The opinion of the court was delivered by: Thelton E. Henderson, United States District Judge.
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS PLAINTIFFS'
This matter came before the Court on October 7, 2002, on Defendants'
Motion to Dismiss Plaintiffs' Second Amended Complaint. After careful
consideration of the parties' written briefs and oral arguments, and good
cause appearing, the Court GRANTS the motion to dismiss.
Plaintiffs are five African-American and one Mexican-American former
tenants of 10031-59 MacArthur Boulevard, Oakland, California. Marvin
Budderman, whom Plaintiffs originally named as a Defendant but have since
voluntarily dismissed from this suit, is Plaintiffs' former landlord.
Defendants are the City of Oakland, Oakland Mayor Jerry Brown, and two
city employees, David Carillo and Pelayo Llamas. Plaintiffs assert two
causes of action against Defendants: violation of 42 U.S.C. § 1983
and violation of California Civil Code § 51.
Plaintiffs' Second Amended Complaint contains the following
allegations: Budderman and other landlords made contributions to
Defendant Brown's mayoral campaigns in 1998, 1999, and 2000. Second
Amended Complaint ("Compl.") at ¶ 8. Defendants Carillo and Llamas
subsequently acted in concert with Defendants Brown and the City of
Oakland to deprive Plaintiffs of their First, Fourth, and Fifth Amendment
rights. Id. at ¶ 5. Oakland city officials, including Defendants
Llamas and Carillo, "have entered upon the abodes and residences of the
plaintiffs without search warrants or arrest warrants, and threatened by
words and actions to issue citations, committed assaults and batteries
upon plaintiffs, threatened to place them under arrest and search their
homes and to deprive them of their homes, places of abode and dwelling
houses." Id. at. ¶ 10.
Plaintiffs state that, in November of 2001, Defendants Brown, Carillo,
and Llamas, together with Budderman, entered into a conspiracy to
"deprive the plaintiffs of their homes, their place of residence, their
living quarters and their right to determine the occupation of the abodes
by threat, intimidation and fear of physical force and violence." Id. at
¶ 9. Over a two-month period, Defendants Brown and the City of Oakland
conspired with Defendants Carillo and Llamas "to illegally enter
[Plaintiffs'] homes and make threats and use force to deprive them of
their properties." Id. at ¶ 11. Plaintiffs assert that Defendants,
whose conduct was allegedly
motivated by a desire to acquire possession
of the property at 10031-17 MacArthur Boulevard, id. at ¶ 13, "have
continued to threaten, intimidate and harass the plaintiffs and deprive
them of their residence, homes, and domiciles by sending agents there,
making threats to them, and locking the doors and changing the locks on
the doors." Id.
Plaintiffs instituted this action with the filing of their Complaint on
December 19, 2001. Plaintiffs asserted three causes of action against
Defendants Jerry Brown and the City of Oakland: (1) violation of
42 U.S.C. § 1983, (2) violation of 42 U.S.C. § 1985, and (3)
violation of the Racketeer Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. § 1962(b) and (c). On January 15, 2002,
Plaintiffs filed their First Amended Complaint, which included no new
substantive allegations. Defendants brought a motion to dismiss on March
15, 2002. This Court granted Defendants' motion on June 12, 2002.
Plaintiffs' § 1985 and RICO causes of action were dismissed with
prejudice. Two of Plaintiffs' § 1983 claims — the Sixth
Amendment jury trial and Fourteenth Amendment equal protection claims
— were dismissed with prejudice, and Plaintiffs' remaining
allegations — the First, Fourth, and Fifth Amendment claims
— were dismissed without prejudice. Plaintiffs filed their Second
Amended Complaint on June 19, 2002, and Defendants brought a motion to
dismiss on July 8, 2002.
Dismissal is appropriate under Rule 12(b)(6) when a plaintiffs
allegations fail to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). In deciding whether a case should be dismissed, a
court may generally only consider the complaint and any attached exhibits
that have been incorporated therein. Branch v. Tunnell, 14 F.3d 449, 453
(9th Cir. 1994). However, a court may consider a document external to the
complaint if the complaint "necessarily relies" on the document and no
party contests the document's authenticity. Parino v. FHP, Inc.,
146 F.3d 669, 706 (9th Cir. 1998). In addition, as noted above, a court
may also take judicial notice of matters of public record. Lee v. City of
Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
The court must accept as true the factual allegations of the complaint
and construe those allegations in the light most favorable to the
plaintiff. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.
2000). It should not grant dismissal unless "it appears beyond a doubt
that [the] plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Steckman v. Hart Brewing. Inc.,
143 F.3d 1293, 1295 (9th Cir. 1998); see also Conley v. Gibson,
355 U.S. 41, 45-46 (1957). Dismissal may be based upon "the lack of a
cognizable legal theory or the absence of sufficient facts alleged under
a cognizable theory." Balistieri v. Pacifica Police Department,
901 F.2d 696, 699 (9th Cir. 1990). Moreover, dismissal should be with
leave to amend unless it is clear that amendment could not possibly cure
the complaint's deficiencies. Steckman, 143 F.3d at 1296.
A. Improper Amendment of Plaintiffs' Complaint
Defendants contend Plaintiffs' Second Amended Complaint, which names
two new defendants and asserts a new state law cause of action, should be
dismissed for failure to comply with the Federal Rules of Civil Procedure
and this Court's orders. Defendants' Memorandum of Points and Authorities
in Support of Motion to Dismiss Second Amended Complaint ("Defendants'
Motion") at 2; Defendants' Reply at 1, 4. The Second Amended Complaint
names Pelayo Llamas, a Deputy City Attorney, and David Carillo, a Code
Inspector, as defendants in this action. Plaintiffs also allege, for the
first time, that Defendants have violated the Unruh Civil Rights Act,
Cal. Civ. Code § 51. For the following reasons, the Court concludes
that these amendments are proper.
Federal Rule of Civil Procedure 15(a) states that a party may amend a
pleading once as a matter of course, which Plaintiffs did when they filed
their First Amended Complaint on January 15, 2002. Rule 15(a) further
provides that a party may otherwise amend a pleading "only by leave of
court or by written consent of the adverse party, and leave shall be
freely granted when justice so requires."*fn3 Fed.R.Civ.P. 15(a). Rule
15 "reflects the limited role" assigned to pleadings in federal court,
which can be described as providing the parties involved "with fair
notice of the general nature and type of the pleader's claim or defense."
Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before
Trial, § 8:362 (2002). Because of the strong federal policy favoring
resolution of cases on their merits, leave to amend should be freely
granted unless the opposing party can make a showing of unfair prejudice
or bad faith on the part of the moving party. Id. at § 8:400, citing
Martinez v. Newport Beach City, 125 F.3d 777, 785 (9th Cir. 1997),
overruled in part on other grounds, Green v. City of Tucson, 255 F.3d 1086,
1093 (9th Cir. 2001). The policy regarding leave to amend is to be
applied with "extraordinary liberality." Id., citing Morongo Band of
Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).
This Court did in fact grant Plaintiffs' leave to amend. In dismissing
Plaintiffs' First, Fourth, and Fifth Amendment claims without prejudice,
the Court's June 12 Order provides that "Plaintiffs may file and serve
their second amended complaint no later than June 24, 2002."*fn4 June 12
Order at 13. While the Court directed
Plaintiffs to address the
deficiencies in the First Amended Complaint, no limitations were placed
on the types of amendments that could be made. Defendants'
characterization of Plaintiffs' tactics as "gamesmanship," Defendants'
Reply at 1, is not sufficient to show unfair prejudice or bad faith.
Moreover, when the Court issued its June 12 Order, it was not convinced
that further amendments to Plaintiffs' complaint would be futile. See
Schwarzer at § 8:362 (stating that "[l]eave to amend may be denied if
the proposed amendment is futile or would be subject to dismissal"),
citing Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). Indeed,
with respect to the constitutional claims that were dismissed without
prejudice, the Court expressly stated that it was not clear that
Plaintiffs could not rectify the flaws in their complaint if given leave
to amend. June 12 Order at 7-8.
Allowing Plaintiffs to name two new defendants and assert a new state
law cause of action is also consistent with the Federal Rules of Civil
Procedure governing joinder of parties and claims. Defendants Carillo and
Llamas may be added in Plaintiffs' Second Amended Complaint, as questions
of law and fact common to all defendants will be litigated in this action
and Plaintiffs have asserted against these new defendants claims to
relief that arise out of the same transaction or occurrence.
Fed.R.Civ.P. 20. Finally, the new claim for violation of ...