The opinion of the court was delivered by: Hayes, Judge
The matter before the court is the motion to dismiss (Doc. # 5) filed by Defendant City of San Diego.
On February 5, 2008, Plaintiff Tracy Means filed a Complaint against Defendant City of San Diego in the California State Superior Court in San Diego, California. (Doc. #1 at Ex. A). The Complaint alleges that Defendant violated Plaintiff's constitutional rights when it filed suit against her in California State Superior Court. (Doc. # 1 at Ex. A). Specifically, the Complaint alleges that Defendant violated Plaintiff's equal protection rights, procedural due process rights, and substantive due process rights under the Fourteenth Amendment of the United States Constitution. (Doc. # 1 at Ex. A). On March 27, 2008, Defendant removed the action to this Court. (Doc. # 1).
On April 3, 2008, Defendant filed the pending motion to dismiss for failure to state a claim upon which relief can be granted, and in the alternative, motion for a more definite statement and motion to strike. (Doc. # 5). On May 23, 2008, Plaintiff filed a response in opposition to the motion. (Doc. # 9). On June 2, 2008, Defendant filed a reply in support of the motion. (Doc. # 10).
Allegations of the Complaint
"Defendant City of San Diego is, and at all times mentioned was, a municipal corporation and a Political Subdivision of the State of California." First Amended Complaint (FAC) (Doc. #1 at Ex. A), ¶ 1. Plaintiff was an employee of Defendant for approximately eight years, holding the position of Deputy Director, Airports Division. FAC, ¶ 4. Plaintiff "left her employment with [Defendant] City of San Diego in November, 2005." FAC, ¶ 5.
On December 13, 2005, Defendant City of San Diego filed a lawsuit*fn1 (Suit 1) against Plaintiff in the California State Superior Court in San Diego, California, alleging that Plaintiff improperly awarded "fourteen written purchase order contracts for consulting services." FAC, ¶¶ 7-8. On January 13, 2006, Plaintiff filed an answer to the complaint. FAC, ¶ 7. Defendant City of San Diego ultimately amended the complaint on three occasions, and Plaintiff filed an answer to the 4th Amended Complaint. FAC, ¶ 7. On February 27, 2006, and again on March 7, 2006, the San Diego City Council addressed the question of whether Defendant City of San Diego would provide Plaintiff a defense in Suit 1. FAC, ¶ 12. In March, 2006, the San Diego City Council denied Plaintiff a defense on conflict of interest grounds. FAC, ¶ 12. On September, 7, 2006, Plaintiff asked Defendant City of San Diego to withdraw the suit against Plaintiff. FAC, ¶ 13. The City of San Diego declined to withdraw the suit. FAC, ¶ 13. In response, Plaintiff filed a motion for summary judgment. FAC, ¶ 9. On August 10, 2007, Plaintiff's motion for summary judgment in Suit 1 was granted and judgment was entered in Plaintiff's favor on September 20, 2007. FAC, ¶ 9. On October 9, 2007, Defendant City of San Diego appealed to the California Court of Appeal, which appeal is still pending. FAC, ¶ 10.
On April 14, 2006, while Suit 1 was pending and following the City Council's decision not to provide Plaintiff with legal counsel, Plaintiff filed a "Complaint for Declaratory Relief, Mandamus, and Attorney's Fees"*fn2 (Suit 2) against Defendant in the California State Superior Court in San Diego, California. (Doc. # 5 at Ex. 2).*fn3 Plaintiff sought a declaration that Defendant was required to pay for her defense in Suit 1, and an order of mandate compelling Defendant to provide Plaintiff a full and complete defense from the allegations in Suit 1. (Doc. # 5 at Ex. 2, ¶¶ 19, 25). Plaintiff and Defendant filed cross-motions for summary judgment in Suit 2. (Doc. # 5 at Ex. 3). On November 8, 2007, the State Superior Court granted Defendant's motion for summary judgment in Suit 2. (Doc. # 5 at Ex. 3).
Plaintiff is "informed and believes" that Defendant City of San Diego's attorney "did not ask for or receive permission" to file the suit against Plaintiff in the first instance, and further, that "in spite of knowing these facts, the City Counsel repeatedly ratified the continuation of the frivolous and unlawful actions." FAC, ¶ 11. "Despite repeated attempts by [Plaintiff] Ms. Means to have the lawsuit withdrawn, dismissed or otherwise ended, the Mayor, City Council and City Attorney separately and together failed and refused to do so." FAC, ¶ 14. The San Diego "City Council allowed [Suit 1] to continue and was deliberately indifferent to the fact and knowledge which the City Council had that [the City Attorney] had insufficient evidence to support the allegations against [Plaintiff] Ms Means." FAC, ¶ 15. "In failing and refusing to end [Suit 1] and in passing and refusing to pass various resolutions regarding [Suit 1], Defendant made official policy which violated Plaintiff's [c]onstitutional rights." FAC, ¶ 16. Plaintiff alleges that the City Attorney has initiated lawsuits against other current and former employees of the City of San Diego and that the City of San Diego has provided a defense for those other employees. FAC ¶ 19.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the "right of relief above the speculative level." Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1965 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show "that the pleader is entitled to relief." See Id. (citing FED. R. CIV. P. 8(a)(2)). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). Legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Robertson v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1981). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by 275 F.3d 1187 (9th Cir. 2001).
1. Plaintiff's Equal Protection ...