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Red Eyed Jacks Sports Bar Inc. v. City of San Diego

United States District Court, S.D. California

July 3, 2014

RED EYED JACKS SPORTS BAR INC. d.b.a. CHEETAH'S NIGHTCLUB, Plaintiff,
v.
CITY OF SAN DIEGO and SHELLEY ZIMMERMAN, in her official capacity as Chief of Police Defendants.

ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND [DOC. 3.] AND DISMISSING MOTION FOR PRELIMINARY INJUNCTION AS MOOT [DOC. 7]

M. JAMES LORENZ, District Judge.

Pending before the Court is Defendants' motion to dismiss for failure to state a claim. ( MTD [Doc. 3].) The motion is fully briefed. ( Opp'n [Doc. 5]; Reply [Doc. 6].) The Court found this motion suitable for determination on the papers submitted and without oral argument in accordance with Civil Local Rule 7.1(d.1). ( Order re: Oral Argument [Doc. 9].) For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion with leave to amend. In light of this dismissal, the pending motion for preliminary injunction is DISMISSED AS MOOT as it is based on the current Complaint. ( Mot. Prelim. Inj. [Doc. 7].)

I. BACKGROUND

According to the Complaint, Plaintiff Red Eyed Jacks Sports Bar Inc. d.b.a. Cheetah's Nightclub ("Cheetah's") is a Nevada Corporation "duly qualified to do business in California with the California Secretary of State." ( Compl. [Doc. 1] ¶ 6.) It is "the duly qualified and current holder of the fictitious business name of Cheetah's Nightclub, " a "nude entertainment business' as defined in San Diego Municipal Code section §33.3602 and is licensed by Defendant City of San Diego [("San Diego")] under San Diego Municipal Code section §33.3603." ( Id. ) San Diego is a "municipality of the State of California under Article 11, section 2 of the California Constitution and a person' subject to suit within the meaning of 42 U.S.C. Section 1983." ( Id. ¶ 7.)

On July 14, 2013 and March 6, 2014, the vice unit of San Diego's police department sealed off the entrances and exits of Cheetah's, thereby preventing its customers from leaving. ( Compl. ¶ 14.) Around ten officers entered the nightclub and detained its exotic dancers. ( Id. ) Officers informed the nightclub's management that they were performing inspections pursuant to San Diego Municipal Code § 33.0103(a). ( Id. ¶ 12, 15.) These inspections lasted four hours and two and a half hours on the respective dates mentioned above. ( Id. ¶ 16.) The dancers were not allowed to leave the nightclub and were required to present officers with identification and nude entertainer permits, "as required by the municipal code." ( Id. ¶ 17.) Officers made the dancers stand in two separate lines, subjected them to questioning, and took photographs of their body parts while allegedly making crude remarks. ( Id. ¶ 18.) Those who orally objected to the lineup and inspection were threatened with arrest. ( Id. ¶ 22.)

Cheetah's claims the dancers experienced severe emotional distress and anxiety as a result of these inspections. ( Compl. ¶ 22.) As a result, many of these dancers no longer perform at the nightclub and have either pursued employment at other establishments or moved outside of San Diego. ( Id. ¶ 23.) The departure of experienced dancers has led to a decrease in the quality of nude entertainment offered by Cheetah's, causing its owners to suffer a loss in income. ( Id. ¶ 24.) These inspections have allegedly taken place at several nude entertainment businesses and constitute a "practice, policy, usage, or custom of the City of San Diego and its police agents." ( Id. ¶ 26.) Lieutenant Kevin Mayer of the San Diego Police Department made an announcement on the radio on March 25, 2014 confirming that these inspections are part of a city-wide policy. ( Id. ¶ 28.)

On April 7, 2014, Cheetah's filed the instant Complaint, alleging that ch. 3, art. 3, div. 1 and div. 36 of the San Diego Municipal Code are unconstitutionally vague. ( Compl. ¶¶ 28-29, 33(a), 37(a), 41(a).) Cheetah's claims that the provisions provide "no additional guidelines as to what search and detention provisions are required for First Amendment regulated businesses." ( Id. ¶ 28.) Further, it alleges that the actions of the officers during both inspections violated the First Amendment speech rights of the nightclub, dancers, and customers "as applied to local jurisdictions by the Fourteenth Amendment." ( Id. ) They also cause a "chilling effect on freedom of speech and expression." ( Id. ¶ 37(b).) In addition, these searches and seizures are unconstitutional and do not satisfy the criteria for reasonableness under the Fourth Amendment. ( Id. ¶¶ 30, 41(b).) Finally, both provisions of the San Diego Municipal Code allegedly deprive Cheetah's of the equal protection of the law under the Fourteenth Amendment. ( Id. ¶ 41(d).)

On June 23, 2014, San Diego moved to dismiss the Complaint for failure to state a claim. ( MTD 3.) San Diego argues that Cheetah's "has not provided the City with proper notice of the ordinance' it now challenges as unconstitutional" and "the City is left guessing as to the exact basis for Plaintiff's claim for relief." ( Id. ) San Diego also contends Cheetah's "has failed to allege sufficient facts to support any of its claims for relief." ( Id. at 4.) In addition, San Diego maintainss that: (1) the nightclub lacks standing to assert constitutional violations on behalf of third parties; (2) the facial challenges to San Diego's Municipal Code provisions are time barred; and (3) these provisions are not unconstitutionally vague. ( Id. at 5-7.) Cheetah's opposes, asserting inter alia, that it has adequately specified the provisions in the San Diego Municipal Code which it is challenging. ( Opp'n. 6.) Further, Cheetah's argues that it has standing to assert claims on behalf of third parties, the statute of limitations has not expired, and the provisions are unconstitutionally vague. ( Id. at 7, 9, 11.)

II. LEGAL STANDARD

Rule 12(b)(6) - Motion to Dismiss - Failure to State a Claim

The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and construe them in light most favorable to the nonmoving party. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks omitted). In fact, the court does not need to accept any legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.Ct. 1937, 1949 (2009)

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. Thus, "[t]o 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.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). "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." Id. "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. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the complaint whose authenticity is not questioned by parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id. It may also consider material ...


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