The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) GRANTING DEFENDANT CITY OF CORONADO'S MOTION TO DISMISS; (Doc. No. 36) (2) GRANTING IN PART AND DENYING IN PART DEFENDANT SAN DIEGO UNIFIED PORT DISTRICT'S MOTION TO DISMISS; (Doc. No. 38) and (3) GRANTING IN PART AND DENYING IN PART DEFENANT SAN DIEGO UNIFIED PORT DISTRICT'S MOTION TO STRIKE (Doc. No. 38)
Presently before the Court are Defendant San Diego Unified Port District's (the "Port") and Defendant City of Coronado's (the "City") motions to dismiss the third amended complaint ("TAC") pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. Nos. 36 and 38.) As part of its motion to dismiss, the Port has also moved for judicial notice of several documents and moved to strike Plaintiff's damages claims. For the reasons stated herein, the Court grants the City's motion, grants Port's motions in part, and grants the Port's request for judicial notice in part.
Plaintiff John Gallagher has a weak and shortened left leg due to childhood polio. Plaintiff brings this case, inter alia, 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 1998 when he filed the federal action Gallagher v. San Diego Unified Port District, 98-cv-0615 J (JAH) ("Gallagher I").*fn1 The main factual allegations of Gallagher I were that: (1) the Port denied the disabled access to San Diego Bay due to inadequate docks, ramps, and facilities (the "Accessibility Claims"); and (2) the District's anchoring regulations discriminated against the disabled, resulting in their inability to anchor in the San Diego Bay (the "Anchoring Claim").
On August 8, 2000 Gallagher I resolved with respect to the Accessibility Claims only, when the parties signed a "Settlement Agreement and Release of Claims." [("Settlement Agreement"), Ex. 3 ISO Motion.] On November 17, 2000, in order to resolve the Anchoring Claim, the Port made a Third Offer of Judgment to Plaintiff wherein the Port agreed to issue a permit to Plaintiff to anchor in a portion of the A-9 anchorage free and long-term, subject to all the regulations applicable to the A-8 anchorage, as a reasonable accommodation. [("Third Offer of Judgment"), Port's Ex. 4 ISO Motion.] Plaintiff accepted the third offer of judgment on November 27, 2000. (Port's Ex. 5 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 provided: "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. 8 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. 7 ISO Motion (providing UPDC § 4.38(h)(4)(d)).] Accordingly, the halt in the issuance of new A-8 anchorage permits also ended the Port's issuance of new 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. 9 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.)
II. Procedural Background
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, but granted Plaintiff leave to amend. (Doc. No. 14.) Plaintiff filed a second amended complaint ("SAC") on November 12, 2008. (Doc. No. 15.) The Court partially dismissed the SAC on February 6, 2009, ("Second Dismissal Order,") granting Plaintiff leave to amend some of his claims. On May 6, 2009, Plaintiff filed his third amended complaint ("TAC.") The TAC alleges eight causes of action:
(1) discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132; (2) retaliation in violation of the ADA, 42 U.S.C. § 12203; (3) injunctive relief pursuant to California state laws protecting the disabled; (4) "impairment of contracts" in violation of the United States Constitution; (5) violation of 42 U.S.C. § 1983 based on impairment of contracts; (6) violation of 42 U.S.C. § 1983 based on constitutional due process violations; (7) tortious breach of contract; and (8) violation of 42 U.S.C. § 1983 based on violation of the federal Constitution's Ex Post Facto clause.
The City and the Port now move to dismiss the TAC. Plaintiff filed an opposition that addresses both motions, and Defendants have each filed reply briefs. The Court finds the motions suitable for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1).
A complaint survives a motion to dismiss under Fed. R. Civ. P. 12(b)(6) if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.544, 570 (2007). The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Notwithstanding this deference, the court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009). Moreover, it is improper for a court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Accordingly, a reviewing court may begin "by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S.Ct. at 1950.
However, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.' " Id. (citing Twombly, 550 U.S. at 557). 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). The Court may deny leave to amend the complaint where a complaint previously has been amended, or where amendment would be futile. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).
Fed. R. Civ. P. 12(f) states, in relevant part: "Upon motion made by a party . the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." A motion to strike may be used to strike a prayer for relief when the damages sought are not recoverable as a matter of law. Bureerong v. Uvawas, 922 F. Supp. 1450, 1479 (C.D. Cal. 1996). However, motions to strike are a drastic remedy and are generally disfavored. 5C Wright & A. Miller, Federal Practice and Procedure § 1380 (3d ed. 2009).
II. The City's Motion to Dismiss the Complaint
Plaintiff's SAC contained only one specific factual basis for his claims against the City: the general allegation that "anchorage 5 (Glorietta Bay), does not have a disabled access boat dock, which dock is owned and operated by defendant City of Coronado." (SAC ¶ 7.) The Court dismissed the SAC's claims against the City in their entirety based on judicially-noticed facts establishing that the Port, not the City, has exclusive control over the A-5 anchorage, and found that Plaintiffs' factual allegations did not give rise to a facially plausible claim for relief. The Court granted Plaintiff leave to amend the complaint against the City, but specifically ordered that any such amendment "must allege facts regarding conduct or facilities that are under the City's control." (Second Dismissal Order at 5.) Plaintiff's TAC has simply reiterated the allegation that "defendant City of Coronado owns and operates the dockage facility in anchorage Area A-5 and fails to provide disabled access to said dockage facility" as a basis for his claim that the City discriminated against him in violation of the ADA. (TAC ¶ 13.) The only other cause of action Plaintiff brings against the City is one for injunctive relief, and under that cause of action he fails to allege specific factual allegations supporting his claim.
As the Court has already established that the A-5 anchorage is not under the City's control, Plaintiff has not complied with the Court's order that any amendment must allege facts regarding conduct or facilities that are under the City's control. Accordingly, the Court dismisses Plaintiff's complaint against the City with prejudice.
III. The Port's Motion to Dismiss ...