants Taras and Koehler also argued in their brief that California's anti-SLAPP procedure, Cal.Code Civ. Proc. § 425.16, applied to the claims against them, but at hearing withdrew this argument.

Finally, at argument counsel for defendants O'Bryant, Norris, Testa, Sherry, Storelli and Moffitt argued that their clients are entitled to qualified immunity. The court declines to consider this argument, raised for the first time at hearing. Amini v. Bank of America Corp., No. C11–0974 RSL, 2012 WL 398636, at *7 (W.D.Wash. Feb. 7, 2012) (“Arguments raised for the first time at oral argument are generally not considered because the opposing party is deprived of its opportunity to evaluate the merits of the new argument before responding.”).

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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937. Ultimately, the inquiry focuses on the interplay between the factual allegations of...