UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION
February 22, 2011
GRACIE DARLENE MCCUE, LAWRENCE GENE MCCUE, AND P.M., BY AND THROUGH HIS GUARDIAN AD LITEM, GRACIE DARLENE MCCUE, SOUTH FORK UNION SCHOOL DISTRICT, ROBIN SHIVE, SHANNON PLAINTIFFS,
DAMRON, KAREN ZUIRN AND SABINE MAXION'S UNDER FRCP (12(B)(6), OR, IN THE ALTERNATIVE, FOR MORE DEFINITE SOUTH FORK UNION SCHOOL ) ) STATEMENT UNDER FRCP 12(E) WITH DISTRICT, A PUBLIC ENTITY; ROBIN SHIVE, A LEAVE TO AMEND PUBLIC EMPLOYEE; SHANNON DAMRON, A ) PUBLIC EMPLOYEE; KAREN ZURIN, A PUBLIC ) EMPLOYEE; SABINE MIXION, A PUBLIC )EMPLOYEE; CHILD PROTECTIVE SERVICES AKA KERN COUNTY CHILD PROTECTIVE SERVICES AKA KERN COUNTY DEPARTMENT OF HUMAN SERVICES, A PUBLIC ENTITY; LINDA LOPEZ, A PUBLIC EMPLOYEE; GABRIELA JOHNSON, A PUBLIC EMPLOYEE; KERN COUNTY SHERIFFS DEPARTMENT, A PUBLIC ENTITY; JAMES D. STRATTON, A PUBLIC EMPLOYEE; RICK KOERNKE, AN INDIVIDUAL; SANDY KOERNKE, AN INDIVIDUAL; AND PERSONS AND ENTITIES UNKNOWN AND DOES 1- 100 INCLUSIVE,
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER GRANTING DEFENDANTS MOTION TO DISMISS This matter came on for hearing on January 31, 2011, on the duly noticed Motion to Dismiss Plaintiffs' Third Amended Complaint under FRCP 12(b)(6), Or, in the alternative, Motion for More Definite Statement, as to Plaintiffs' under FRCP 12(e) filed by Defendants SOUTH FORK UNION SCHOOL DISTRICT; ROBIN SHIVE; SHANNON DAMRON; KAREN ZURIN; and SABINE MIXON, Attorney Marisa Balch of McCormick, Barstow, Sheppard, Wayte & Carruth LLP appeared on behalf of South Fork Union and argued in support of the Motion. Attorney Barry Rosenberg appeared on behalf of Plaintiffs' and argued opposition to the Motion, on behalf of Attorney Donnie R. Cox.
The Court has read the papers submitted in support and in opposition of the motion, and considered the arguments of counsel and the authorities cited to the court.
The Court has concluded that District Defendants' Motion is appropriate, and should be granted on certain grounds. Therefore:
IT IS HEREBY ORDERED THAT:
1) Count three of the seventh cause of action alleged in the THIRD AMENDED COMPLAINT under 42 U.S.C. §1983 is DISMISSED, without prejudice;
2) Count one of the eleventh cause of action alleged in the THIRD AMENDED under California Civil code Section 52.1 is DISMISSED, WITH PREJUDICE; and
3) To the extent Plaintiffs persist with their First Amendment claim in the Third Amended Complaint, it is dismissed with prejudice for the reasons stated in the Memorandum Decision dismissing the Second Amended Complaint. 4) Plaintiff shall file an amended complaint within ten (10) days of the filing of this order. Defendant shall file a response within fifteen (15) days of receipt of the amended complaint.
IT IS SO ORDERED.
© 1992-2011 VersusLaw Inc.