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Cuviello v. Feld Entertainment, Inc.

United States District Court, N.D. California, San Jose Division

April 7, 2014

JOSEPH CUVIELLO, Plaintiff,
v.
FELD ENTERTAINMENT, INC., et al., Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

LUCY H. KOH, District Judge.

Defendant Feld Entertainment, Inc. ("Feld") moves to dismiss six of the eight causes of action in Plaintiff Joseph Cuviello's ("Plaintiff") First Amended Complaint ("FAC") pursuant to Federal Rules of Civil Procedure ("Rules") 12(b)(1) and (6). ECF No. 13 ("Motion"). Specifically, Feld moves to dismiss the following causes of action: (1) violation of Article I, Section 2; (2) assault and battery; (3) negligent supervision; (4) violation of California Penal Code Section 632(a) (eavesdropping); (5) violation of City of Oakland Ordinances pursuant to California Government Code Section 36900; and (6) injunction. See Motion. The Court held a hearing on this motion on March 20, 2014. Having considered the parties' arguments, the relevant law, and the record in this case, the Court hereby GRANTS IN PART AND DENIES IN PART Feld's Motion.

I. BACKGROUND

A. Factual Allegations[1]

Plaintiff is a member of Humanity Through Education ("HTE"), a San Francisco Bay Area grassroots group dedicated to the humane treatment of animals and educating the public about the abuse and mistreatment of animals in circuses. FAC ¶ 12. Plaintiff holds signs and banners and offers to the public informational leaflets about the condition and treatment of animals kept by circuses, such as Ringling Bros. and Barnum & Bailey Circus ("Circus"). Id. Feld owns and produces Circus. FAC ¶ 7. Plaintiff also videotapes such treatment of animals used by circuses to educate the public, and provide news media information about the abuse and mistreatment of animals by circuses. FAC ¶ 12. Plaintiff has been organizing demonstrations against the circuses, leafleting the circuses' patrons since 1988, and videotaping the circuses' treatment of animals since 1989. FAC ¶ 18. Plaintiff, along with other HTE members, has videotaped the treatment of animals by Circus in numerous California cities and other cities across the country. FAC ¶¶ 19 and 20.

Circus performs annually in the San Francisco Bay Area in August and September. FAC ¶ 22. Two or three days before the first performance, Circus's employees bring the animals via railroad to the city in which they are performing and then unload the animals from the train and walk the animals down the public streets to the arenas where they perform (the "animal walk"). FAC ¶ 23. After the last scheduled performance at the arenas, Circus's employees walk the animals back to the train. Id. In between performances, Circus keeps the animals in a compound when the animals are not performing ("animal compound"). FAC ¶ 24. Every year, Plaintiff offers informational leaflets to patrons of every Circus performance in the Bay Area. FAC ¶ 25. Plaintiff also videotapes (1) the treatment and living conditions of animals used by Circus before, during, and after shows and (2) the treatment and living conditions of the animals while on the train, being loaded and unloaded from the train and being walked to and from the arenas. Id.

Plaintiff alleges that Circus has a "policy and practice... to intentionally interfere with Plaintiff's free speech rights for the purpose of interfering with and chilling Plaintiff in the exercise of his constitutionally-protected rights." FAC ¶ 30. Plaintiff alleges that for the past several years, Circus's employees engage in physical assaults and attempts to block Plaintiff's cameras while Plaintiff attempts to videotape the animals. FAC ¶ 27.

B. Procedural History

On July 8, 2013, Plaintiff, appearing pro se, filed his original Complaint asserting eight causes of action: (1) violation of Article I, Section 2 of the California Constitution; (2) assault and battery; (3) violation of California Civil Code 51.7 (right to be free from violence against property or person); (4) violation of California Civil Code 52.1 (interference with rights); (5) negligent supervision; (6) California Penal Code Section 632(a) (eavesdropping); (7) violation of Oakland City Ordinances pursuant to California Government Code Section 36900; and (8) injunction. ECF No. 1. On October 1, 2013, prior to any defendant filing a response to Plaintiff's original Complaint, Plaintiff filed his First Amended Complaint ("FAC"), which asserted the same eight causes of action as his original Complaint. ECF No. 9.

On October 31, 2013, Feld filed a Motion to Dismiss the FAC. ECF No. 13 ("Mot."). Feld moves to dismiss only six of the eight causes of action asserted in the FAC: (1) violation of Article I, Section 2 of the California Constitution; (2) assault and battery; (3) negligent supervision; (4) California Penal Code Section 632(a) (eavesdropping); (5) violation of Oakland City Ordinances pursuant to California Government Code Section 36900; and (6) injunction. See id. On November 14, 2013, Plaintiff filed an opposition and a supporting Request for Judicial Notice. ECF Nos. 16 and 16-1.[2] On November 21, 2013, Feld filed a reply. ECF No. 17.

II. LEGAL STANDARDS

A. Rule 12(b)(1)

A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). A motion to dismiss for lack of subject matter jurisdiction will be granted if the complaint on its face fails to allege facts sufficient to establish subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). In considering a Rule 12(b)(1) motion, the Court "is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). At the motion to dismiss stage, the plaintiff bears the burden of establishing the court's jurisdiction through allegations of "specific facts plausibly explaining" why the standing requirements are met. Barnum Timber Co. v. United States Envtl. Prot. Agency, 633 F.3d 894, 899 (9th Cir. 2011). If the plaintiff lacks standing under Article III of the U.S. Constitution, then the court lacks subject matter jurisdiction, and the case must be dismissed. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998).

B. Rule 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Supreme Court has held that Rule 8(a) requires a plaintiff to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Moreover, pro se pleadings are to be construed liberally. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[I]n general, courts must construe pro se pleadings liberally.").

However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and the "[C]ourt may look beyond the plaintiff's complaint to matters of public record" without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor is the court required to "assume the truth of legal conclusions merely because they are cast in the form of factual allegations.'" Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678. Furthermore, "a ...


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