United States District Court, S.D. California
ORDER: (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS [DOC. 17]; AND (2)
DENYING DEFENDANTS’ MOTION TO STRIKE [DOC. 17]
J. Whelan Judge.
before the Court is Defendants’ motion to dismiss and
to strike portions of the First Amended Complaint
(“FAC”). [Doc. 17.] The Court decides the matter
on the papers submitted and without oral argument pursuant to
Civil Local Rule 7.1(d)(1). For the reasons that follow, the
Court GRANTS IN PART AND DENIES IN PART Defendants’
motion to dismiss and DENIES Defendants’ motion to
Bana Mouwakeh filed this action on October 10, 2015. [Doc.
1.] The FAC alleges that during an October 11, 2013 traffic
stop, she reached her hand out of her car and towards one of
three sheriff’s deputies. (FAC [Doc. 16]
¶¶ 20, 24-25.) The deputies removed Mouwakeh from
the car, took her to the ground, and handcuffed her.
(Id.) She alleges that she suffered severe injuries
and was later arrested. (Id. [Doc. 16] ¶¶
alleges that the deputies retaliated against her for
exercising her First Amendment rights (FAC [Doc. 16]
¶¶ 46-50), and that they, Sheriff Bill Gore, and
their employer the County of San Diego all violated 42 U.S.C.
§ 1983. (FAC [Doc. 16] ¶¶ 30- 45,
Motion to Dismiss
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. See Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995). 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. Balistreri v. Pacifica
Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990).
In ruling on the motion, a court must “accept all
material allegations of fact as true and construe the
complaint in a light most favorable to the non-moving
party.” Vasquez v. L.A. Cnty., 487 F.3d 1246,
1249 (9th Cir. 2007).
complaint must contain “a short plain statement of the
claim showing that the pleader is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2). The Supreme Court has
interpreted this rule to mean that “[f]actual
allegations must be enough to raise a right to relief above
the speculative level[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 545 (2007). The allegations in
the complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
allegations in the complaint are assumed true, but a court is
not required to accept legal conclusions couched as facts,
unwarranted deductions, or unreasonable inferences. See
Papasan v. Allain, 478 U.S. 265, 286 (1986);
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001).
Motion to Strike
Federal Rule of Civil Procedure 12(f), the Court “may
strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” “[T]he function of a 12(f) motion to
strike is to avoid the expenditure of time and money that
must arise from litigating spurious issues by dispensing with
those issues prior to trial[.]” Sidney-Vinstein v.
A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).
“Motions to strike are generally regarded with disfavor
because of the limited importance of pleading in federal
practice, and because they are often used as a delaying
tactic.” California Dep't of Toxic Substances
Control v. Alco Pac., Inc., 217 F.Supp.2d 1028, 1033
(C.D. Cal. 2002). Unless it would prejudice the opposing
party, courts freely grant leave to amend stricken pleadings.
See Wyshak v. City Nat’l Bank, 607 F.2d 824,
826 (9th Cir. 1979); see also Fed.R.Civ.P. 15(a)(2).
Motion to Dismiss