United States District Court, N.D. California, San Jose Division
AMENDED ORDER GRANTING-IN-PART AND DENYING-IN-PART FELD ENTERTAINMENT INC., MIKE STUART, AND DAVID BAILEY'S MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT
LUCY H. KOH, District Judge.
On August 12, 2013, Defendants Feld Entertainment Inc., Mike Stuart ("Stuart"), and David Bailey ("Bailey") (collectively, "Defendants") moved to dismiss the Second Amended Consolidated Complaint ("SAC") brought by Plaintiffs Shannon Campbell ("Campbell") and Mark Ennis ("Ennis") (collectively, "Plaintiffs"). ECF No. 94. On August 30, 2013, Plaintiffs filed an opposition to Defendants' motion. ECF No. 107. On September 6, 2013, Defendants filed their reply. ECF No. 109.
On September 9, 2013, Plaintiff Shannon Campbell moved to supplement the SAC with new factual allegations regarding events arising in August 2013. ECF No. 110. On September 12, 2013, the Court invited the parties to meet and confer regarding Campbell's motion to supplement and to attempt to reach a stipulation regarding the amendment. ECF No. 114. Pursuant to the Court's order, the parties filed a joint status report on September 13, 2013. ECF No. 115. The parties notified the Court that although the parties had reached agreements regarding Campbell's amendments, those agreements were contingent on the Court's resolution of Defendants' motion to dismiss. Id. Plaintiffs also agreed to dismiss Defendants James Dennis and Matthew Gillett. Id.
Based on the submissions of the parties and the record in this case, the Court GRANTS-IN-PART and DENIES-IN-PART Defendants' motion to dismiss.
The Court draws the following facts from Plaintiffs' Second Amended Consolidated Complaint, which the Court accepts as true for the purposes of determining Defendants' Motion to dismiss. ECF No. 73 (SAC).
Plaintiffs are members of Humanity Through Education ("HTE"), an animal rights activism group that protests the treatment of animals at circuses like the ones Defendants operate. SAC ¶ 16. At the circus fora, the members of HTE, including Plaintiffs, hold signs and banners and offer informational leaflets about the condition and treatment of animals, such as Asian elephants, that perform in the circus. SAC ¶ 16. HTE members also videotape the treatment of the animals with the purpose of educating the public about that treatment. SAC ¶ 16. Campbell has been leafleting patrons of the circus for six years and videotaping its treatment of animals for five years. SAC ¶ 20. Ennis has been engaged in protest activities for fourteen years. SAC ¶ 21.
Defendants' circus generally comes to the San Francisco Bay Area every August and September, and they typically perform one evening show per day during the week and two or three shows each weekend day. SAC ¶ 24. Two or three days before the first performance, Defendants bring the animals via railroad to the city in which they are performing and then walk the animals from the railroad to the forum (the "animal walk"). SAC ¶ 25. Defendants reverse the process after the last performance. SAC ¶ 25. In between, the animals are kept in a compound that often is set up in the parking lot of the arena in which the circus is appearing. SAC ¶ 26. Plaintiffs and other members of HTE videotape the animals during the walks to and from the railroad and while the animals remain in the compound. SAC ¶ 27.
Plaintiffs allege that Defendants have a "policy and practice... to intentionally interfere with Plaintiffs' free speech rights for the purpose of chilling [P]laintiffs in the exercise of their constitutionally protected rights." SAC ¶ 30. Plaintiffs claim that Defendants and their employees were motivated by Plaintiffs' political beliefs and the intent to prevent them from exercising their speech rights. SAC ¶¶ 76, 77.
Plaintiffs assert that for the past several years, Defendants' employees have harassed them and interfered with their ability to videotape the animals. SAC ¶ 28. Defendants' employees engage in physical assaults and attempts to block Plaintiffs' cameras while Plaintiffs attempt to videotape the animals. SAC ¶ 28. Defendants' employees' conduct takes three general forms: (1) using a rope during the animal walks to harass Plaintiffs and interfere with Plaintiffs' videotaping; (2) shining laser pointers and strobe lights into Plaintiffs' cameras; and (3) physical and verbal assaults on Plaintiffs while Plaintiffs are videotaping. SAC ¶¶ 31, 32, 33. Plaintiffs point to specific incidents of each of these types of conduct. For the sake of clarity, the Court describes each type of conduct and the incidents Plaintiffs allege in turn.
A. Use of the Rope
Beginning in 2006 "and to the present" Defendants' employees hold a long rope alongside the animals as the animals are being walked from the railroad to the forum. SAC ¶ 33. According to Plaintiffs, Defendants' employees use the rope to interfere with their protests and their videotaping of the animal walk by wrapping the rope around Plaintiffs, pushing the rope into Plaintiffs as they walk on the sidewalk, and hooking the rope under Plaintiffs' monopods for their video cameras. SAC ¶ 33. Plaintiffs assert that as a result they must redirect their attention from their protest and videotaping activities to "monitoring the actions of the employees holding the rope" and "repeatedly telling the Circus employees to stop harassing them with the rope." SAC ¶ 40. Campbell claims that she was injured by rope burn on her hands when she tried to move the rope away from her body and the employees pulled the rope tighter. SAC ¶ 41. Plaintiffs also claim that during the animal walks, Defendants violate the restrictions imposed by the municipal permits Defendants obtain to walk the animals in public streets. SAC ¶ 38.
Plaintiffs describe several specific incidents involving Defendants' employees' use of the ropes against them:
In September 2007, in Stockton, California, Defendants' employees used the rope on the animal walk from the arena to the train station "to interfere with Plaintiff and other activists by pushing the rope against the activists and wrapping the rope around" Plaintiffs. SAC ¶ 43.
In August 2009, in Oakland, California, "Ringling rope holders wrapped the rope around both plaintiffs... and pulled hard." SAC ¶ 43.
In August 2011, Defendants' employees under the supervision of Stuart "used a large rope on the walk from the train to the arena to interfere with [Ennis], by pushing the rope against him and wrapping the large rope around him as he videotaped the treatment of the animals while standing in a publicly owned parking lot." SAC ¶ 43.
In August 2011, in Daly City, California, Bailey "failed to prevent his employees from using the rope to block off the public sidewalk, thereby impeding [Ennis'] use of the walkway as he videotaped the treatment of the animals" during an animal walk. SAC ¶ 43.
In September 2011, in Daly City, California, "Ringling rope holders hooked the rope under [Campbell's] camera mounted monopod in order to interfere with her videotaping of the animals being walked down the street." SAC ¶ 43.
In August 2012, in Oakland, California, as Campbell attempted to videotape the animals, Defendants' employees, including Stuart, used "the ropes and their bodies to attempt to block" Campbell from videotaping. SAC ¶ 52. During the animal walk, Defendants' employees forced Campbell off the paved road, which required Campbell to climb over a barricade, resulting in bruising on her leg that persisted for a month. SAC ¶ 75. Stuart and Bailey were supervising Defendants' employees while these actions were taking place. SAC ¶ 58.
Plaintiffs allege that these incidents reveal "the Circus' acceptance of this conduct as ordinary and not unusual, and within the scope of its employees' work." SAC ¶ 43. As a result of the improper use of the ropes, Plaintiffs have to forego videotaping the treatment of the animals and instead redirect their attention to monitoring Defendants' employees' actions and telling Defendants' employees to stop harassing Plaintiffs. SAC ¶¶ 71-72.
B. Laser Pointers
Beginning in 2007, Defendants' employees and members of the security staff "would shine laser pointers and strobe lights into Plaintiff Campbell's eyes and camera lens." SAC ¶ 31. As a result, Campell had "to forego videotaping the Circus' treatment of the animals and redirect her attention to avoiding the laser pointers from shining directly into her eyes, or indirectly into her eyes through the camera lens, for fear of damaging her eyes." SAC ¶ 31.
Campbell points to one specific incident involving laser pointers. In August 2009, Deniz Bolbol ("Bolbol") and Joseph Cuviello ("Cuviello"), two other members of HTE, obtained a preliminary injunction that allowed Bolbol, Cuviello, "or another individual working with them" access to an area adjacent to the entrance of the Oakland Arena's north tunnel to videotape the animals. SAC ¶ 44. In August 2010, Campbell attempted to videotape from that spot. SAC ¶ 45. A Ringling Bros. employee "shined a laser pointer both into [Campbell's] camera, and directly into her eyes" while she was videotaping. SAC ¶ 45. Defendants James Dennis and Matthew Gillett also shined laser pointers "into the cameras of activists." SAC ¶ 46.
C. Physical and Verbal Assaults
According to Ennis, "[t]he Circus' tactics... include throwing objects at [Ennis'] person and his camera, as well as hitting... his camera, and physically pushing and grabbing him." SAC ¶ 32. Defendants' employees have called Campbell "a terrorist" and "a PETA person." SAC ¶ 42. Defendants' employees have stated that Campbell "only cares about animals, " "wants to scare the kids, " "doesn't have a life, " and "doesn't have a boyfriend." SAC ¶ 42.
Plaintiffs point to specific incidents of physical assaults by Stuart and Defendants' employees:
In July 2012, in Fresno, California, Defendants' employees "threw a plastic bottle, a handful of ice cubes and two wooden sticks" at Ennis and Cuviello while Ennis and Cuviello were on a public sidewalk videotaping the animals. SAC ¶ 47. One of the sticks hit Ennis' camera, and one of the sticks hit Ennis' shoulder. SAC ¶ 47. Stuart and Bailey were supervising the employees at the time. SAC ¶ 47.
On August 7, 2012, in Oakland, California, during the animal walk, Defendants' employees "pushed... their bodies up against" Campbell. SAC ¶ 52. Campbell repeatedly told the employees to stop touching her. SAC ¶ 52. Stuart, who is allegedly approximately six feet three inches tall, weighs approximately 260 pounds, and is twice the weight of Campbell, "personally used his body to push and block [Campbell] as she tried to walk and videotape." SAC ¶ 52.
At the same animal walk, Stuart physically blocked Ennis from entering the Oakland arena's parking lot. SAC ¶ 53. Stuart "walked into and pressed his protruding abdominal area against... Ennis numerous times, pushing [Ennis] away." Id. Stuart "grabbed" and "forcefully moved" Ennis at one point. Id.
On August 18, 2012, in San Jose, California, a circus employee ("Doe 1") "purposely walked into [Ennis] as he stood on a public sidewalk videotaping" the animals. SAC ¶ 59. Ennis recognized Doe 1 as a rope handler during the August 2012 animal walk in Oakland. Id. Doe 1 then entered a secured area that Ennis could not access. Id. Ennis reported the incident to San Jose police. SAC ¶ 60.
As a result of Stuart's and Defendants' employees "offensive touching, " Plaintiffs had to forego videotaping the animals and instead had to redirect their attention to avoiding injury and damage to their property. SAC ¶ 72. As a result of Defendants' employees' throwing objects at Ennis, Ennis had to forego videotaping the animals and instead had to redirect his attention to avoiding injury and damage to his property. SAC ¶ 73. Because of Defendants' employees' actions, Plaintiffs fear for their safety. SAC ¶ 74.
D. Harm to Plaintiffs
Plaintiffs have suffered emotional distress, including severe stress, anxiety, depression, and loss of sleep, and the distress has been cumulative. SAC ¶ 79. Because of the harassment, Campbell has had to keep her camera turned on for extended periods of time "in order to capture and document Defendants assaults." SAC ¶ 73. As a result, Campbell ...