United States District Court, N.D. California
ORDER GRANTING BHA DEFENDANTS' MOTION TO DISMISS; GRANTING IN PART
AND DEFERRING IN PART RULING ON CITY DEFENDANTS' MOTION TO DISMISS; AFFORDING
PARTIES LEAVE TO SUBMIT SUPPLEMENTAL BRIEFING; DENYING PLAINTIFF'S MOTION FOR
LEAVE TO FILE SUR-REPLY; DENYING PLAINTIFF'S REQUEST TO AMEND; VACATING HEARING;
CONTINUING CASE MANAGEMENT CONFERENCE
MAXINE M. CHESNEY, District Judge.
Before the Court are two motions to dismiss plaintiff Rash Ghosh's Second Amended Complaint ("SAC"): (1) Motion to Dismiss, filed February 20, 2015, by the Berkeley Housing Authority and Tia Ingram (collectively, "BHA Defendants"); and (2) Motion to Dismiss, filed February 20, 2015, by the City of Berkeley ("the City"), Mayor Thomas H. Bates ("Mayor Bates"), Zachary Cowan ("Cowan"), Laura McKinney ("McKinney"), Mark Rhoades ("Rhoades"), Joan MacQuarrie ("MacQuarrie"), Matthew LeGrant ("LeGrant") and Patrick Emmons ("Emmons") (collectively, "City Defendants"). Plaintiff Rash B. Ghosh ("Ghosh") has filed Opposition, in which he does not oppose the BHA Defendants' motion, opposes in part the City Defendants' motion, and requests further leave to amend. The City Defendants have filed a reply. Having read and considered the parties' respective filings, the Court deems the motions suitable for decision thereon, VACATES the hearing scheduled for April 3, 2015, and rules as follows.
A. The BHA Defendant's Motion
The BHA Defendants contend Ghosh's claims against them are subject to dismissal, as barred by the applicable statutes of limitations and/or by failure to allege compliance with the California Government Claims Act. In his Opposition, Ghosh states he does not oppose the BHA Defendants' motion to dismiss. (See Pl.'s Opp. at 1:13.)
Accordingly, the BHA Defendants' motion to dismiss will be granted.
B. The City Defendants' Motion
The City Defendants contend Ghosh's claims are subject to dismissal, as barred by the applicable statutes of limitations, the principles of claim/issue preclusion, and/or failure to allege compliance with the California Government Claims Act.
In his opposition, Ghosh states he does not oppose dismissal of his state law claims against any of the City Defendants (see Pl.'s Opp. at 6:21-23), and does not oppose dismissal of all his claims against Mayor Bates and Emmons (see Pl.'s Opp. at 1:14).
Ghosh does, however, oppose dismissal of his federal claim, specifically, Count IV, as alleged against the City, Cowan, McKinney, Rhoades, MacQuarrie and LeGrant. Count IV is brought pursuant to 42 U.S.C. § 1983 and is based on Ghosh's allegation that he "owned two neighboring residential properties in the City" (see SAC ¶ 4), until the City "arranged for the [p]roperties to be placed in receivership" and then "transferred" to a "real estate developer" (see SAC ¶¶ 9.A, 28), all assertedly in deprivation of Ghosh's right to due process under the Fourteenth Amendment (see SAC ¶ 73).
The City Defendants argue such claim is barred by the statute of limitations and by principles of claim or issue preclusion. Prior to addressing either such issue, the Court, for the reasons discussed below, finds it appropriate to afford the parties leave to file supplemental briefing to address a threshold issue, specifically, whether plaintiff has adequately alleged a deprivation of due process. See Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985) (holding, "[i]n order to state a claim under the fourteenth amendment, the complainant must allege facts showing not only that the State has deprived him of a liberty or property interest but also that the State has done so without due process of law") (internal quotation and citation omitted).
Ghosh alleges the asserted deprivation occurred in the course of proceedings in the Superior Court of California (see SAC ¶¶ 39, 67), which proceedings culminated in a court order confirming the sale of Ghosh's properties (see Cowan Decl. Ex. I). It would appear, however, that Ghosh has failed to allege sufficient facts to support his conclusory assertion that the deprivation occurred without due process of law. In particular, Ghosh's allegation that the Superior Court did not find Ghosh's arguments to be persuasive (see SAC ¶ 67) appears insufficient to support the claim, as "[t]he decision of a state court, involving nothing more than the ownership of property, with all parties in interest before it, cannot be regarded by the unsuccessful party as a deprivation of property without due process of law, simply because its effect is to deny his claim to own such property." See Tracy v. Ginzberg, 205 U.S. 170, 178 (1907). To the extent Ghosh alleges he was "out of the country" on one occasion during the state court proceedings and not able to attend a hearing, the nature of which is unidentified (see SAC ¶ 69), such allegation likewise appears insufficient, as the record indicates Ghosh, who brought the state court action (see Cowan Decl. A), was represented by counsel (see id. Ex. J).
Accordingly, as the parties have not addressed the issue of whether Ghosh has sufficiently alleged a deprivation of due process, the Court will afford the parties an opportunity to ...