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Watkins v. Sanders


December 12, 2008


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


On August 1, 2008, Plaintiff Rodney M. Watkins commenced this action against Defendants Jerry Sanders and Scott Peters. Watkins is the owner of a small business which conducts scuba and kayak tours in the La Jolla Cove area of San Diego. Defendant Sanders is San Diego's strong mayor and Defendant Peters is the District 1 City Council Member. Watkins alleges, among other things, that Defendants are implementing a request for proposal process that violates statutory and constitutional provisions regarding unobstructed use of the Pacific Ocean.

On September 8, 2008, Defendants filed this motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim. Watkins filed an opposition.

Defendants filed a reply, along with an application for leave from the applicable page limits.

The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1(d.1). As a preliminary matter, the Court GRANTS Defendants' motion for leave from the page limits. (Doc. No. 11.) Additionally, for the reasons stated below, the Court GRANTS Defendants' motion to dismiss (Doc. No. 2), and DISMISSES the complaint with leave to amend.


Watkins is a San Diego resident and the owner of a small business engaged in recreational scuba and kayak tours in San Diego's La Jolla Cove and La Jolla Shores area. (Compl. ¶1.) Watkins alleges that the City has initiated a request for proposal ("RFP") process, such as the one currently applied to surf camps, which will be implemented upon the kayak business. (Id. ¶¶3, 15, 16, 26.) Watkins claims that the RFP process is part of an entrepreneurial or public/private partnership program that was developed and adopted by the City in 1993. (Id. ¶15.)

Watkins alleges that the RFP process violates numerous statutory and constitutional provisions including California Government Code § 39,933 and Article X Section 4 of the California Constitution, as well as 42 U.S.C. §1983 and 18 U.S.C. §1961. (Compl. ¶¶7, 20, 21, 23, 25.) Watkins further alleges that San Diego, through a regulatory permit requirement, exacts fees that amount to an illegal tax obstructing the use of the Pacific Ocean along the La Jolla coastline. (Id. ¶¶20, 22, 25, 27, 31, 33.)

On April 3, 2008, Watkins filed a claim against the City seeking the return of his allegedly illegally obtained permit fees. (Compl. ¶8.) On May 22, 2008, the City formally rejected the claim. (Id.) On August 1, 2008, Watkins filed the instant action in the San Diego Superior Court challenging the proposed RFP and seeking the return of his permit fees. On September 2, 2008, Defendants removed based on Watkins' claims for violation of his federal constitutional rights, and 42 U.S.C. §1983 and 18 U.S.C. §1961. On September 8, 2008, Defendants filed this motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).


A. Rule 12(b)(1) Motion to Dismiss

Rule 12(b)(1) provides that a court may dismiss a claim for "lack of jurisdiction over the subject matter[.]" Fed.R.Civ.P. 12(b)(1). Although the defendant is the moving party in a motion to dismiss, the plaintiff is the party invoking the court's jurisdiction. Therefore, plaintiff bears the burden of proof on the necessary jurisdictional facts. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001).

"Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (citing Thornhill Publishing Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)); see also Marriot Intern., Inc. v. Mitsui Trust & Banking Co., Ltd., 13 F. Supp. 2d 1059, 1061 (9th. Cir. 1998).

Jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears the court lacks jurisdiction. Fed.R.Civ.P. 12(b)(1);see also Snell v. Cleveland, 316 F.3d 822, 826 (9th Cir. 2002). In ruling on a challenge to subject matter jurisdiction, the district court is ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. See Thornhill, 594 F.2d at 733. In such circumstances, "[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. However, where the jurisdictional and substantive issues are so intertwined that the jurisdictional question depends upon resolution of factual issues going to the merits, the jurisdictional determination should await either a motion going to the merits or trial. Id. at 733-35.

B. Rule 12(b)(6) Motion to Dismiss

The Court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact," are assumed to be true. Id. The court also must construe all factual allegations "in the light most favorable to the nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996).

As the Supreme Court recently explained, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1964--65. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

C. Rule 12(f) Motion to Strike

Rule 12(f) provides that a federal court may strike from the pleadings any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed.R.Civ.P. 12(f). The function of a motion to strike is to avoid unnecessary expenditures that arise throughout litigation by dispensing of any spurious issues prior to trial. Chong v. State Farm Mut. Auto. Ins. Co., 428 F.Supp.2d 1136, 1139 (S.D. Cal. 2006); Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Courts generally grant a motion to strike only where "it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." LeDuc v. Kentucky Cent. Life Ins. Co.,814 F.Supp. 820, 830 (N.D. Cal. 1992).


A. Watkins' Class Allegations are Stricken

Defendants contend that the class-action allegations should be dismissed because Watkins does not meet the requirements or comply with court rules applicable to class actions. (Def.'s Supp. Mem. at 10.) Watkins' response does not address Defendants' contentions.

All class actions in federal court must meet the prerequisites of Federal Rule of Civil Procedure 23(a). First, the class must be so numerous that joinder of all members individually is "impracticable." Fed.R.Civ.P. 23(a)(1). Second, there must be questions of law or fact common to the class. Id. 23(a)(2). Third, the claims or defenses of the representative parties must be typical of the claims or defenses of the class. Id. 23(a)(3). And fourth, the person representing the class must be able to fairly and adequately protect the interests of all class members. Id. 23(a)(4).

Moreover, although a non-attorney may appear in propia persona on his own behalf, that privilege is personal to him. McShane v. United States, 366 F.2d 286, 288 (9th Cir.1966). A non-attorney has no authority to appear as an attorney for others. C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697-698 (9th Cir. 1987). Further, even an attorney generally may not serve as both class representative and class counsel. See, e.g., Susman v. Lincoln American Corp., 561 F.2d 86, 90-92 (7th Cir.1977); In re Chiron Corp. Securities Litigation, 2007 WL 4249902 at 17 (N.D. Cal. 2007).

Here, Watkins is proceeding in pro per. He has not alleged he is an attorney and therefore may not serve as an attorney for others. Moreover, Watkins may not act as both class counsel and class representative. Accordingly, the Court STRIKES Watkins' class allegations because they have no possible bearing on the subject matter of the litigation.*fn1

B. Watkins' RFP Process Claim is not Ripe

Defendants contend that Watkins' claim regarding the proposed kayak RFP process is not ripe under both state and federal standards. (Def.'s Supp. Mem. at 5--7.) Watkins states that there is a "RFP process afoot which should be nipped in the bud." (Pl.'s Response ¶4.) Watkins contends that the RFP process will, like the process already in place for surf camps, charge him an annual flat fee plus 10% of his gross revenue. (Compl. ¶¶26, 27.)

When evaluating whether a claim is ripe, the court considers (1) whether the issues are fit for judicial decision, and (2) the parties' hardship in withholding court consideration. Abbott Labs v. Gardner, 387 U.S. 136, 149 (1967). With respect to claims against the government, the core question is whether the agency has completed its decision-making process, and whether the result of that process will affirmatively affect the parties, rather than possibly affect the parties in the future. Franklin v. Massachusetts, 505 U.S. 788,797 (1992).

Here, the RFP process with regards to Watkins' kayak and scuba business has not been implemented. (Def.'s Supp. Mem. at 7:5--6.) In fact, Watkins concedes that the RFP process has not yet been implemented when he states that there is an "RFP process afoot which should be nipped in the bud." (Pl.'s Response ¶4.) Because it appears that the government has not completed its decision making process, it is unclear that the result of the RFP will affirmatively effect Watkins. Therefore, Watkins' challenge to the RFP process is not ripe.*fn2

C. Watkins' Complaint is Vague

Federal Rule of Civil Procedure 8(a) provides that a "pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction. . .; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed.R.Civ.P. 8(a). When a complaint fails to comply with these requirements, the district court has the power, on motion or sua sponte, to dismiss the complaint. Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995); Marshall v. United Nations, 2006 WL 947697, 2--3, (E.D. Cal. 2006). Such a dismissal is appropriate in "cases in which the complaint is [ ] confused, ambiguous, vague, otherwise unintelligible...." Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir.1987). Even if the factual elements of the cause of action are present, but are scattered throughout the complaint and are not organized into a "short and plain statement of the claim," dismissal for failure to satisfy Rule 8(a)(2) is proper. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir.1996) (stating that a complaint should set forth "who is being sued, for what relief, and on what theory, with enough detail to guide discovery."). Further, "[t]he propriety of dismissal for failure to comply with Rule 8 does not depend on whether the complaint is wholly without merit." Id. at 1179.

Additionally, under Federal Rule of Civil Procedure 10(b), plaintiffs should state "each claim founded on a separate transaction or occurrence" as a "separate count." Fed.R.Civ.P. 10(b). Rule 10 further provides that a "party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Fed.R.Civ.P. 10(b)(emphasis added).

Here, Watkins' complaint does not comply with either Rule 8 or Rule 10. Although the complaint is replete with factual allegations, as well as references to various constitutional provisions, statutes and other laws, it is extremely difficult to discern from the complaint which legal theories Watkins intends to pursue and what relief he is seeking.

The lack of clarity is compounded by Watkins' failure to use headings in the complaint to identify the separate claims (i.e., "counts") that he is asserting in this lawsuit. Instead, the complaint is divided into the following sections: "The Parties" (Compl., ¶¶1--7); "Preliminary Matter: Filing and Rejection of Claim" (Id., ¶8); "Subject Matter of the Controversy; the Public Boat Launch at La Jolla Shores" (Id., ¶¶9--10); "Applicable Statutory and California Constitutional Provisions: Preemption" (Id., ¶¶11--14); "The Controversy" (Id., ¶15--30); "Past History" (Id., ¶¶31--18*fn3 );

"Discriminatory Pricing" (Id., ¶24*fn4 ); and "Wherefore Plaintiff Prays" (Id., ¶¶1--4). Based on these headings, it is difficult to discern whether Watkins' claims consist of only those identified under "The Controversy" section, or whether he intends to pursue claims identified elsewhere.

With respect to the"The Controversy" section, it is unclear whether Watkins is challenging only the proposed RFP relating to kayaks, or the City's use of RFPs in general. (See Compl., ¶16.) Additionally, it is unclear whether Watkins is alleging only that the RFP violates the California Constitution Article X, Section 4 and Government Code § 39,933 (see Compl., ¶11--13, 15--18), or that the RFP also violates other state and federal laws.*fn5

Moreover, the complaint's allegations are insufficient to establish whether subject-matter jurisdiction exists. Defendants removed this case from the San Diego Superior Court based on the complaint's reference to alleged violations of Watkins' "federal constitutional rights, specifically the Fifth Amendment and Fourteenth Amendment," and 42 U.S.C. §1983 and 18 U.S.C. §1961. (See Not. of Removal, 1:25--27.) With respect to these alleged violations, however, the complaint appears devoid of supporting factual allegations. Instead, these violations are based on conclusory statements. (See Compl., ¶¶7, 23) In short, the complaint does not include a short and plain statement of the federal claims showing that Watkins is entitled to relief. And to the extent Watkins cannot state a federal claim, this Court lacks subject-matter jurisdiction, and the case must proceed in state court.


For the reasons discussed above, the Court GRANTS Defendants' motion to dismiss (Doc. No. 2.), and DISMISSES the complaint WITH LEAVE TO AMEND. Watkins' First Amended Complaint must be filed and served on or before January 12, 2009.

In light of the foregoing, Watkins' motion for summary adjudication (Doc. No. 6) and motion for delivery of an archived handwritten record (Doc. No. 13) are DENIED as moot.


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