MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S AMENDED COMPLAINT MOTION TO DISMISS PLAINTIFF'S FIRST Document # 23
This is a civil rights action for damages by pro se plaintiff James M. Lanier ("Plaintiff") against defendant Fresno Unified School District ("Fresno Unified"). This action arises out of Plaintiff's repeated attempts to obtain a contract from Fresno Unified for sports officiating that Plaintiff alleges were unsuccessful because of racially discriminatory practices. On June 10, 2011, the court filed a memorandum opinion and order dismissing the original complaint with leave to amend (hereinafter, the "June 10 Order"). The now operative First Amended Complaint ("FAC") was filed on July 1, 2011 and names Fresno Unified as the sole defendant in this action. In the instant motion, Fresno Unified seeks to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
This is the third action by Plaintiff in this court that alleges racially discriminatory attitudes and conduct by school officials prevented him from equal access to sports officiating contracts over a period of several years. Plaintiff's FAC alleges a total of eight claims for relief against Fresno Unified. In order of allegation, Plaintiff's FAC alleges claims for discrimination pursuant to: (1) 42 U.S.C. § 1981, (2) 42 U.S.C. § 1983, (3) 42 U.S.C. § 1985, (4) 42 U.S.C. § 1986, (4) 42 U.S.C. § 2000d, (6) California Public Contract Code §§ 100 - 102, (7) California Business and Professions Code § 17200, (8) Negligence under California common law.
In its June 10 Order, the court dismissed Plaintiff's claims against a number of individual defendants because evidence that the individual defendants had been properly served was lacking. The FAC, in addition to narrowing the field of defendant to Fresno Unified, substantially recast a number of Plaintiff's factual allegations. As the court observed with regard to the original complaint, the two-year statute of limitations applicable to civil rights claims generally limited Plaintiff's claims to those that accrued after October 8, 2007. Perhaps in response, Plaintiff's FAC puts more focus on events that are alleged to have occurred after that date and marks the accrual of Plaintiff's civil rights claims in April of 2008. The court has reviewed the facts alleged and finds that the FAC alleges a single instance of conduct that could be described as discriminatory and that occurred after October 8, 2007. That instance of conduct is expressed in a fairly lengthy narrative which is quoted as follows.
l. April 2008: [Plaintiff, dba Sports Officials Association ("SOA")] attended a meeting with Ronald Haroldsen (white) about a business proposal for a joint officiating venture between the newly formed California Sports Officials Association (COSA), SportsTime Officials Association (SOA) and the Central California Soccer Officials Association (CCSOA [owned by Ruby Earl, an African-American woman]). The meeting entailed coming together to form a coalition of officials' associations to present a proposal to [Fresno Unified] and the Clovis Unified School District for the upcoming sports officiating services contracts. [Plaintiff] and Ms. Earl had no idea at the time that this was the brainchild of [Fresno Unified] athletic directors to prevent [Plaintiff] from filing discrimination and civil rights violations claims.
m. May 2008 [Fresno Unified] announces that it is putting the officiating services contract out to bid for all of the districts school sports -- high school, middle and elementary schools. [Fresno Unified] assembled a 10-person panel to vote on the bid proposals. Doug Semmen [Fresno Unified athletic director] informs us -- Ruby Earl, [Plaintiff], Kemron Brooks (all Black) -- that [Fresno Unified] needed for SOA and CCSOA to work with the newly formed CSOA (white contractor) in order to "justify" removing the contract from SJVOA. This is when the distrust and lack of confidence in an Afro American being able to handle the responsibility of the job overtly surfaced. [Plaintiff] and Earl were both more qualified than Ronald Haroldsen of CSOA to perform sports officiating contract work for [Fresno Unified]. n. May 2008: [Plaintiff]/SOA submits a bid proposal for the 2008-2009 for the [Fresno Unified/County Metro Athletic Conference/North Yosemite League] sports "all sports" officiating services contracts for approval. SOA was the lowest responsible bidder for services with the new programs that SOA would be introducing, and it was most qualified of all bidders submitting proposals.
SOA also sent a letter to the [Fresno Unified] purchasing department director Paul Rosecrans inquiring as to the independent contractor status of all officials and whether SOA could utilize the entire pool of officials. Paul Rosencrans (white) informed [Plaintiff] and SOA that they could not utilize the pool of independent contracted officials but were limited to SOA's current roster of officials. The white contractor awarded the bid for that time frame was allowed to utilize the entire pool of officials in both his bid proposal, and in the performance of the contract to the 2008-2009 contract period.
o. June 2008: SOA submits a letter of protest to [Fresno Unified] after discovering that the 10-person panel selected to vote on the bid for the [Fresno Unified] 2008-2008 officiating services contract included 7 of the 10 people who were in attendance at the previous 5 CMAC/NYL Athletic Director's [sic] meetings and had previously voted against SOA receiving the contracts 5 times. Plaintiff also discovered that Ronald Haroldsen/COSA (white contractor) was allowed to use the entire independent contractor officials pool in his bid while [Plaintiff] and SOA were prohibited from using this same pool in submitting a bid proposal. p. June 2008: Additional meetings between SOA, CSOA, and CCSOA representatives regarding bid proposals and further structuring of the newly formed CSOA association took place in June 2008. Again, Doug Semmen (white), [Fresno Unified] athletic director, emphasized that this coalition of companies was the only way [Plaintiff] and SOA would be awarded any contract work (i.e. as a support group to a white contractor). Semmen also indicated that this merging of groups was required by the school districts' (including Fresno Unified's) approval (to help staff the white contractor who had no staff). q. July 1, 2008: [Fresno Unified] awards the 2008-2009 sports officiating services contract to Ron Haroldsen (white contractor) who only had the available services of SOA/[Plaintiff] (black) and CCSOA/Ruby Earl (black) to work for him in proformance of his new [Fresno Unified] contract. [Fresno Unified] exhibited race discrimination against African-Americans in the bidding and awarding of the aforesaid sports officiating services contract. Doc. # 33 at 6-8.
The instant motion to dismiss Plaintiff's FAC was filed on July 18, 2011. Plaintiff's opposition was filed on August 15, 2011, and Fresno Unified's reply was filed on August 22, 2011. Hearing on the motion to dismiss was vacated by order of the court on August 22, 2011, and the matter was taken under submission.
Although Fresno Unified has moved to dismiss each of Plaintiff's claims for relief pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, it is apparent from Fresno Unified's pleadings that their motion to dismiss challenges the jurisdiction of the court with regard to those claims to which Fresno Unified contends it has Eleventh Amendment immunity. Because Fresno Unified's contentions regarding Eleventh Amendment immunity are jurisdictional in nature, the court will construe the motion to dismiss as being pursuant to Rule 12(b)(1) where it is claimed that Eleventh Amendment immunity applies.
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P. 8(a)(1). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F. 2d 884, 891 (3d Cir.1977); Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal.1989), rev'd on other grounds, 963 F. 2d 229 (9th Cir.1992).
A defendant may also attack the existence of subject matter jurisdiction apart from the pleadings. Mortensen, 549 F. 2d at 891. In such a case, the court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F. 2d 199, 201 (9th Cir.1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publishing, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("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 ...