The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
In this action brought under Bivens Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), Defendants, FBI agents and Assistant United States Attorneys, brought a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs filed an opposition and Defendants replied. For reasons which follow, Defendants' motion is GRANTED IN PART AND DENIED IN PART.
In the operative complaint,*fn1 Plaintiffs allege that they organized a business venture in El Centro, California whereby they intended to set up an "assistance clinic" for interested individuals over a three-day period to obtain proof of United States residency. (Consolidated Compl. ("Compl.") at 3 & Ex. B.) Plaintiffs maintain that their service was necessitated by events such as the Calexico Unified School District's refusal to give access to school to students who were unable to document their residency within the school district in the United States. (Id. at 3.) Plaintiffs learned from the local newspaper that one method to document one's residency was to provide a notarized statement of residency. (Id. at 3 & Ex. A.) Plaintiffs rented a conference room at Vacation Inn Motel in El Centro for a three-day period June 8 through 10, 2007 and hired notaries. They distributed 1,500 fliers and had an ad placed in the local Spanish-language newspaper. (Id. at 3-4 & Ex. B & C.) In exchange for $95.00, they offered notarized documentation of residency in the United States. (Id. Ex. B.) The fliers explained that this may be necessary because of the upcoming immigration reform. (Id.)
On June 5, 2007 Plaintiff Franklin E. Garrett, Jr. contacted Carmen Wolf of CWS Notary Seminars to obtain contact information for notaries for Plaintiff's event. The same day, Ms. Woolf contacted the FBI's El Centro Resident Agency. Based on Ms. Woolf's call and subsequent interview, FBI agents persuaded her to contact another person who then placed a telephone call to Mr. Garrett, which was monitored by the FBI without a warrant. (Id. at 4-5 & Ex. D.) The object of monitoring the call was to gather evidence in connection with Plaintiffs' venture, which the FBI suspected was an alien smuggling organization. (Id. Ex. D.)
On June 6, 2007 a stationary audio surveillance device was placed in Plaintiffs' conference room at Vacation Inn Motel without a warrant. (Compl. at 6.) On June 7, 2007 an FBI agent conducted surveillance of the motel, another agent tailed Plaintiff Albert E. Yendes, Jr., and his son as they ran errands in El Centro, and at approximately 6 p.m. an agent observed and confiscated one of Plaintiffs' fliers for the assistance clinic. (Id. at 7.) In the evening of the same day, Plaintiffs met with two notaries at the conference room in preparation for the three-day clinic, and they jointly prepared a Statement of Residency they intended to use. (Id. at 7 & Ex. F.) Two agents followed one of the notaries after the meeting, interviewed her, and "coerced her" into "participating in the consensual monitoring of Plaintiffs." (Id. at 7.)
The FBI prepared a plan dated June 7, 2007 with the advice and approval of two Assistant United States Attorneys. (Compl. at 6-7 & Ex. I.) The mission was "to conduct surveillance, interdict illegal aliens and obtain evidence that [Plaintiffs] are involved in facilitating illegal residency documents." (Id.) The anticipated outcome was "the arrest of identified illegal aliens, seizure of proceeds from the activity and the arrest of all identified participants to include [Plaintiffs]." (Id.)
The operation, as planned, was to involve a team of several government agencies: FBI, El Centro Police Department ("ECPD"), United States Border Patrol ("USBP") and Immigration and Customs Enforcement ("ICE"). (Id.) On the morning of June 8, 2007, at the briefing before the operation, however, the ECPD did not attend, the USBP withdrew all but one agent, and ICE withdrew all of its agents. (Compl. Ex. E.) The operation was therefore conducted by the FBI alone with one USBP agent.
When Plaintiffs opened the clinic at 10:00 a.m. on June 8, 2007, an FBI surveillance agent entered the conference room and requested to take a copy of the Statement of Residency form. (Compl. at 8-9.) Plaintiffs suggest that the notary, whom the agents had followed and interviewed the previous day, used a monitoring device while in the conference room, because FBI's audio monitoring ceased when she left the conference room at 11:20 a.m. (Id. at 9.) From the FBI's perspective, the operation as conducted consisted of surveillance in and around the Vacation Inn Motel until approximately 1:30 p.m. When it appeared that no one would be showing up to have their United States residency documented, the agents decided to approach Plaintiffs for an interview. (Compl. Ex. E.)
At approximately 1:20 p.m., Plaintiffs and Mr. Yendes' son left the conference room and went to a restaurant. (Compl. at 9.) While they were gone, six armed agents entered the conference room, separated all persons, interrogated them and inspected the conference room. When Plaintiffs and Mr. Yendes' son were returning to the conference room, they were "ambushed . . . in a rush" by six armed agents in street clothes. The agents showed their badges, "bracketed" Plaintiffs and Mr. Yendes' son in a semi-circle, and directed the three men to go with them for questioning. Mr. Yendes was taken upstairs in the hotel by two agents and was questioned approximately thirty minutes, while Mr. Garrett was taken to the conference room by two other agents, where he was questioned for approximately one hour. (Id. at 9.) Plaintiffs allege they "were at no point at liberty to leave or to deny the Defendants' demands." (Id. at 10.) Subsequently, the FBI acknowledged that there was no evidence of any unlawful activity and closed the case file. (Id.)
In the operative complaint Plaintiffs allege violations of their Fourth and Fifth Amendment rights under Bivens, for which they seek damages. (Compl. at 19-23.)
Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). They argue that Plaintiffs did not state a claim for any constitutional violation and if they did, Defendants are protected by qualified immunity. A Rule 12(b)(6) motion tests the sufficiency of the complaint.*fn2 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets and citations omitted).
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. , 643 F.2d 618, 624 (9th Cir. 1981). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).
Defendants urge the court to apply the pleading standard adopted in Iqbal v. Ashcroft, which held "that a complaint may survive a motion to dismiss only if, taking all well-pleaded factual allegations as true, it contains enough facts to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citation omitted). Plaintiffs are proceeding pro se, however, and their operative complaint "'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Hebbe v. , __ F.3d __, 2010 WL 2947323 (9th Cir. Jul. 29, 2010), citing Erickson v. Pardus, 551 U.S. 89, 94 (2007). "Because Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings, [the courts] continue to construe pro se filings liberally." Id. This is particularly important where, as in the instant case, Plaintiffs are pro se litigants in a civil rights matter. See Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (courts "have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.").
Plaintiffs allege that they were seized when six armed agents ambushed them, separated them and escorted them to separate locations for questioning. (Compl. at 9-10, 20.) Plaintiffs were interrogated for approximately thirty minutes and one hour respectively and "were at no point ...