The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE DEFENDANTS' MOTION TO DISMISS
Before the court is a 12(b)(6) motion to dismiss brought collectively by Defendants Delano Union School District, Ronald Garcia, Joseph Hunter, and Linda Enriquez ("Defendants"). The motion is directed at the claims asserted by Plaintiff Alan Lutz ("Plaintiff") in his First Amended Complaint ("FAC") which he filed after the court granted Defendants' prior motion to dismiss.
Previously, on July 14, 2008, Plaintiff filed a complaint against his employer, Delano Union School District, and Garcia, Hunter, and Enriquez, in the Kern County Superior Court. On November 20, 2008, the action was removed to this court based on federal question jurisdiction. In his state-court complaint, Plaintiff alleged a violation of his First Amendment rights under 42 U.S.C. § 1983. Plaintiff also asserted a supplemental state law claim under California Civil Code § 52.1. Defendants filed a prior 12(b)(6) motion which this court granted with leave to amend. After Plaintiff amended his complaint, Defendants filed the present motion to dismiss which raises essentially the same arguments as the prior motion. Plaintiff filed an untimely opposition.
The following background facts are taken from the FAC.*fn1
Plaintiff is employed by the Delano Union School District (the "School District"), a public school district in California. (Doc. 11 at 1-2.) Defendants Garcia, Hunter, and Enriquez are also employed by the School District. (Id. at 2.)
Plaintiff's Alleged Protected "Speech" And The Subsequent As alleged:
On demanded of defendant LINDA ENRIQUEZ that she explain or about February 8, 2007, [P]laintiff verbally immediately why in the capacity of principal with DELANO on the basis of favoritism was being demonstrated by her United States of children whose national origin was other than that of the satisfactory answer, America and, upon not receiving a her immediate proximity that she was biased against made loud and public proclamation in students whose national origin United States of America. and/or ancestry was the (Id.) Plaintiff alleges that his "proclamation" against Enriquez was an exercise of his right, under the United States and California constitutions, "to free speech on matters of public importance -- to wit; disparate treatment of students in public school settings based upon their national origin and/or ancestry." (Id.) Plaintiff alleges that defendants took "adverse actions" against him in retaliation for his speech. (Id.) Plaintiff asserts:
In direct retaliation for this speech, defendants and his employment with DELANO by making verbal and written each of them took adverse actions against [P]laintiff in [P]laintiff caused complaints against him which complaints were that and/or obtain access to LINDA ENRIQUEZ for uttering the speech abused his position as an employee of DELANO to a disturbance in a public school characterized hereinabove, and further interfered with Amendment I of the United States Constitution by the free exercise of rights secured to [P]laintiff by directing him not to utter speech accusing LINDA ENRIQUEZ of disparate national origins and/or ancestry upon threat of sanctions treatment of students based upon their actions against defendant [sic], including, but not in his employment with DELANO and by taking retaliatory limited to causing him to suffer a 30 day suspension of his compensation and benefits therefore, which actions employment with DELANO and the corresponding loss of [P]laintiff's employment was suspended for 30 days and he in intentionally and adversely, without just cause, resulted an interference with [P]laintiff's employment in that lost otherwise be entitled to receive and thereby caused compensation and benefits therefore that he would in his employment in [P]laintiff of working to suffer conditions hardships and in terms of compensation terms benefits that would otherwise have been earned by and caused [P]laintiff to lose income and/or other [P]laintiff in the course of his employment with DELANO.
(Id. at 2-3.) Based on these allegations, Plaintiff alleges two claims in the FAC.
Plaintiff's "First Cause of Action" is for an alleged violation of the First Amendment under 42 U.S.C. § 1983. Plaintiff asserts that the retaliation taken against him for his speech violated the First Amendment. This claim is asserted against each defendant. (Id. at 3.) With respect to the individual defendants, Plaintiff alleges that at the time of the claimed retaliation, Garcia, Hunter and/or Enriquez "were then and there acting out of personal animosity towards [P]laintiff to dissuade him from exercising his right to free speech" and were "acting outside the scope and purpose of their employment with DELANO." (Id. at 4.)
Plaintiff's "Second Cause of Action," brought under California Civil Code § 52.1, asserts a violation of the free speech provision of the California Constitution and the First Amendment to the United States Constitution. (Id. at 5.) This claim is also asserted against each defendant. Plaintiff alleges that Defendants interfered with his free speech rights under the California and United States constitutions by "threats, coercion and/or intimidation." (Id.)
In their motion Defendants seek dismissal of the § 1983 claims against the School District and the individual defendants in their official capacity. Defendants argue that Plaintiff has failed to sufficiently plead a policy, custom or practice of the School District that is allegedly responsible for the asserted constitutional violation.
Defendants also seek dismissal of Plaintiff's state law claim alleged under California Civil Code § 52.1. Defendants argue that Plaintiff has failed to sufficiently plead the requisite elements to survive a 12(b)(6) motion.
E. Plaintiff's Untimely Opposition
Given the hearing date on this motion -- August 3, 2009 -- Plaintiff's opposition brief was due on July 20, 2009, fourteen days prior to the hearing date. See Local Rule 78-230(c). Plaintiff filed his opposition on July 28, 2009, several days beyond the deadline. Plaintiff did not move for an extension of time to file an opposition.*fn2 Future compliance with the local rules is expected.
In his opposition brief, Plaintiff raises arguments only in defense of his first cause of action, i.e., his § 1983 claim. Plaintiff states that he has "decided not to oppose defendants' motion to dismiss the second cause of action in the FAC and [he] asks this court to take this as his notice of non-opposition to that portion of defendants' motion to dismiss the FAC." (Doc. 16 at 3.) Plaintiff states that he "believes that his claim for redress will be fully addressed by the allegations set forth in the first cause of action pled under the provisions of 42 U.S.C. ...