JAY L. SCHNEIDER, et al., Plaintiffs,
COUNTY OF SACRAMENTO, et al., Defendants.
KIMBERLY J. MUELLER, District Judge.
Defendant Bieber's motion to dismiss the complaint is pending before the court. The court submitted the motion without argument and now GRANTS the motion, giving plaintiff leave to file a amended complaint.
I. BACKGROUND AND ALLEGATIONS OF THE COMPLAINT
On September 27, 2012, plaintiffs Jay Schneider, Susan Schneider, Jake Schneider, Leland A. Schneider, Katherine Schneider, Leland H. Schneider, and Jared Schneider (collectively, "plaintiffs" or "Schneiders") filed a complaint raising two civil rights claims against the County of Sacramento, Roger Dickinson, Robert Sherry, Jeff Gamel, Cindy Storelli, Leighann Moffitt, Tammy Derby, Carl Simpson, and David Bieber. Complaint, ECF No. 1. Plaintiffs allege that they own the Schneider Ranch and have continuously conducted mining operations as the Schneider Historic Mine ("Mine") since the mid-1930s, but that the defendants have used their official positions to shut down the Mine at the behest of plaintiffs' competitors. ECF No. 1 ¶ 3-5. They allege that defendants' actions violated the due process and equal protection clauses of the Fourteenth Amendment, the Takings/Due Process Clause of the Fifth Amendment, and substantive due process.
On May 20, 2013, defendants County of Sacramento, Derby, Dickinson, Moffitt, Sherry, Simpson, and Storelli answered the complaint. ECF Nos. 28-35.
On June 5, 2013, defendant Bieber filed a motion to dismiss, arguing that the claims against him are barred by the Noerr-Pennington doctrine, that he did not act under color of state law and that the complaint did not allege his personal participation in constitutional violations. ECF No. 37.
On June 26, 2012, plaintiffs filed a first amended complaint and on June 28, 2013, filed their opposition to the motion to dismiss. ECF Nos. 39, 40. On July 11, 2013, the court struck the First Amended Complaint for plaintiffs' failure to seek leave to file it or secure a stipulation from the parties.
The following allegations are taken from the complaint: Plaintiffs own, and Joseph Hardesty operates, the Mine which is located in Sacramento County. ECF No. 1 ¶¶ 10-16, 27. Plaintiffs have a vested right to mine their property. ECF No. 1 ¶¶ 42, 45, 50. In April 2008, an agent of plaintiffs' competitor, Teichert Aggregates, told plaintiffs and Hardesty that Teichert was going to put them out of business. ECF No. 1 ¶ 61. After Teichert representatives contacted government officials, the defendants, and other government employees not named as defendants, undertook inspections and evaluations of the Mine operations in an attempt to find environmental, zoning, and mining violations. ECF No. 1 ¶¶ 62-72, 79. The Sacramento County Board of Supervisors' resolution of plaintiffs' appeal from a finding of zoning violations essentially shut down the Mine. ECF No. 1 ¶¶ 107-108.
In November 2009, the County entered into a contract with Geocon Consultants "to build a case against the Schneider Historic Mine" and to provide litigation assistance with respect to pit capture, slope stability, adequacy of overburden and topsoil, and the adequacy of the Financial Assurance Cost Estimate (FACE). ECF No. 1 ¶¶ 117-118. The contract required Geocon and defendant Bieber, its employee, to keep its services and work product confidential and subject to the attorney-client privilege. ECF No. 1 ¶ 117. Under a revised contract, Bieber assisted the County in inspecting the Mine and issued a nine-page report, recommending that plaintiffs should increase the financial assurance deposit because of certain problems he discovered at the Mine. ECF No. 1 ¶ 121. Thereafter the County Code Enforcement office sent a notice directing plaintiffs to comply with the Bieber determination. ECF No. 1 ¶ 122.
Plaintiffs allege that the defendants, including defendant Bieber, acted maliciously, willfully, knowingly and in bad faith, with an intent to drive plaintiffs out of business. ECF No. 1 ¶¶ 191, 197, 202.
II. STANDARDS FOR A MOTION TO DISMISS
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief, " FED. R. CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter... to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "labels and conclusions' or a formulaic recitation of the elements of a cause of action....'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court "must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule does not apply to "a legal conclusion couched as a factual allegation, '" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice, " or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A court's consideration of documents attached to a complaint or ...