The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING DEFENDANT RICHARD SAXTON AND DEFENDANT DAVID GORDON'S MOTIONS TO DISMISS
Defendant Richard Saxton ("Saxton") filed a dismissal motion on December 29, 2009, under Federal Rule of Civil Procedure ("Rule") 12(b)(6), arguing the claims against him in what Plaintiffs' designate as their Fifth Amended Complaint ("FAC"), are insufficient to state viable claims. What Plaintiffs designate their "Fifth Amended Complaint" is actually their fourth amended complaint. Saxton also moves in the alternative under Rule 12(e) for an order requiring Plaintiffs to make a more definite statement of their claims.
Defendant David Gordon ("Gordon") also filed a motion to dismiss the FAC on January 4, 2010, under Rules 12(b)(6) and 12(b)(1). Gordon also moves in the alternative for an order under Rule 12(f) that would strike Plaintiffs' educational accommodations claim.
Plaintiffs' claims are based on physical abuse Plaintiff Allen Elseth ("Allen") allegedly suffered at B.T. Collins, a juvenile hall in Sacramento, California. Plaintiffs Roger Arden Elseth and Patricia Ann Elseth ("the Elseths") are Allen's parents.
A. Motion to Dismiss under Rule 12(b)(6)
When deciding a Rule 12(b)(6) dismissal motion, all material allegations in the complaint must be accepted as "true and construed in the light most favorable to the nonmoving party." Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, this "tenet" "is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). Further, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to state a claim. Id.
B. Motion to Dismiss under Rule 12(b)(1)
"[T]he court may determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure" "[u]nless the jurisdictional issue is inextricable from the merits of a case." Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). "Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence." Rattlesnake Coal. v. E.P.A., 509 F.3d 1095, 1102 n. 1 (9th Cir. 2007) (internal reference omitted).
C. Plaintiffs' Request for Judicial Notice
Plaintiffs filed an opposition to each motion, and request that judicial notice be taken of four documents: (1) a "[Probation] Order of Commitment, pages 11 to 13, to Juvenile Hall" ("Probation Order"); (2) a "Consent Decree, David Porter v. Verne Speirs, etc, Sacramento Superior Court, No. 06AS03654" ("Consent Decree"); (3) "Photographs of Allen upon which Dr. Rosas [allegedly] relied for her report [of Allen's alleged abuse, on which Plaintiffs base their claims of abuse alleged in the FAC]" ("Photographs of Allen"); and (4) a Sacramento Superior Court Grand Jury Report, which Plaintiffs filed in this action on February 3, 2009 ("Grand Jury Report"). (Request for Judicial Notice ("RFJN") 1.) Gordon opposed Plaintiffs' judicial notice request.
"Federal Rule of Evidence 201(b) permits judicial notice of an adjudicative fact that is 'not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'" United States v. Daychild, 357 F.3d 1082, 1099 (9th Cir. 2004)(citing FED. R. EVID. 201).
Gordon argues the Probation Order has not been authenticated and is disputed. Further, Gordon argues "neither the cover page which identifies the document [,] nor any type of signature page is present, and some portions of page 12 are crossed off." (Opp'n to RFJN 3:21-25.) Gordon argues "[a] trial court . . . . is not permitted to take judicial notice of any facts found by a court in another judicial proceeding" and therefore, "regardless of whether or not [P]laintiff[s] can establish that this document is what [they] claim, the Court cannot take [judicial notice] of any of the facts that are represented by this document." (Id. 4:1-7.) Lastly, Gordon argues the document is irrelevant to the claims against him. (Id. 4:8.)
Plaintiffs have not established the foundation required for the judicial notice they seek of the Probation Order; the document is not signed or otherwise authenticated. Therefore, Plaintiffs' request ...