United States District Court, N.D. California
December 5, 2005.
JAMES E. ROBINSON, SR., Plaintiff,
CITY AND COUNTY OF SAN FRANCISCO, et al. Defendants.
The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
This matter comes before the Court upon consideration of the
motion to dismiss filed by Defendants the City and Count of San
Francisco ("City"), Municipal Transit Agency ("MUNI"), Michael
Burns ("Burns"), and Kathleen Forrester ("Forrester")
(collectively "City Defendants"). Having considered the parties'
pleadings, relevant legal authority, and the record in this
matter, the Court finds the motion suitable for disposition
without oral argument. See N.D. Civ. L.R. 7-1(b). Accordingly,
the hearing date set for December 16, 2005 is VACATED.
The City Defendants' motion is GRANTED, with leave to amend as
set forth in the terms of this Order.
FACTUAL AND PROCEDURAL BACKGROUND
According to the allegations in the Second Amended Complaint
("SAC"), Robinson, who was a pimp in the 1970's and 1980's but
later became a minister, ran for the position of First Vice
President of the Executive Board of the Transport Workers of
America Local 250A ("Local 250A"). (SAC, ¶ 1.) Robinson wrote a
novel about his former experiences as a pimp, and, prior to the union election, an article about Robinson and
his former way of life appeared in the San Francisco Examiner.
(Id., ¶ 2, Ex. A.)
Robinson alleges that he successfully defeated the incumbent
and was elected First Vice President on December 3, 2002. (Id.,
¶ 4.) He claims, however, that members of his union impeded his
ability to perform his duties, that Local 250A's president
claimed he was elected Third Vice President rather than First
Vice President, and that he was harassed by members of Local
250A. (Id., ¶¶ 5-10, 12.)
Robinson's novel was published on May 15, 2003, and on June 4,
2003, another article about his former life and his then current
union activities appeared in the San Francisco Weekly. (Id.,
¶¶ 16-17, Exs. H, I.) On June 4, 2003, in apparent response to
the publication of Robinson's novel and the San Francisco
Weekly article, the Executive Board of Local 250A held a
meeting. (Id., ¶ 18.) Robinson claims that union officials
suggested that Robinson give up his office. (Id.)
The bulk of the allegations in the SAC address actions by
defendants who have been dismissed from this case. However,
Robinson claims that on January 15, 2003, Burns "initiated a
thirty (30) day moratorium, whereby any and all new union
officials were to be trained by their predecessor," the first
time such a moratorium had been established. (Id., ¶ 6.)
Robinson alleges that Forrester "aggressively solicited workers
of [Local 250A] to sign a petition to remove" Robinson from his
position with Local 250A. (Id. ¶ 21.) Robinson further alleges
that Burns "did affix to Plaintiff's and all workers' paychecks
with [sic] a bias communique in regard to Plaintiff for sexual
harassment . . ." and that Forrester "submitted a biased and
misleading communication to" Local 250A's president. (Id., ¶¶
On June 27, 2003, following a suspension hearing on charges of
sexual harassment and selling his novel on company property,
Robinson was removed from his office. (Id., ¶¶ 26-31.)
Robinson initiated suit on June 28, 2004, and on March 17,
2005, he filed his Second Amended Complaint, in which he alleges
causes of action: (1) under 42 U.S.C. § 1983; (2) under
42 U.S.C. § 1985(3); under the common law of conspiracy; (4) for negligent
infliction of emotional distress; (5) for intentional infliction of emotional
distress; and (6) for declaratory relief.
A. Legal Standards Applicable to Motions to Dismiss.
A motion to dismiss is proper under Rule 12(b)(6) where the
pleadings fail to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). A motion to dismiss should not be
granted unless it appears beyond a doubt that a plaintiff can
show no set of facts supporting his or her claim. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); see also De La Cruz v.
Tormey, 582 F.2d 45, 48 (9th Cir. 1978). In ruling on a Rule
12(b)(6) motion, the complaint is construed in the light most
favorable to the non-moving party and all material allegations in
the complaint are taken to be true. Sanders v. Kennedy,
794 F.2d 478, 481 (9th Cir. 1986). The court, however, is not
required to accept legal conclusions cast in the form of factual
allegations if those conclusions cannot reasonably be drawn from
the facts alleged. Cleggy v. Cult Awareness Network,
18 F.3d 752, 754-55 (9th Cir. 1994) (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)).
As a general rule, "a district court may not consider any
material beyond the pleadings in ruling on a Rule 12(b)(6)
motion." Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994),
overruled on other grounds, Galbraith v. County of Santa Clara,
307 F.3d 1119 (9th Cir. 2002) (citation omitted). The Court may,
however, consider the facts alleged in the complaint, documents
attached to the complaint, documents relied upon but not attached
to the complaint when the authenticity of those documents is not
questioned, and other matters of which the Court can take
judicial notice. Branch, 14 F.3d at 453-54; Hal Roach Studios,
Inc. v. Richmond & Feiner Co., Inc., 806 F.2d 1542, 1555 n. 19
(9th Cir. 1989).*fn1 B. Robinson's Section 1985 Claim Is Dismissed With Leave to
To establish a claim for a violation of 42 U.S.C. § 1985(3), "a
plaintiff must allege and prove four elements: (1) a conspiracy;
(2) for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of this conspiracy; 4) whereby a person
is either injured in his person or property or deprived of any
right or privilege of a citizen of the United States." Sever v.
Alaska Pulp Corporation, 978 F.2d 1529, 1536 (9th Cir. 1992)
(citing United Brotherhood of Carpenters and Joiners of America
v. Scott, 463 U.S. 825, 828-29 (1983)) ("Scott").
To establish the second element of a Section 1985(3) claim, a
plaintiff must allege and prove that the deprivation of the right
in question was "motivated by `some racial, or perhaps otherwise
class-based, invidiously discriminatory animus behind the
conspirators' action.'" Id. (quoting Griffith v.
Breckenridge, 403 U.S. 88, 102 (1971)); see also McCalden v.
California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1992)
("`the plaintiff must be a member of a class that requires
special federal assistance in protecting its civil rights'")
(quoting Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1519
(9th Cir. 1987)).
In Scott, the Supreme Court held, in the context of a Section
1985(3) claim based on alleged violations of First Amendment
rights, that conduct taken by union members against non-members
was not subject to the protection of Section 1985 where the
alleged conspirators were driven by an economic or commercial
motive. Scott, 463 U.S. at 838-39. Subsequent to the Supreme
Court's decision in Scott, in Sever, supra, the Ninth Circuit
stated that its general rule
is that section 1985(3) is extended beyond race only
when the class in question can show that there has
been a governmental determination that its members
require and warrant special federal assistance in
protecting their civil rights. . . . More
specifically, we require either that the courts have
designated the class in question as a suspect or
quasi-suspect classification requiring more exacting
scrutiny or that Congress has indicated through
legislation that the class required special
Sever, 978 F.2d at 1536 (citations and internal quotations
omitted). In this case, Robinson alleges that "the conspiratorial purpose
was financial," and has not alleged facts demonstrating that the
City Defendants were motivated by animus based on his membership
in a protected class. The Court cannot, however, conclude that
there are no facts upon which Robinson could base such a claim.
Accordingly, the Court DISMISSES WITHOUT PREJUDICE the Section
1985(3) claim. If Robinson intends to pursue this claim, and if
he can set forth facts alleging that the purported conspiracy was
motivated based upon his membership in a protected class, he is
granted leave to amend.
C. Robinson's State Tort Law Claims Are Dismissed With Leave
Robinson has not disputed any of the Defendant's arguments as
to his claims for common law conspiracy, intentional infliction
of emotional distress, and negligent infliction of emotional
distress. Indeed, in his supplemental memorandum in opposition to
the City Defendants' motion to dismiss, he states that he "seeks
to proceed . . . on his § 1983 claims," and does not address the
remaining claims at all.*fn2
With respect to the state law claims, Robinson has not alleged
compliance with the California Tort Claims Act ("CTCA"), nor has
he attempted to refute the City Defendants' assertion that he has
not complied with the CTCA. Pursuant to the CTCA, a plaintiff is
required to file a claim with a municipal entity prior to filing
a lawsuit. See, e.g., State v. Superior Court,
32 Cal. 4th 1234, 1243 (2004). That alone would warrant dismissal without
prejudice of the state law claims. However, dismissal of the
intentional infliction of emotional distress claim is also
warranted because the factual allegations insufficiently allege
extreme or outrageous conduct. See, e.g., Cochran v. Cochran,
64 Cal. App. 4th 488, 496 (1998) ("the tort does not extend to
`mere insults, indignities, threats, annoyances, petty
oppressions or other trivialities") (emphasis omitted).
"[T]he negligent causing of emotional distress is not an
independent tort but the tort of negligence." Marlene F. v.
Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 588
(1989) (quoting 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §
838, p. 195 (emphasis omitted)). Accordingly, Robinson must
establish the traditional elements of a tort claim, namely that
(1) the City Defendants owed him a duty of care, (2) they
breached that duty, and (3) caused him damages. Id. He has not
done so and dismissal of the claim for negligent infliction of
emotional distress is warranted on this ground as well.
Finally, because Robinson's claim for common law conspiracy
depends upon the commission of an actual tort, and because the
Court has concluded that the facts alleged in the SAC are
insufficient to allege such a tort, that claim is dismissed as
well. See Applied Equipment Corp. v. Litton Saudi Arabia Ltd.,
7 Cal. 4th 503, 510-12 (2004) (noting that civil conspiracy is
not a cause of action but a doctrine imposing liability on
persons who share with tortfeasors a common plan or design in
perpetration of the tort).
Again, however, the Court cannot conclude on this record that
there are no facts that could support these claims. Accordingly,
the state tort law claims are DISMISSED WITHOUT PREJUDICE. If
Robinson intends to pursue these claims, if he can allege
compliance with the CTCA, and if he can allege facts beyond those
set forth in the SAC, he shall be given leave to amend those
D. Robinson Shall Be Given Leave to Amend His Section 1983
The City Defendants have also moved to dismiss Robinson's
Section 1983 claim on the ground that he has not alleged, and
cannot allege, facts demonstrating that the City Defendants
deprived him of his union position or were motivated by racial
animus. In his opposition to the City Defendants' motion,
Robinson asserts that his Section 1983 claim is premised upon
violation of his First Amendment rights.
Because the bulk of the allegations in the SAC are directed to
the actions of defendants whom Robinson has dismissed, because
the allegations as to this claim against the City Defendants are
vague, and because the Court is dismissing Robinson's other
claims without prejudice, the Court shall afford Robinson one final
opportunity to amend his complaint to clearly set forth his
Section 1983 claims against the City, MUNI, Burns and Forrester.
For the foregoing reasons, the City Defendants' motion to
dismiss is GRANTED with leave to amend. Robinson shall file his
Third Amended Complaint, in accordance with the terms of this
Order, by December 23, 2005. The City Defendants shall file their
responsive pleading twenty days after service of the amended
This matter shall be set for a case management conference on
Friday, February 10, 2006 at 1:30 p.m.
IT IS SO ORDERED.
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