United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
HAYWOOD S. GILLIAM, JR. United States District Judge.
before the Court is Defendants' motion to dismiss
Plaintiff's First Amended Complaint. See Dkt.
No. 29 (“Mot.”). For the following reasons, the
Court GRANTS Defendants' motion to
dismiss without leave to amend.
Emma Nation is a resident of Humboldt County, California.
First Amended Complaint (“FAC”), Dkt. No. 12
¶ 7. On August 10, 2011, Plaintiff began renting an
apartment from Humboldt Bay Housing Development Corporation
(“HBHDC”), which is a private corporation that
receives funding from the U.S. Department of Housing and
Urban Development (“HUD”). Id. ¶
47. According to Plaintiff, HUD mandates that any recipient
of its funds must maintain a zero-tolerance policy and evict
or deny servicing any tenants who use controlled substances,
including medical cannabis. Id. ¶ 23. In March
2016, HBHDC served Plaintiff with a sixty-day notice of
tenancy termination based on a report that she possessed
medical marijuana in her apartment. Id. ¶ 49;
see also Id. Ex. 10 (notice of termination). On July
10, 2018, Plaintiff was removed, along with her daughter,
from her apartment; she remains homeless. Id. ¶
2, 2018, Plaintiff commenced this action, naming as
Defendants Donald Trump in his official capacity as President
of the United States, the Office of the President of the
United States, the United States of America, the Department
of Justice, Jefferson Beauregard Sessions, III in his official
capacity as Attorney General, the Food and Drug
Administration (“FDA”), Scott
Gottlieb in his official capacity as Commissioner
of the FDA, HUD, Ben Carson in his official capacity as
Secretary of HUD, and HBHDC acting as an agent for HUD. Dkt.
No. 1. On August 9, 2018, Plaintiff, along with Rose Myers
and Jane Roe, filed the FAC. See FAC. Myers and Roe,
Dkt. No. 41, and HBHDC, Dkt. No. 28, were all eventually
dismissed from the action without prejudice.
asserts six causes of action: (1) violation of the Ninth
Amendment, (2) violation of the Fifth Amendment, (3)
violation of the Fourth Amendment, (4) violation of the First
Amendment, (5) violation of the Public Trust Doctrine, and
(6) violation of the Tenth Amendment. FAC ¶¶ 55-83.
Plaintiff seeks declaratory relief as to the
unconstitutionality of the Controlled Substances Act
regarding medical marijuana as well as an injunction against
further violations of the Constitution. Id. at 31-32
(Prayer for Relief).
December 21, 2018, Defendants moved to dismiss the FAC.
See Mot. Plaintiff opposed, Dkt. No. 32
(“Opp.”), and Defendants replied, Dkt. No. 33
(“Reply”). The Court held a hearing on March 28,
2019. See Dkt. No. 40.
Rule of Civil Procedure Rule 12(b)(1) allows a party to move
to dismiss for lack of subject matter jurisdiction.
See Fed. R. Civ. P. 12(b)(1).
plaintiff has the burden to establish that subject matter
jurisdiction is proper. Ass'n of Am. Med. Colls. v.
United States, 217 F.3d 770, 778-79 (9th Cir. 2000);
see also Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 378 (1994) (noting that “[i]t is to be
presumed that a cause lies outside . . . [a federal
court's] jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction”)
(citations omitted). To meet this burden, the pleading party
must show “affirmatively and distinctly the existence
of whatever is essential to federal jurisdiction.”
Tosco Corp. v. Cmtys. for a Better Env't, 236
F.3d 495, 499 (9th Cir. 2001).
12(b)(1) motion may be either facial, where the inquiry is
confined to the allegations in the complaint, or factual,
where the court is permitted to look beyond the complaint to
extrinsic evidence. Wolfe v. Strankman, 392 F.3d
358, 362 (9th Cir. 2004); Savage v. Glendale Union High
School Dist. No. 205, 343 F.3d 1036, 1040 n. 2 (9th Cir.
2003). A facial challenge “asserts that the allegations
contained in a complaint are insufficient on their face to
invoke federal jurisdiction.” Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
plaintiff fails to establish subject matter jurisdiction,
“the court, on having the defect called to its
attention or on discovering the same, must dismiss the case,
unless the defect be corrected by amendment.” Tosco
Corp., 236 F.3d at 499 (quoting Smith v.
McCullough, 270 U.S. 456, 459 (1926)). Where the
plaintiff cannot cure a jurisdictional defect by amendment,
the court may dismiss the complaint without leave to amend.
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003).