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Vartanian v. Dalrymple

United States District Court, N.D. California

April 28, 2014

GREGORY VARTANIAN, Plaintiff(s),
v.
WILLIAM RICHARD DALRYMPLE, Defendant(s)

ORDER GRANTING MOTIONS TO DISMISS [DOCKET NOS. 9 AND 12], DENYING MOTION TO STRIKE [DOCKET NO. 23] AND DISMISSING CASE WITH LEAVE TO AMEND

DONNA M. RYU, Magistrate Judge.

Before the court are two motions to dismiss, one filed by Defendant William Richard Dalrymple and the other filed by Defendant Brandy Mathers. ["Dalrymple MTD, " Docket No. 9; "Mathers MTD, " Docket No. 12.] Plaintiff Gregory Vartanian is proceeding pro se. Pursuant to Civil L.R. 7-1(b), the court determines that this matter is proper for resolution without oral argument. For the reasons stated below, the motions to dismiss are granted.

I. BACKGROUND

A. Motions to Dismiss and Amended Complaint

Dalrymple filed his motion to dismiss on March 10, 2014. According to this district's local rules, Plaintiff's response was due on March 24, 2014. See N.D. Cal. Civ. L.R. 7-3. Plaintiff did not file a response by that date. On March 31, 2014, this court issue an order to show cause requiring Plaintiff to respond by April 10, 2014 to explain his failure to respond to the Dalrymple MTD and to either (1) submit his opposition to the court or (2) file a statement of non-opposition to the Dalrymple MTD. The court noted that if Plaintiff did not respond by April 10, 2014, the Dalrymple MTD may be granted.

Mathers filed her motion to dismiss on March 19, 2014. Plaintiff's response to the Mathers MTD was due on March 24, 2014, but Plaintiff did not file a response by that date. On April 9, 2014, this court issue an order to show cause requiring Plaintiff to respond by April 18, 2014 to explain his failure to respond to the Mathers MTD and to either (1) submit his opposition to the court or (2) file a statement of non-opposition to the Dalrymple MTD. The court noted that if Plaintiff did not respond by April 18, 2014, the Dalrymple MTD may be granted.

On April 11, 2014, Plaintiff filed an amended complaint. Am. Compl. [Docket No. 18]. On the same day, Plaintiff filed responses to the two orders to show cause, both of which state: "Having filed a First Amended Complaint in this action... renders [sic] the Defendants' Motion to Dismiss... on the original complaint moot." [Docket Nos. 19 and 20.]

B. Factual Allegations

In both the complaint and amended complaint, Plaintiff alleges the following facts: beginning March 28, 2013, Plaintiff entered into an agreement with Mathers for the rental of a property (the "Property") located on 214 Hilton Street in Redwood City, California. Compl. at 2-3; Am. Compl. at 2-3. The agreement was for a month-to-month tenancy beginning on March 28, 2013, with rent set at $700 per month. Compl. at 3; Am. Compl. at 3. The Property was managed by Mathers and owned by Dalrymple. Compl. at 2; Am. Compl. at 2.

Plaintiff alleges that Mathers has forcibly entered Plaintiff's room, searched through his belongings, and "removed Plaintiff's personal property with the intent to deprive Plaintiff of possession." Compl. at 3; Am. Compl. at 3. While Plaintiff does not specify when Mathers entered the Property, Plaintiff alleges that Mathers did so "at least eight (8) times, " beginning "as early as April [2013]." Compl. at 3, 4; Am. Compl. at 3, 4. On December 22, 2013, Plaintiff complained to Defendants of the habitability of the Property. Compl. at 3; Am. Compl. at 3. On January 7, 2014, after 38 days without water on the Property, Plaintiff filed a complaint with the City of Redwood City, which sent an inspector to the Property. Compl. at 3; Am. Compl. at 3. Redwood City determined that there was no water at the Property, "there was cat feces everywhere and other Code violations." Compl. at 3; Am. Compl. at 3. After the inspector contacted Dalrymple regarding the code violations, Dalrymple advised Mathers of Redwood City's report, and Mathers then "in a violent matter [sic] threatened Plaintiff with eviction for reporting violations...." Compl. at 3; Am. Compl. at 3.

Both the complaint and the amended complaint bring nine causes of action against Mathers, Dalrymple, and Doe Defendants 1-20: a violation of 42 U.S.C. § 1983, for Mathers' forcible entry onto the Property; violation of 42 U.S.C. § 1985; and state law claims for breach of warranty, negligent or intentional infliction of emotional distress, nuisance, negligence, unfair business practices, trespass, and retaliatory eviction.

II. LEGAL STANDARD

When reviewing a motion to dismiss for failing to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must "accept as true all of the factual allegations contained in the complaint, " Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted), and may dismiss the case "only where there is no cognizable legal theory" or there is an absence of "sufficient factual matter to state a facially plausible claim to relief." Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). A claim has facial plausibility when a 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 (citation omitted). In other words, the facts alleged to demonstrate an "entitle[ment] to relief require[] more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2005) (brackets in original) (quotation marks omitted) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001) ("Conclusory allegations of law... are insufficient to defeat a motion to dismiss." (citation omitted)). "If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3).

Since Twombly, the Supreme Court has reaffirmed that a pro se complaint "must be held to less stringent standards than formal pleadings drafted by lawyers." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.2010) (citing Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam)). While the pleading standard may be higher after Twombly and Iqbal, the courts' "obligation" remains, such that "where the petitioner is pro se, particularly in civil rights cases, " ...


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