The opinion of the court was delivered by: John A. HOUSTONUnited States District Judge
ORDER GRANTING IN PART AND DENYING IN PART THIRD PARTY DEFENDANTS CITY OF SAN DIEGO, WILLIAM LANSDOWNE AND DAVID SPITZER'S MOTION TO DISMISS [Doc. No. 26] AND RELATED COUNTER-CLAIM ) AND THIRD PARTY COMPLAINT ))
On June 24, 2011, Jason Ensign, Defendant/Counter-claimant, filed a counterclaim against Cameron Baker and a third party complaint against City of San Diego, San Diego Police Chief William Lansdowne, David Spitzer, Elite Show Services, Inc., Parham HirariMoghaddam, Tyler Wenbourne, Matthew Keasler, Joel Brase, Jason Biggers, Sifakis, and Does 1-100. Third Party Defendant City of San Diego ("the City") removed the action to federal court on September 6, 2011. Ensign filed an amended counterclaim and third party complaint ("FATPC") on December 6, 2011, asserting claims for violation of civil rights under 42 U.S.C. § 1983, Monell, malicious prosecution, assault and battery, false arrest/false imprisonment, intentional infliction of emotional distress, negligence, and negligent employment, supervision and training.
Thereafter, City of San Diego, Lansdowne, and Spitzer ("Movants") filed a motion to dismiss the third party complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). After seeking additional time to do so, Ensign filed an opposition to the motion. Movants filed a reply.
Defendant seeks dismissal of the complaint for failure to state a claim. Rule 12(b)(6) tests the sufficiency of the complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give "detailed factual allegations," he must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, "the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. See Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, the Court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the Court takes judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a court determines that a complaint fails to state a claim, the court should grant leave to amend unless it determines that the pleading could not possibly be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).
Third party defendants seek an order dismissing the action against them with prejudice. They contend the amended third party complaint which asserts nine causes of action appears to assert only the first two, the claim for violation of civil rights under section 1983, and the Monell claim, against the moving parties. However, the Movants address the state causes of action in addition to the first two causes of action in their motion.
I. Request for Judicial Notice
Movants seek judicial notice of documents in support of their motion to dismiss.
Generally, "a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Lee v. Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). "When matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ." Id. (citation omitted). A court, however, may look to facts proper for judicial notice without converting a Rule 12(b)(6) motion to one for summary judgment even though those facts are beyond the complaint. See Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986), abrogated in part on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991).
Federal Rule of Evidence 201 allows a court to take judicial notice of an adjudicative fact "not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." "Adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case." Grason Elec. Co. v. Sacramento Mun. Util. Dist., 571 F. Supp. 1504, 1521 (E.D. Cal. 1983) (citation omitted).
Defendant asks the Court to take judicial notice of two documents, attached as Exhibits 1 and 2 to their request for judicial notice. See Doc. No. 26-2. Exhibit 1 is a court order filed in People of the State of California v. Jason Ensign, Superior Court of California, County of San Diego dated May 9, 2011. Exhibit 2 is a court order containing factual findings filed August 5, 2011, in the same case. In response, Ensign argues the documents may not be used for the truth of the factual findings contained therein. Movants do not respond to this argument.
Here, the Court first notes that, unless Movants intended to request that this Court take judicial notice of the fact that the documents attached as Exhibits 1 and 2 merely exist, it appears Movants misapprehend the concept of judicial notice. Movants' request fails to list the adjudicative facts as to which Movants would like this Court to take judicial notice. Nevertheless, upon review of the motion to dismiss, it is clear Movants seek the Court take judicial notice of the findings of facts set forth in the orders. While a court may take judicial notice of the fact that a case has been filed in another court, "[a]s a general rule, a court may not take judicial notice of proceedings or records in another cause so as to supply, without formal introduction of evidence, facts essential to support a contention in a cause then before it." M/V Am. Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir.1983); see also ...