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December 5, 2005.

JAMES E. ROBINSON, SR., Plaintiff,

The opinion of the court was delivered by: JEFFREY WHITE, District Judge


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.


  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., ¶¶ 27-28.)

  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 ...

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