The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Before the Court is Defendants' Motion to Dismiss Plaintiffs' Second Corrected Second Amended Complaint. (ECF No. 78.) For the reasons that follow, Defendants' Motion to Dismiss is GRANTED.
On October 14, 2011, Plaintiffs Thomas Ludavico, Sr., Thomas Ludavico, Jr., and Ashley Ludavico filed their Second Corrected Second Amended Complaint ("SCSAC") against Defendants Sacramento County, Sacramento County Sheriff's Department, Sheriff John McGinness, Sergeants Greg Hanks and Chris Mora, and Deputies Adrian Zuniga, Daniel Zuniga, Dexter Powe, Michael Heller, Brett Schannep and Chris Weightman. (ECF 68.) The one paragraph of the SCSAC that constitutes a statement of facts alleges:
On or about May 14, 2007, the above named defendants, and each of them, while in performance of their duties to investigate and to determine whether Plaintiff, Thomas Ludavico, Sr. presented a danger to himself and/or others, brutally used excessive and reckless force by striking and beating said Plaintiff's body and head with their fists, feet, and other objects, and electrifying and shocking the person and body of said Plaintiff using a Taser weapon, all such actions occurring after said Plaintiff was not resisting. These acts by the individual defendants are detailed in the defendants' own words in the Sacramento County Sheriff's Department Crime Report written by the individual defendants, a true and correct copy of said report is attached hereto as exhibit "A" and incorporated herein by references. All actions occurred in the presence of said Plaintiffs son and daughter, Plaintiffs Thomas Ludavico, Jr. and Ashley Ludavico.
(ECF No. 68 at 5, ¶ 21.) The Attached Exhibit "A" is a copy of a Government Tort Claim. (ECF No. 68, Ex. A.) Plaintiffs presumably are referring to Exhibit "B," which is fifty-two pages of what appears to be the Sheriff's Department file on Ludavico, Sr., and which contains various documents -- including arrest reports, interview notes, property reports, statements given by various officers, and handwritten notes apparently written by Ludavico, Sr. (ECF No. 68, Ex. B.)
Plaintiffs' SCSAC states seven causes of action; the first six are brought solely by Ludavico, Sr., and are brought against all Defendants. (ECF No. 68 at 5-11.) The First Cause of Action is a 42 U.S.C. § 1983 claim alleging excessive force. (Id. at 5-6.) Plaintiff's Second Cause of Action is another § 1983 excessive force claim, making the same allegations but adding deliberate indifference and denial of medical care claims that appear to be related to his confinement in the Sacramento County Jail. (Id. at 7.) The Third Cause of Action alleges negligent hiring and training, supervision, and retention in violation of § 1983 and the Fourth Amendment. (Id. at 8.) The Fourth, Fifth and Sixth Causes of Action are state law claims for negligence, assault and battery, and negligent and intentional infliction of emotional distress. (Id. at 9-11.) The Seventh Cause of Action, brought only by Ludavico, Jr., and Ashley Ludavico, is a negligent and intentional infliction of emotional distress claim brought against Defendants McGinness, Sacramento County and the Sheriff's Department. (Id. at 11-12.)
On October 14, 2011, Defendants filed their Motion to Dismiss ("MTD"). (ECF No. 78.) Defendants' MTD contends that Plaintiffs' SCSAC is deficient both on the basis of the sufficiency of Plaintiffs' factual allegations, as well as on the sufficiency of Plaintiffs' legal contentions and should be dismissed without leave to amend.
Plaintiffs' Opposition, if any, was due on or before November 17, 2011. However, Plaintiffs did not file their Opposition until November 28, 2011, the day before the scheduled hearing on the MTD. (ECF No. 81.)*fn1 Plaintiffs had not sought leave for an extension with the Court. Notably, Plaintiffs' counsel has repeatedly failed to file briefs in a timely manner. See: (1) (ECF Nos. 11 and 12) (regarding Plaintiffs' failure to file Opposition to an earlier motion to dismiss); (2) (ECF No. 40) (Order to Show Cause ("OSC") why Plaintiffs' counsel should not be sanctioned for failing to file an opposition or non-opposition to Defendants' Motion for Sanctions (ECF No. 37)); (3) (ECF No. 48) (OSC why Plaintiffs' counsel should not be sanctioned for failing to timely file plaintiffs' Second Amended Complaint); and (ECF No. 51) (Order for sanctions for failing to timely file plaintiffs' Second Amended Complaint after Defendants counsel failed to respond to the Court's OSC and OSC why counsel should not be sanctioned for failing to respond (ECF No. 48)).
In their Reply, Defendants contend that the Court should not consider Plaintiffs' Opposition brief because it was untimely filed and should grant their MTD without leave to amend. (ECF No. 81 at 2.)
LEGAL STANDARD UNDER FED. R. CIV. P. 12(B)(6)*fn2
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant a fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Each allegation must be simple, concise, and direct." Rule 8(d)(1) (emphasis added).
A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. Twombly, 550 U.S. at 555. However, "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." Id. (Internal citations omitted.) A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
Furthermore, "Rule 8(a)(2) . . . requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations omitted). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). "Without some factual allegation . . . , it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Twombly, 550 U.S. at 556 n.3 (citation omitted). A pleading must contain "only enough facts to state a claim to ...