The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING MOTION TO DISMISS (DOC NO. 2.)
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 ...