Vail v. City of Sacramento

• Decision Date: 31 July 2019
• Docket Number: No. 2:16-cv-2673 DB PS,2:16-cv-2673 DB PS
• Parties: TERRENCE VAIL, Plaintiff, v. CITY OF SACRAMENTO, Defendant.
• Court: U.S. District Court — Eastern District of California

TERRENCE VAIL, Plaintiff, v. CITY OF SACRAMENTO, Defendant.

No. 2:16-cv-2673 DB PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

July 31, 2019

ORDER AND FINDINGS AND RECOMMENDATIONS

Pending before the court are defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, plaintiff's motion for leave to amend, and plaintiff's motions for default judgment. (ECF Nos. 47, 49, 50, 54.) Plaintiff and defendant City of Sacramento previously consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 12.)

However, as explained below, plaintiff is now proceeding on an amended complaint that names additional defendants who have not appeared in this action. "28 U.S.C. § 636(c)(1) requires the consent of all plaintiffs and defendants named in the complaint—irrespective of service of process—before jurisdiction may vest in a magistrate judge to hear and decide a civil case that a district court would otherwise hear." Williams v. King, 875 F.3d 500, 501 (9th Cir. 2017).

//// Accordingly, this action can no longer proceed as a consent case and a District Judge must be assigned. Moreover, for the reasons stated below, the undersigned will recommend that defendant's motion to dismiss be granted in part, and that plaintiff's motions for leave to amend and default judgment be denied.

BACKGROUND

Plaintiff commenced this action on November 10, 2016, by filing a complaint and paying the required filing fee. (ECF No. 1.) On February 6, 2018, the court dismissed plaintiff's complaint and granted plaintiff leave to file an amended complaint. (ECF No. 26.) Plaintiff filed an amended complaint on June 21, 2018. (ECF No. 33.)

Therein, plaintiff alleges that plaintiff, "a protected, Iraqi Wartime military veteran," is the owner of "SACSTERDAM COLLECTIVE dba POWER INN WELLNESS DISPENSARY, a medical marijuana dispensary lawfully operating in Sacramento County[.]" (Am. Compl. (ECF No. 33) at 2.¹) On November 9, 2010, the Sacramento City Council, ("the City"), "adopted regulations for medical marijuana dispensaries within the city." (Id. at 6.) Specifically, the City "designed a conditional-use permitting process for the operation of retail dispensaries selling medical cannabis to qualified patients," and setting a limit of 39 such permits. (Id.) "As Plaintiff . . . was properly registered and operating within the city . . . Plaintiff was allowed to apply for the required permits to operate as a dispensary." (Id.)

On October 18, 2011, the City put the permitting process "on an indefinite 'Administrative hold[.]'" (Id. at 21.) The City lifted this hold in October of 2013. (Id.) "The City notified all applicants that the process was restarted and that all dispensaries must file Phase 2 applications by March 31, 2014." (Id.) Plaintiff submitted a Phase 2 application and "paid the City an additional fee of $12,600." (Id.)

However, on September 16, 2014, plaintiff received a letter advising that plaintiff had failed to submit an application for a conditional use permit. (Id. at 22.) Plaintiff was also informed that plaintiff's "current location did not meet location and zoning requirements as it waswithin 600 feet of a public or private school[.]" (Id.) On November 25, 2014, the City Council voted to extend "the existing . . . deadline to May 31, 2015, for only those dispensaries who have submitted a conditional use permit by" December 31, 2014. (Id. at 29.)

At that time, of the 31 dispensaries eligible to apply for a conditional use permit, plaintiff was the only dispensary that had failed to do so. (Id. at 26.) As a result, "all dispensaries (except Plaintiff" were granted an extension of the deadline to obtain a conditional use permit to May 31, 2015. (Id. at 29.) Plaintiff attempted to submit a conditional use permit application on January 2, 2015, but was refused. (Id. at 30.)

Pursuant to these allegations the amended complaint asserts violations of plaintiff's rights under the Fifth and Fourteenth Amendment, to substantive due process, equal protection, and for wrongful arrest, as well as several state law causes of action. (Id. at 37-55.) Defendant City of Sacramento filed the pending motion to dismiss on November 21, 2018. (ECF No. 37.) Plaintiff filed an opposition on November 1, 2019. (ECF No. 43.) Defendant filed a reply on February 6, 2019. (ECF No. 44.)

On May 28, 2019, plaintiff filed a motion seeking leave to file a second amended complaint, as well as a motion for default judgment against defendant City of Sacramento. (ECF Nos. 49 & 50.) Plaintiff filed a second motion for default judgment against defendant City of Sacramento on July 15, 2019. (ECF No. 54.)

STANDARDS

I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a 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). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that

////allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).

While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

ANALYSIS

I. Plaintiff's Motions

Plaintiff's motions for further leave to amend and for default judgment were not noticed on the undersigned's law and motion calendar as required by Local Rule 230. Plaintiff's motionfor further leave to amend does not include a copy of a proposed second amended complaint as required by Local Rule 137(c). And, as addressed below, the undersigned finds that granting plaintiff further leave to amend with respect to claims that the court would have federal question jurisdiction over would be futile.

With respect to plaintiff's motions for default judgment, default judgment is appropriate where—after defendant's default has been entered—the court finds that "a defendant's failure to appear 'makes a decision on the merits impracticable, if not impossible[.]'" Craigslist, Inc. v. Naturemarket, Inc., 694 F.Supp.2d 1039, 1061 (N.D. Cal. 2010) (quoting Pepsico, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002)). Here, defendant City of Sacramento is not in default, has appeared, and has filed a responsive pleading to the amended complaint, i.e., the pending motion to dismiss.

Accordingly, the undersigned recommends that plaintiff's motion for further leave to amend and motions for default judgment be denied.

II. Defendant's Motion to Dismiss

A. Rule 8

Defendant first argues that the amended complaint should be dismissed for failure to comply with the pleading requirements of Rule 8. (Def.'s MTD (ECF No. 37-1) at 3.) Defendant's argument is well taken. Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancements.'" Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. Jones, 733 F.2d at 649.

Here, plaintiff's amended complaint is essentially a laundry list of allegations without any explanation as to how those allegations support a specific...