The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) GRANTING DEFENDANT TO DISMISS; (Doc. No. 16) (2) GRANTING IN PART DEFENDANT SAN DIEGO UNIFIED PORT DISTRICT'S SAN DIEGO UNIFIED PORT DISTRICT MOTION TO DISMISS; (Doc. No. and CITY OF CORONADO, 17) and MOTION (3) GRANTING PLAINTIFF LEAVE TO AMEND.
Presently before the Court are: (1) a motion to dismiss plaintiff's Second Amended Complaint filed by defendant San Diego Unified Port District ("the Port"); and (2) a motion to dismiss plaintiff's Second Amended Complaint filed by defendant City of Coronado ("the City"). For the following reasons, the Court (1) grants the City's motion to dismiss; (2) grants in part the Port District's motion to dismiss; and (3) grants plaintiff leave to amend certain causes of action.
Plaintiff John Gallagher has a weak and shortened left leg due to childhood polio. Plaintiff brings this case primarily to challenge the Port's failure to re-issue the anchorage permit for his boat in early 2007. Plaintiff previously sought an accessible anchorage for his boat in Gallagher v. San Diego Unified Port District, 98-cv-0615 J (JAH) ("Gallagher I").*fn1 In that case, plaintiff alleged the "A-8 anchorage," which provided free long-term anchorage, was not accessible to him because of the choppy surface waters and the distance from his anchorage site to the shore. Plaintiff accepted the Port's third offer of judgment in that case in November of 2000. The offer's terms included: "The [Port] shall designate Anchorage Area A-9 (the "Cruiser Anchorage") as an alternative free, long-term anchorage for qualified individuals with a disability who, because of that disability, are unable to use Anchorage Area A-8 . . . .The [Port] shall issue a permit to Plaintiff John Gallagher to anchor in Anchorage Area A-9 as an alternative free, long-term anchorage area, subject to all the regulations applicable to A-8." (Port's Ex. 3 ISO Motion .)
On September 5, 2006, the Port adopted amendments to § 4.36 of the Unified Port District Code ("UPDC"). In pertinent part, those amendments provide: "Upon enactment of this Section 4.36, as amended, the Port shall discontinue issuing Permits to anchor in the A-8 Anchorage, except for the purpose of re-issuing Permits to Vessels with current valid Permits and meeting all the requirements and conditions of this Section." (Port's Ex. 7 ISO Motion (providing UPDC § 4.36(c)(11))).*fn2 The regulations of the A-9 Anchorage require permittees to comply with all regulations of the A-8 Anchorage. (Port's Ex. 5 ISO Motion (providing UPDC § 4.38(h)(4)(d))). Accordingly, the elimination of the A-8 anchorage also ended the Port's issuance of A-9 permits.
Plaintiff's boat was vandalized on July 26, 2006, two days after he received his A-9 permit. Plaintiff alleges he attempted to renew his permit in January of 2007, but the Port ignored his letters and phone calls. Plaintiff eventually received a letter from the Port dated July 6, 2007.
(Port's Ex. 8 ISO Motion.) The letter directed plaintiff's attention to the September 5, 2006 amendments regulating the A-8 and A-9 anchorages and explained the Port would not renew plaintiff's permit because it expired "in or about" January of 2007. (Id.)
Plaintiff filed suit on May 19, 2008 and filed a first amended complaint ("FAC") on July 11, 2008, naming the Port and the City. The Court dismissed the FAC in its entirety on October 1, 2008. ("Dismissal Order") (Doc. No. 14.) The Dismissal Order granted plaintiff leave to amend his complaint. Plaintiff filed a second amended complaint ("SAC") on November 12, 2008. (Doc. No. 15.) The SAC alleges five causes of action: (1) violation of the Americans with Disabilities Act, ("ADA"), 42 U.S.C. § 12101; (2) discrimination in violation of the ADA, 42 U.S.C. § 12132; (3) retaliation in violation of the ADA, 42 U.S.C. § 12203; (4) violation of 42 U.S.C. § 1983; and (5) breach of California state laws protecting the disabled.
On December 2, 2008, the City filed a motion to dismiss the complaint, or alternatively for a more definite statement. (Doc. No. 16.) On December 3, 2008, the Port filed a motion to dismiss the SAC. (Doc. No. 17.) On December 29, 2008, plaintiff filed an opposition to defendants' motions and the Port's request for judicial notice. (Doc. Nos. 18, 19.) Plaintiff also filed a request for judicial notice. (Doc. No. 18-1.) The Port filed a reply on January 2, 2009 (Doc. No. 20,) and the City filed its reply on January 5, 2009. (Doc. No. 22.) The Court heard oral argument on defendants' motions on Monday, January 12, 2009.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). To survive a Rule 12(b)(6) motion, a complaint generally must satisfy only the minimal notice pleading requirements of Fed. R. Civ. P. 8(a)(2); Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007). In deciding a motion to dismiss for failure to state a claim, the court's review is generally limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). The Court recognizes the mandate to construe a pro se plaintiff's pleadings liberally in determining whether a claim has been stated. Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996).
2. Defendant City of Coronado's Motion to Dismiss
The FAC contained no specific factual allegations against the City of Coronado. The Dismissal Order stated that for plaintiff to state a claim against the City, plaintiff needed to explain the factual basis of his claim and identify the relief he sought from the City. Plaintiff added to his SAC the allegation that "anchorage 5 (Glorietta Bay), does not have a disabled ...