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Bourke v. City of San Diego

United States District Court, S.D. California

February 18, 2015

KEN BOURKE, and HARLAND LEE KLUTTS, Plaintiffs,
v.
CITY OF SAN DIEGO, ET AL., Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND (ECF No. 4)

CYNTHIA BASHANT, District Judge.

On April 25, 2014, Plaintiffs Ken Bourke and Harland Lee Klutts ("Plaintiffs"), proceeding pro se, commenced this 42 U.S.C. ยง 1983 civil rights action against Defendants City of San Diego ("City"), and City employees Michael Richmond, Robert Cervantes, Peter Kann. Defendants now move to dismiss Plaintiffs' complaint pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. In the alternative, Defendants move for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure.

The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set forth below, the Court GRANTS WITH LEAVE TO AMEND Defendants' motion to dismiss pursuant to Rule 41(b), and DENIES AS MOOT Defendants' motion for a more definite statement (ECF No. 4).

I. BACKGROUND

Plaintiff Ken Bourke ("Bourke"), a realtor, is the owner of a historic home located at 1455 F Street, San Diego, California 92101. (ECF No. 1 ("Compl.") at pp. 2, 4; see also ECF No. 15 ("Opp.") at Exs. R1 & R2.) He has "used and occupied" the property for thirty-five years. ( Id. at p. 17.) The property is a duplex. ( Id. at p. 4.) The main address is 1455 F Street and the other half of the duplex is designated as 1453 F Street. ( Id. )

Plaintiff Harland Lee Klutts ("Klutts"), a Coast Guard veteran, resides at 1453 F Street, Unit B. ( Id. at p. 5.) The VA and the San Diego Housing Commission leases the rental unit at 1453 F St, Unit B, and placed Klutts in the property. ( Id. at pp. 5, 23, 25.) Bourke uses, and has been authorized to use, 1455 F Street for his real estate brokerage business. ( Id. at p. 22.)

The City owns the vacant property adjacent to the historic property, located at 1451 F Street. ( Id. at pp. 8-9.) The vacant property burned down in 2001, causing damage to the historic property. ( Id. at p. 10.)

On September 19, 2013 and March 24, 2014, the City's Code Enforcement/Development Services employees issued Notices to Vacate the historic property. ( Id. at p. 6.) Defendant Michael Richmond, a Code Inspector, issued the September 19, 2013 Notice to Vacate, accusing "Bourke of intensifying use of his prized Historic property." ( Id. at p. 23.)

Defendant Peter Kann, a Land Use Investigator, and Defendant Robert Cervantes, a Building Inspector, issued the March 24, 2014 Notice to Vacate. ( Id. at pp. 17-18, 23.) Defendant Cervantes deemed the exposed wiring in the historic property to be a "hazard." ( Id at pp. 19-20.) The March 2014 Notice to Vacate called the building "substandard" and a "public nuisance." ( Id. at pp. 9, 24.) The Notice further stated:

Pursuant to Health and Safety Code 17980(b)(1) the Code Enforcement Section is hereby notifying you that all tenants or occupants of the residential rental units addressed at 1453 F St. Unit B must be vacated by May 27, 2014. The rental unit at 1453 F St. Unit A and the basement must remain vacant.

( Id. at pp. 23.)

II. STATEMENT OF LAW

A. Federal Rule of Civil Procedure 41(b)

Rule 41(b) provides, in relevant part: "If the plaintiff fails... to comply with these rules..., a defendant may move to dismiss the action or any claim against it." Fed.R.Civ.P. 41(b). A dismissal under Rule 41(b) "operates as an adjudication on the merits" unless the dismissal order states otherwise. Id. "Dismissal with prejudice of a complaint under Rule 41(b) is a harsh remedy, " therefore "[t]he district judge should first consider less drastic alternatives." McHenry v. Renne, 8 ...


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