The opinion of the court was delivered by: The Honorable David O. Carter, Judge
[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective most recent address of record in this action on this date.]
Kristee Hopkins Not Present
PROCEEDING (IN CHAMBERS): ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PURSUANT TO F.R.C.P. 41(b) AND/OR F.R.C.P RULE 12(b)(6)
Before the Court is Defendants' Motion to Dismiss pursuant to Fed. R. Civ. P. 41(b), or in the alternative, Fed. R. Civ. P. 12(b)(6). The Court finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After reviewing the moving, opposing, and replying papers, and for the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion.
a. Plaintiff's Allegations
On July 2, 2007, Plaintiff was scuba diving with a friend in Laguna Beach, California. After returning to land, Plaintiff was "confronted by lifeguards, police and other individuals." Plaintiff was permitted to call his attorney after the fourth request to do so but during the call, Defendant Donohue removed Plaintiff's cell phone out of his hand and placed him in a "pain compliance hold." Following the pain compliance hold, Defendant Collazo cited Plaintiff with a violation of Laguna Beach Municipal Code § 18.21.030 (b), which makes it a misdemeanor to fail to obey a lifeguard.
Plaintiff Leonard J. Porto III ("Plaintiff") filed this action on May 14, 2008 against Defendant City of Laguna Beach and Does 1 through 10. Plaintiff filed a first amended complaint ("FAC") on September 22, 2008, adding ten new defendants and alleging: (1) claims under 42 U.S.C. §§ 1983, 1986 against Defendants Donohue and City of Laguna Beach ("City"); (2) a claim against City for failure to train police officers; (3) claims under 42 U.S.C. §§ 1983, 1985 and 1986 against Defendants McGervey and City; (4) a claim against City for failure to train lifeguards; (5) violation of the First Amendment; (6) violation of the Fifth and Fourteenth Amendments; (7) false arrest and imprisonment; (8) intentional and negligent infliction of emotional distress; (9) selective and vindictive enforcement, conspiracy; (10) violation of the California Constitution and California Coastal Act; and (11) violation of the Ninth Amendment.
On October 15, 2008, Defendants moved to dismiss all claims. Plaintiff filed an Opposition on November 3, 2008. Defendants filed a timely Reply on November 10, 2008. On November 19, 2008, the Court granted Defendants' Motion. Specifically, Defendants' Motion to dismiss all claims against Defendant Donohue in his official capacity and against Defendant City was granted as to claim one without leave to amend. Defendants' Motion to dismiss Plaintiff's second, third, fourth, fifth, sixth, and eleventh claims was granted without leave to amend. Defendants' Motion to dismiss Plaintiff's state tort claims (seventh, eighth, ninth, and tenth claims for relief) for failure to show compliance with the California Government Claims Act was granted with twenty days leave to amend from the date of the order. On December 15, 2008, Plaintiff filed a Notice of Appeal to the Ninth Circuit of the Court's order granting Defendants' Motion Plaintiff filed a Second Amended Complaint ("SAC") on December 9, 2008, alleging the following causes of action: (1) a claim under 42 U.S.C. § 1983 against Defendant Donohue in his individual capacity; (2) a claim under 42 U.S.C. §§ 1983, 1986 against Donohue in his individual capacity and all other defendants in their official and individual capacity for negligence; (3) a claim under 42 U.S.C. § 1983 for false arrest and imprisonment; (4) a claim under 42 U.S.C. § 1983 for intentional and negligent infliction of emotional distress; (5) a claim under 42 U.S.C. §§ 1983, 1985(3) for selective and vindictive enforcement, conspiracy; and (6) a state claim pursuant to 28 U.S.C. § 1367 for violation of the California Constitution and California Coastal Act. Further, Plaintiff seeks damages and injunctive relief.
In response to Plaintiff's Second Amended Complaint, Defendants brought the instant motion, seeking to dismiss the action under two legal theories. First, under Fed. R. Civ. P. 41(b), Defendants argue that Plaintiff's SAC should be dismissed because Plaintiff failed to comply with the Court's prior order granting Defendants' Motion and only directing Plaintiff to amend his state law claims. Alternatively, Defendants argue that Plaintiff's SAC also fails to state any claims upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
Under Fed. R. Civ. P. 41(b), a defendant can move to dismiss the action or any claim against it if the plaintiff fails to prosecute the action or fails to comply with the federal rules or a court order. A dismissal under Fed. R. Civ. P. 41(b) typically constitutes an adjudication on the merits. In deciding to dismiss an action pursuant to Rule 41(b), the Court can consider the strength or weakness of the plaintiff's case. McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). While the "district judge should first consider less drastic alternatives [before dismissing a case under Rule 41(b)], [it] 'need not exhaust ...