The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [DOC. 21]
Pending before this Court is Defendants City of San Diego ("City") and Strong Mayor Jerry Sanders' ("Mayor Sanders") motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief may be granted. (Doc. 21.) Plaintiff Rodney M. Watkins ("Watkins") opposes the motion.
The matter being fully briefed, the Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons discussed below, the Court GRANTS Defendants' motion to dismiss Watkins' only federal claim without leave to amend. (Doc. 6.) Additionally, the Court declines to exercise supplemental jurisdiction over Watkins' state claims, and thus those claims must be pursued in state court.
Plaintiff Watkins operates a tour business offering "instruction in scuba diving and scuba educational tours of the underwater marine park located in the Pacific Ocean off La Jolla." (First Amended Complaint ("FAC") [Doc. 20], ¶ 8.) Watkins' business also conducts kayak tours. (Id.)
In order to launch his kayaks, Watkins used a public boat launch located at the end of Avenida de la Playa in the La Jolla Shores area of San Diego. (FAC, ¶ 8.) Watkins alleges that he must use this ramp because it is the only small-boat access to the Pacific Ocean in the area. (Id., ¶¶ 5, 8.)
At some point, the City issued a request for proposal ("RFP") requiring businesses offering kayak tours to purchase a permit in order to use the Avenida de la Playa boat launch. (FAC, ¶ 11.) Watkins alleges that the permit requirement is enforced by City lifeguards, who issue misdemeanor citations pursuant to San Diego Municipal Code 63.20.20 to "commercial kayak operators who attempt to use the La Jolla Shores (LJS) site without having been issued a city permit." (Id., ¶ 12.)
On March 30, 2009, Watkins filed this lawsuit against the City and Mayor Sanders.*fn1 The City responded by filing a motion to dismiss based on lack of subject matter jurisdiction, among other things. Although the complaint asserted federal-question jurisdiction based on the commerce clause, and admiralty and maritime law, the causes of action were based entirely on state law. Accordingly, the Court granted the motion to dismiss, but allowed Watkins leave to amend. However, the order also cautioned Watkins that the FAC "must establish federal subject-matter jurisdiction" and refer to the federal laws Defendants allegedly violated. (Order Granting Def.'s MTD ("Dismissal Order") [Doc. 19], 10:16--11:4.)
On December 18, 2009, Watkins filed the FAC. Under the "Jurisdiction" section, Watkins again asserts federal-question jurisdiction based on "1343--civil rights; 1333-admiralty jurisdiction; and 2201--declaratory judgment." (FAC, ¶¶ 19--23.) Additionally, although not identified in the "Jurisdiction" section, Watkins alleges that Defendants are violating the Act for the Admission of California Into the Union (the "Admission Act").
In response to the FAC, Defendants have filed a motion to dismiss based on lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Rule 12(b)(6). The matter being fully briefed, the Court will grant the 12(b)(6) motion.
II. Motion to Dismiss - Rule 12(b)(1)
Rule 12(b)(1) provides that a court may dismiss a claim for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (citing Thornhill Publishing Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)).
Although the defendant is the moving party in a motion to dismiss, the plaintiff is the party invoking the court's jurisdiction. Therefore, the plaintiff bears the burden of proof on the necessary jurisdictional facts. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001). Furthermore, jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears the court ...