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Garr Ooley, et al v. Citrus Heights Police Department

May 29, 2012


This matter is before the Court on Defendants Michelle R. Kirwan, Trevor Kirwan, Leland Murray, Jr., Mary Murray, Stephanie Murray, Anthony Larish, Alan Spinner, and Jonathan Hanly's (collectively the "Neighbor Defendants") Motion to Dismiss (Doc. #9).*fn1 Plaintiffs Garr Ooley and Janis Starkey (collectively "Plaintiffs") oppose the motion (Doc. #32).


This action arises out of Plaintiffs' allegations that the Neighbor Defendants, acting to aid and abet officers associated 2 with the Citrus Heights Police Department (the "CHPD Defendants"), 3 engaged in a campaign to violate Plaintiffs' civil rights. 4

Plaintiffs allege in a 98 page complaint and 50 pages of exhibits 5 that the Neighbor Defendants engaged in a campaign of harassment 6 consisting of a series of minor incidents and confrontations 7 including newspaper theft, cursing, angry verbal exchanges, 8 flipping "the bird," applications for restraining orders, chest 9 bumping, false accusations of assault, poisoning of decorative vegetation, irregular postal service, lies, and general denigration. See Compl. (Doc. #2) ¶¶ 49-53. Plaintiff Ooley was eventually convicted of vandalizing Defendant Leland Murray's truck, but he was acquitted of assault and battery charges arising from the same incident. Plaintiffs allege that the majority of these incidents were recorded on Plaintiffs' home surveillance system.

Plaintiffs allege that the Neighbor Defendants' campaign of harassment was precipitated by neighborhood meetings organized by CHPD officers. At these meetings, Plaintiffs allege that the officers defamed Plaintiff Ooley by telling his neighbors that he was a sexual pervert and pedophile. Plaintiffs allege that the Neighbor Defendants became antagonistic toward them following these meetings.

The parties dispute the Court's subject matter jurisdiction. Plaintiff brings one federal cause of action, violation of 42 U.S.C. § 1983, and several state law claims against the Neighbor Defendants. The Neighbor Defendants seek dismissal of the federal cause of action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and the remaining state law claims for 2 lack of federal subject matter jurisdiction under Federal Rule of 3 Civil Procedure 12(b)(1) . 4 5


A. Legal Standard for Motion to Dismiss 7

1. Failure to State a Claim

A party may move to dismiss an action for failure to state a 9 claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rules of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 2 316 F.3d 1048, 1052 (9th Cir. 2003). 3

2. Lack of Subject Matter Jurisdiction

A court may dismiss an action under Rule 12(b)(1) "when the 5 District Court lacks subject matter jurisdiction over the claim." 6 Fed. R. Civ. P. 12(b)(1). A motion made pursuant to Rule 12(b)(1) 7 "may either attack the sufficiency of the pleadings to establish 8 federal jurisdiction, or allege an actual lack of jurisdiction 9 which exists despite the formal sufficiency of the complaint." Meaunrit v. ConAgra Foods Inc., 2010 WL 2867393, *3 (N.D. Cal. July 20, 2010) (internal citations omitted). A plaintiff bears the burden of proving jurisdiction "with the manner and degree of evidence required at the successive stages of the litigation." Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894, 899 (9th Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 ...

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