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Shelley Von Brincken, John Von Brincken v. Keith Royal

January 10, 2013

SHELLEY VON BRINCKEN, JOHN VON BRINCKEN, PLAINTIFFS,
v.
KEITH ROYAL, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER &FINDINGS AND RECOMMENDATIONS

This action for violation of 42 U.S.C. § 1983, 15U.S.C. § 1692, and related state law tort claims arises in connection with the foreclosure of plaintiffs' property. Before the court is defendants Keith Royal, the Nevada County Sheriff's Department, Keith Grueneberg and Rich Fevinger's (collectively "Defendants") motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. 4. Plaintiff filed an opposition on December 7, 2012 (dkt. 8), and defendants replied on December 28, 2012 (dkt. 9).

Defendants' motion to dismiss came on for hearing on January 9, 2013. Marco Kropf appeared before the undersigned on behalf of defendants. Plaintiffs, who are proceeding pro se, failed to appear before the court. Upon review of the documents in support of and in opposition to the motions, upon hearing the argument of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

BACKGROUND

On October 18, 2012, plaintiffs were served with an eviction notice and writ of possession by Nevada County sheriffs Keith Gruenberg and Rich Fevinger in connection with the foreclosure of plaintiffs' property. See Dkt. 1 at 2. Plaintiffs are challenging the underlying foreclosure in a separate action before this court. See Case no. 2:12-cv-01689. On October 19, 2012, plaintiffs filed the complaint in the instant litigation alleging that their Fourth Amendment and Due Process rights were violated under 42 U.S.C. § 1983 when defendants served them with the notice and writ of possession. See Dkt. 1. The complaint also alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and includes references to fraud, the intentional infliction of emotional distress, and negligence. Id.

DISCUSSION

In considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

To avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.

Defendants' Request for Judicial Notice

Although a court generally is confined to the pleadings on a Rule 12(b)(6) motion, it can also consider facts which may be judicially noticed. Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Consideration of these documents outside the complaint will not convert the motion into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

Here, the court takes judicial notice of Exhibit A (dkt. 5-1) to defendants' motion to dismiss, the writ of possession issued by the Superior Court of California, County of Nevada. The writ is a court order, signed by the clerk of court, whose accuracy cannot reasonably be questioned. See Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds) (allowing judicial notice to be taken of records and reports of administrative bodies).

Section 1983 Claims

To state a claim under section 1983, a plaintiff must allege that: (1) defendant was acting under color of state law at the time the complained of act was committed; and (2) defendant's conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48 (1988). Here, plaintiffs appear to allege violations of their Fifth and Fourth Amendment rights pursuant to 42 U.S.C. § 1983. There is no dispute that the individual officers were acting under color of state law. West, 487 U.S. at 50 ...


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