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Fernando Fernandez and Maria Fernandez v. United States of America

January 23, 2012

FERNANDO FERNANDEZ AND MARIA FERNANDEZ PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [Doc. 33]

Presently before the Court is Defendant's motion to dismiss Plaintiffs' First Amended Complaint. (Doc. No. 33.) The motion is not opposed. For the following reasons, the motion is GRANTED with leave to amend.

I.

BACKGROUND

This action arises out of several alleged instances in which Mr. and Mrs. Fernandez ("Plaintiffs") allege that they suffered emotional distress after agents of the Customs and Border Protection ("CBP") harassed their son, JRGF. (First Amended Complaint ¶¶ 14-47 ("FAC")). Plaintiffs claim that JRGF's first encounter with the CBP occurred in July or August 2008, when an agent observed JRGF and another teenager on a bicycle, and suspected them of guiding illegal aliens. (FAC ¶¶ 14-16.) The CBP agent followed JRGF for a few blocks before Mr. Fernandez arrived and confronted the agent. (FAC ¶16.) Mr. Fernandez refused to show his identification to the CBP agent. (FAC ¶ 16.) The agent departed promptly after Mrs. Fernandez arrived. (FAC ¶ 16.) JRGF's second encounter with the CBP occurred on December 11, 2008, when another CBP agent observed JRGF on a bicycle and followed him for a few blocks, suspecting him of being an illegal alien and helping to smuggle undocumented immigrants. (FAC ¶ 22.) When JRGF arrived at his house, the CBP agent instructed JRGF to sit on the grass and present his identification. (FAC ¶ 22.) Another CBP agent arrived to assist, and both agents questioned JRGF about his immigration status. (FAC ¶ 22.) Plaintiffs also claim that the agents asked to see Mrs. Fernandez's identification. (FAC ¶ 23.) Mrs. Fernandez and JRGF continued to refuse to show the agents any identification, however, and the CBP agents left after bouts of yelling ensued. (FAC ¶¶ 24-25.)

The third alleged incident occurred on January 30, 2009, when a CBP agent told JRGF and JRGF's friend to get off of their bicycles. (FAC ¶ 28.) Plaintiffs claim that the agent proceeded to threaten JRGF with pepper spray, remove his school identification card, and beat JRGF on the head with a flashlight. (FAC ¶¶ 28-29.) JRGF then called Mr. Fernandez, who called to report the incident to the police department. (FAC ¶ 30.) Plaintiffs were not present when this alleged incident occurred and only learned of the incident when JRGF later called Mr. Fernandez. (FAC ¶ 30.) About two days later, two CBP supervisors went to the Plaintiffs' home. (FAC ¶ 33.) Mr. Fernandez explained the reasons why he thought the CBP agents were harassing his son. (FAC ¶ 33.) Mr. Fernandez became upset when the agents stated that they would continue to stop JRGF if they believed they had reason to question him. (FAC ¶ 33.) Later that afternoon, Mr. Fernandez became upset again when CBP agents questioned JRGF in downtown Calexico, demanded to see his identification, and performed a search for weapons. (FAC ¶ 34.)

Plaintiffs also allege that they suffered emotional distress when they later learned that CBP agents forcibly dragged JRGF out of a restaurant and questioned him in August 2009. (FAC ¶¶ 35-39.) Later that month, two CBP agents again observed JRGF standing on a corner in downtown Calexico. (FAC at ¶¶ 40-42.) The CBP agents stopped JRGF, asked for identification, and conducted a pat down search for weapons. (FAC ¶ 40.) JRGF was about to be released when Mr. Fernandez arrived to pick up his son. (FAC ¶ 41.) The CBP agents then mounted their bicycles and departed. (FAC ¶ 42.) As a result of these alleged incidents involving the CBP and Plaintiffs' son, Plaintiffs claim that they are entitled to relief because they now "live in constant fear that CBP agents will again physically injure or harm JRGF and suffer from substantial emotional distress, and physical symptoms associated with emotional distress including becoming angry, discouraged and feeling helpless in their own home and neighborhood." (FAC ¶ 47.)

Plaintiffs filed an administrative claim with the CBP on December 16, 2009, seeking $5,000,000 in compensatory damages. (FAC ¶ 4). CBP denied their claims on May 24, 2010. (FAC ¶ 4.) Plaintiffs then filed this lawsuit on July 2, 2010. (Doc. No. 1). Plaintiffs amended their complaint on October 4, 2010, and the Defendant answered the First Amended Complaint on October 5, 2010. (Doc. Nos. 7 & 8). But on January 4, 2011, Plaintiffs' attorney withdrew from the case. (Doc. No. 17). Thereafter, Judge Moskowitz issued an order to show cause why JRGF's claims should not be dismissed. (Doc. No. 21). Plaintiffs responded to this order on March 7, 2011, but still failed to retain counsel for their son. (Doc. No. 22). On March 10, 2011, Judge Moskowitz renewed his order to show cause. (Doc No. 23). On March 14, 2011, this case was transferred to the calendar of Judge Battaglia. (Doc. No. 24.) After Plaintiffs failed to appear at the hearing on June 30, 2011, and still had not retained a new lawyer, Judge Battaglia dismissed JRGF's claims. (Doc. Nos. 27 & 28).

II.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court may dismiss a complaint as a matter of law for: (1) "lack of cognizable legal theory," or (2) "insufficient facts under a cognizable legal claim." SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint survives a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Notwithstanding this deference, the reviewing court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949--50 (2009). It is also improper for the court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950. The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009) (citations omitted).

III.

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