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 ...