Elliott et al v. Amador County Unified School District et al

Filing 17

MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr. on 7/6/2012 GRANTING 10 Motion to Dismiss with leave to amend as to Plaintiffs' first through seventh causes of action; GRANTING 10 Motion to Dismiss without leave to amend as to Plaintiffs' punitive damages allegations against the entity defendants; DENYING 10 Motion to Dismiss as to Plaintiff's punitive damages allegations against individual Defendant Hawk; GRANTING 11 Motion to Strike; INFORMING Plaintiffs that they may file an amended complaint within 20 days. (Michel, G)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MARIE ELLIOTT, et al.,

12

No. 2:12-cv-00117-MCE-DAD

Plaintiffs,
v.

MEMORANDUM AND ORDER

13
14

AMADOR COUNTY UNIFIED
SCHOOL DISTRICT, et al.,

15

Defendants.

16

----oo0oo----

17
18

Plaintiffs Marie Elliott (“Elliott”), Andrea Kruse

19

(“Kruse”), Patricia Roots (“Roots”) and Randi Wilson (“Wilson”)

20

(collectively, “Plaintiffs”) initiated this action against

21

Defendants Amador County Unified School District (“ACUSD” or the

22

“District”), Amador County Office of Education (“ACOE”) and

23

Theresa Hawk (“Hawk”) (collectively, “Defendants”) alleging

24

violations of both state and federal law arising primarily out of

25

Plaintiffs’ claims that they were retaliated against for

26

complaining to their employers about deficient special education

27

programs and facilities being offered or provided to students.

28

///
1

1

Presently before the Court are Defendants’ Motion to Dismiss

2

Plaintiffs’ state claims and Plaintiffs’ prayer for punitive

3

damages as well as Defendants’ Motion to Strike a particular

4

allegation repeated throughout Plaintiffs’ Complaint.

5

following reasons, Defendants’ Motion to Dismiss is GRANTED in

6

part and DENIED in part, and Defendants’ Motion to Strike is

7

GRANTED.1

For the

8
BACKGROUND2

9
10

At the time of the events alleged in the Complaint,

11
12

Plaintiff Elliott was a special education teacher employed within

13

the ACUSD.

14

structured day class for special needs students who are autistic

15

or display autistic-like behaviors.

16

were employed within the ACUSD as Elliott’s teacher’s aides.

17

Plaintiffs all had excellent working relationships, and thus

18

allege that Defendants knew any retaliation against one Plaintiff

19

would be perceived by all Plaintiffs to be directed at each of

20

them individually.

21

///

22

///

23

///

24

///

Elliott served as a program instructor in a

The remaining Plaintiffs

25
1

26
27

Because oral argument will not be of material assistance,
the Court ordered this matter submitted on the briefing. E.D.
Cal. R. 230(g).
2

28

The following facts are derived, at times verbatim, from
Plaintiffs’ Complaint.
2

1

Defendant Hawk served the entity Defendants as the Executive

2

Director of Special Education and thus was Elliott’s supervisor.

3

According to Plaintiffs, at all relevant times Defendant Hawk was

4

acting under color of law and her conduct was undertaken in the

5

performance of her official duties for the entity Defendants.

6

Very generally, as is relevant to the instant Motions,

7

Plaintiffs aver that Defendants coerced them to violate the law

8

and to refrain from exercising their statutory rights and duties

9

regarding the needs of their students.

In addition, Plaintiffs

10

contend that when they refused to succumb to Defendants demands,

11

they were repeatedly subjected to various forms of retaliation.

12

While it is unnecessary for purposes of the instant Motions to

13

repeat all of the facts set forth in the Complaint, a few

14

particularly important retaliation-related averments follow.

15

First, Plaintiffs contend that Defendant Hawk asked Elliott

16

to attend a “strategy meeting” at which Hawk advised Elliott the

17

District was terminating services with a provider whose services

18

were mandated by various student Individualized Education

19

Programs (“IEP”).

20

federal law, as well as by District policies and procedures, to

21

meet unique educational needs of special needs students.

22

plans cannot be unilaterally created or modified, but instead may

23

only be created and modified pursuant to IEP procedures.

24

informed Elliott that the ACUSD was making its provider change

25

outside of the IEP procedural process, but nonetheless proceeded

26

to direct Elliott to support the District’s decision, regardless

27

of whether Elliott actually believed the change to be in any

28

particular student’s best interests.

IEPs are education plans mandated by state and

3

These

Hawk

1

In addition, Elliott was later advised she would be labeled

2

“insubordinate” if she failed to support the District’s IEP offer

3

to one student, and a district psychologist also demanded that

4

Elliott complete IEP forms in advance of meetings rather than

5

during meetings, as was required by the law and district policies

6

and procedures.

7

needed “to get on board with Hawk.”

8
9

That same psychologist advised Elliott she

As a consequence, Elliott filed a complaint with the ACOE
against the psychologist and Hawk.

Plaintiffs believe all

10

Defendants were aware of this complaint, and, despite being named

11

in that charge, Hawk was assigned to conduct the relevant

12

investigation.

13

Subsequently, Defendants began to exclude Elliott from

14

participating in the assessment of preschoolers for placement in

15

her class.

16

from placing students with Elliott.

17

refusing to provide Elliott with substitute teachers, substitutes

18

she needed so she could attend meetings or training sessions.

19

Defendants also refused to provide substitutes for Elliott’s

20

aides, which left Elliott’s classroom understaffed.

Defendants also discouraged third-party assessors
Defendants then started

21

Eventually, Hawk informed Elliott that she and a number of

22

her students were being transferred from the Jackson Structured

23

Autistic Program to the Severely Handicapped Special Day Class in

24

Plymouth, California.

25

county to the other and increased Elliott’s commute twenty-five

26

minutes each way.

27

Elliott to falsely inform parents that the move did not

28

constitute a change to student IEPs.

This transfer was from one side of the

More importantly, Hawk purportedly ordered

4

When Elliott’s class was subsequently moved to the Plymouth

1
2

location, she was given inadequate time to prepare, which

3

resulted in a number of classroom items being left behind.

4

Moreover, the classroom to which Elliott was re-assigned was

5

known to be the worst room in the District.

6

for instruction in over six years, and prior occupants had become

7

sick after spending too much time in the space.

8

was oddly shaped, dark and cramped, making it difficult for staff

9

to see and monitor students from most vantage points in the room.

10

The toilets were duct taped together, and unfit for use, and the

11

room was connected via a ventilation system to containers the

12

District used to store volatile materials.

13

sickening odor and it was soon discovered through a hole in the

14

ceiling that it was inhabited by rodents and filled with rodent

15

feces.

It had not been used

The space itself

The room had a

The room had also been subject to water and mold damage.

Elliott consequently filed a complaint with the California

16
17

Office of Civil Rights, and Plaintiffs Kruse and Wilson spoke out

18

at a school board meeting against Defendants’ transfer of

19

Elliott’s students to Plymouth, after which the District refused

20

to provide basic sanitary supplies, such as sanitizing spray,

21

covered garbage cans, or a broom and dustpan, for Elliott’s

22

classroom.

23

highchairs were removed from the room.

24

of students suffered injuries and illness as a result of the

25

conditions at the Plymouth site.

26

///

27

///

28

///

One of the toilets remained broken, and all

5

Plaintiffs and a number

1

Plaintiffs thus continued to complain about the above

2

conditions, but Defendants never took any adequate measures to

3

rectify the situation.

4

retaliate against Plaintiffs by, for example, requiring Elliott

5

to pre-authorize her opinions with the ACUSD prior to meeting

6

with any parents, denying Kruse’s son, a student in the district,

7

proper placement and assistance, informing Wilson she would no

8

longer be able to ride the student van to and from work, and,

9

ultimately, transferring Elliott’s aides out of her class.

Instead, Defendants continued to

10

Defendants then provided Elliott with two new aides who were not

11

allowed to attend students’ toileting needs.

12

demanded Elliott work through breaks because students could not

13

be left alone with the new aides.

Defendants further

14

Elliott was eventually forced to take a medical leave of

15

absence due to the unhealthy conditions in her classroom, and she

16

ultimately announced her retirement, which would become effective

17

at the end of the academic year.

18

of her announcement, Kruse, Roots and Wilson were transferred

19

back to Elliott’s class at the Plymouth school, at which time the

20

class was being relocated to a new larger classroom and was being

21

taught by a newly-hired teacher.3

Within approximately one week

As a result of the above conduct, and a litany of other

22
23

things, Plaintiffs served a claim on the Amador County Board of

24

Supervisors pursuant to the California Government Claims Act

25

(“GCA”), California Government Code §§ 810, et seq.

26

///

27
3

28

It is unclear from the Complaint, but it appears to the
Court Elliott was still on medical leave at this time.
6

1

In addition, the day before filing their instant Complaint,

2

Plaintiffs served on their supervisor, a school administrator, or

3

the public school employer a Complaint to Law Enforcement (“Law

4

Enforcement Complaint”) pursuant to California Education Code

5

§ 44114 alleging actual or attempted acts of reprisal,

6

retaliation, threats, coercion, or similar improper acts

7

prohibited by section 44113.

8

this case alleging causes of action for: 1) breach of contract

9

(First and Second Causes of Action); 2) violation of Education

10

Code § 44113 (Third Cause of Action); 3) violation of Education

11

Code § 44114 (Fourth Cause of Action); 4) violation of Education

12

Code §§ 210, 220, 221.1, 262.3, 262.4 (Fifth Cause of Action);

13

5) violation of Labor Code § 1102.5 (Sixth Cause of Action);

14

6) violation of Labor Code §§ 6400, et seq. (Seventh Cause of

15

Action); 7) retaliation in violation of Section 504 of the

16

Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. (Eighth

17

Cause of Action); and 8) violation of the First Amendment,

18

42 U.S.C. § 1983 (Ninth Cause of Action).

Plaintiffs subsequently initiated

19

On February 21, 2012, Defendants moved to dismiss

20

Plaintiffs’ state law causes of action because, among other

21

things, Plaintiffs allegedly failed to file a proper claim with

22

Defendants as required by the GCA, because the entity Defendants

23

cannot be held liable for punitive damages as a matter of law and

24

because insufficient facts have been alleged against Defendant

25

Hawk to subject her to punitive damages as well.

26

filed a Motion to Strike as redundant a sentence repeated with

27

only minor variation at least forty-seven (47) times throughout

28

the Complaint.
7

Defendants also

1

For the following reasons, Defendants’ Motion to Dismiss is

2

GRANTED in part and DENIED in part, and Defendants’ Motion to

3

Strike is GRANTED.

4
STANDARD

5
A.

6

Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6).

7
On a motion to dismiss for failure to state a claim under

8
9

Federal Rule of Civil Procedure 12(b)(6),4 all allegations of

10

material fact must be accepted as true and construed in the light

11

most favorable to the nonmoving party.

12

Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

13

“requires only ‘a short and plain statement of the claim showing

14

that the pleader is entitled to relief,’ in order to ‘give the

15

defendant fair notice of what the...claim is and the grounds upon

16

which it rests.’”

17

(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

18

complaint attacked by a Rule 12(b)(6) motion to dismiss does not

19

require detailed factual allegations.

20

plaintiff’s obligation to provide the grounds of his entitlement

21

to relief requires more than labels and conclusions, and a

22

formulaic recitation of the elements of a cause of action will

23

not do.”

24

court is not required to accept as true a “legal conclusion

25

couched as a factual allegation.”

26

///

Id.

Cahill v. Liberty Mut.
Rule 8(a)(2)

Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555

Id.

A

However, “a

(internal citations and quotations omitted).

27
4

28

All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
8

A

1

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) (quoting

2

Twombly, 550 U.S. at 555).

3

accept as true allegations that are merely conclusory,

4

unwarranted deductions of fact, or unreasonable inferences.”

5

re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.

6

2008) (internal citations and quotations omitted).

7

allegations must be enough to raise a right to relief above the

8

speculative level.”

The Court also is not required “to

In

“Factual

Twombly, 550 U.S. at 555.

Furthermore, “Rule 8(a)(2)...requires a ‘showing,’ rather

9
10

than a blanket assertion, of entitlement to relief.”

11

550 U.S. at 556 n.3 (internal citations and quotations omitted).

12

“Without some factual allegation in the complaint, it is hard to

13

see how a claimant could satisfy the requirements of providing

14

not only ‘fair notice’ of the nature of the claim, but also

15

‘grounds’ on which the claim rests.”

16

pleading must contain “only enough facts to state a claim to

17

relief that is plausible on its face.”

18

“plaintiffs...have not nudged their claims across the line from

19

conceivable to plausible, their complaint must be dismissed.”

20

Id.

21

strikes a savvy judge that actual proof of those facts is

22

improbable, and ‘that a recovery is very remote and unlikely.’”

23

Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

24

///

25

///

26

///

27

///

28

///

Id.

Twombly,

(citation omitted).

Id. at 570.

A

If the

However, “a well-pleaded complaint may proceed even if it

9

1

A court granting a motion to dismiss a complaint must then

2

decide whether to grant a leave to amend.

Leave to amend should

3

be “freely given” where there is no “undue delay, bad faith or

4

dilatory motive on the part of the movant,...undue prejudice to

5

the opposing party by virtue of allowance of the amendment, [or]

6

futility of the amendment....”

7

(1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

8

1052 (9th Cir. 2003) (listing the Foman factors as those to be

9

considered when deciding whether to grant leave to amend).

Foman v. Davis, 371 U.S. 178, 182

10

Dismissal without leave to amend is proper only if it is clear

11

that “the complaint could not be saved by any amendment.”

12

Plex Techs., Inc. v. Crest Group, Inc., 499 F. 3d 1048, 1056 (9th

13

Cir. 2007) (internal citations and quotations omitted).

Intri-

14
15

B.

Motion to Strike Pursuant to Federal Rule of Civil
Procedure 12(f).

16
17

The Court may strike “from a pleading any insufficient

18

defense or any redundant, immaterial, impertinent, or scandalous

19

matter.”

20

motion to strike is to avoid the expenditure of time and money

21

that must arise from litigating spurious issues by dispensing

22

with those issues prior to trial....”

23

Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).

24

matter is that which has no essential or important relationship

25

to the claim for relief or the defenses being pleaded.”

26

Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (rev’d on

27

other grounds Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994))

28

(internal citations and quotations omitted).

Fed. R. Civ. Pro. 12(f).

10

The “function of a 12(f)

Sidney-Vinstein v. A.H.
“Immaterial

Fantasy,

1

“‘Redundant’ allegations are those that are needlessly repetitive

2

or wholly foreign to the issues involved in the action.”

3

California Dept. of Toxic Substances Control v. Alco Pacific,

4

Inc., 217 F. Supp. 2d 1028, 1032-33 (C.D. Cal. 2002).

5
ANALYSIS

6
A.

7

Defendants’ Motion to Dismiss Plaintiffs’ First Through
Seventh Causes of Action.

8
Defendants move to dismiss Plaintiffs’ first through seventh

9
10

causes of action, namely their state law claims, for failure to

11

comply with California’s GCA.

12

public entity, the GCA requires “the timely presentation of a

13

written claim and the rejection of the claim in whole or in

14

part.”

15

1477 (9th Cir. 1995).

16

bringing suit against a public employee who is alleged to have

17

caused injury while acting within the scope of his or her

18

employment.

19

(1991).

20

purposes: First, they give the governmental entity an opportunity

21

to settle just claims before suit is brought.

22

permit the entity to make an early investigation of the facts on

23

which a claim is based, thus enabling it to defend itself against

24

unjust claims and to correct the conditions or practices which

25

gave rise to the claim.”

26

Francisco, 145 Cal. App. 4th 1139, 1151 (2006) (internal

27

citations and quotations omitted).

28

///

Before bringing a suit against a

Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470,
Claims must also be presented prior to

Briggs v. Lawrence, 230 Cal. App. 3d 605, 612-13

“[T]he claims-presentation requirements serve two basic

Second, they

Lozada v. City and County of San

11

1

A plaintiff must allege facts demonstrating either compliance

2

with the GCA requirement or an excuse for noncompliance as an

3

essential element of the cause of action.

4

Superior Court (Bodde), 32 Cal. 4th 1234, 1243-44 (2004).

5

Failure to allege compliance or an excuse for noncompliance

6

constitutes a failure to state a cause of action and results in a

7

dismissal of such claims.

Id.

In their Complaint, Plaintiffs allege that they “timely

8
9

State of California v.

complied” with the GCA.

Complaint, ¶ 14.

This conclusory

10

allegation is belied, however, by the actual claim form attached

11

to Plaintiffs’ Complaint.5

12

Plaintiffs submitted their claim to the Board of Supervisors of

13

Amador County, not to the governing body of ACUSD or ACOE, the

14

actual Defendants in this action.

15

thus correctly argue Plaintiffs’ state law claims must be

16

dismissed.

17

217 Cal. App. 3d 692, 697-700 (1990); Jackson v. Board of Ed. Of

18

City of Los Angeles, 250 Cal. App. 2d 856 (1967).

According to that document,

Given this failure, Defendants

See Johnson v. San Diego Unified School District,

Plaintiffs nonetheless contend that they substantially

19
20

complied with the GCA by filing their Claim with the Board of

21

Supervisors and by filing their Law Enforcement Complaint.

22

///

23
24
25
26
27
28

5

“[I]f a complaint is accompanied by attached documents,
the court is not limited by the allegations contained in the
Complaint. These documents are part of the complaint and may be
considered in determining whether the plaintiff can prove any set
of facts in support of the claim. Moreover, when the allegations
of the complaint are refuted by an attached document, the Court
need not accept the allegations as being true.” Roth v. Garcia
Marquez, 942 F.2d 617, 625 n.1 (9th Cir. 1991) (internal
citations and quotations omitted).
12

1

Plaintiffs further argue that the issues raised by Defendants’

2

Motion are not amenable to resolution on the pleadings and must

3

be resolved, at the earliest, on summary judgment.

4

contentions are rejected.

Plaintiffs’

First, it is clear that the substantial compliance doctrine

5
6

does not apply when a claim is served on an incorrect entity,

7

Johnson, 217 Cal. App. 3d at 697, and Plaintiffs have provided no

8

persuasive arguments to convince the Court otherwise.

9

Plaintiffs’ authorities stand for the unremarkable “proposition

Indeed,

10

that there will be substantial compliance with the claims statute

11

when the claim either is actually received by the proper board or

12

should be received because it was served on a subordinate of the

13

proper board.”

14

omitted).

15

situation exists here.

16

turns on the viability of the decision rendered in Jamison v.

17

State of California, 31 Cal. App. 3d 513 (1973), a decision since

18

rejected by numerous courts as contrary to the requirements of

19

the Government Code.

20

700425 (E.D. Cal.); Santos v. Merritt College, 2008 WL 4570708,

21

*4 (N.D. Cal.);

22

761, 770 (2002); Life v. County of Los Angeles, 227 Cal. App. 3d

23

894, 900-01 (1991).

24

claim submitted to the County Board of Supervisors suffices as a

25

claim presented to Defendants under the GCA fails.

26

///

27

///

28

///

Id. at 698 (internal citations and quotations

No facts are alleged, however, to indicate either such
In addition, Plaintiffs’ authority all

See Attebery v. Placer County, 2009 WL

Del Real v. City of Riverside, 95 Cal. App. 4th

Accordingly,

13

Plaintiffs’ argument that the

Plaintiffs’ additional contention that their Law Enforcement

1
2

Complaint substantially complied with the GCA requirements and

3

that Defendants waived any objections they may have had to that

4

notice when Defendants failed to notify Plaintiffs of any

5

deficiencies therein is similarly flawed.

6

10:12 (citing Phillips v. Desert Hospital District, 49 Cal. 3d

7

699, 711-12 (1989)).

8

Complaint was purportedly filed only one day prior to the

9

initiation of the instant litigation, and it is thus unclear how

See Opposition, 9:15-

First and foremost, the Law Enforcement

10

that document would have served the purposes underlying the

11

claims presentation requirements of the GCA.

12

claims are required to be filed and either “acted upon...or....

13

deemed to have been rejected” by the public entity before a suit

14

is permitted to proceed.

15

allege no facts, however, indicating Defendants either acted upon

16

the Law Enforcement Complaint or that it was deemed rejected by

17

Defendants at any time.

18

Complaint before this Court indicates that the Law Enforcement

19

Complaint was served on the proper parties as required by

20

California Government Code § 915.

21

attempt to recast their Law Enforcement Complaint as a claim

22

under the GCA fails.

Moreover, GCA

Cal. Gov. Code § 945.4.

Plaintiffs

In addition, nothing in the current

Accordingly, Plaintiffs’

Finally, Plaintiffs’ argument that the issue of whether a

23
24

proper claim has been submitted cannot be resolved on motion to

25

dismiss is rejected as well.

26

facts were initially pled indicating compliance with the GCA may

27

have been had.

28

///

Such would be the case only if any

14

1

Such facts are absent here, and dismissal is thus proper.

2

Accordingly, Plaintiffs’ first seven causes of action are now

3

DISMISSED with leave to amend.

4
B.

5

Defendants’ Motion to Dismiss Plaintiffs’ Punitive
Damages Allegations.

6
7

Defendants move to dismiss Plaintiffs’ request for punitive

8

damages on the bases first that the entity Defendants are immune

9

from such liability pursuant to California Government Code § 818

10

and second that insufficient facts have been alleged against

11

Defendant Hawk to show she acted with the requisite “oppression,

12

fraud, or malice.”

13

872 (1977).

14

damages from the entity Defendants.

15

Defendants’ motion to dismiss those allegations is GRANTED

16

without leave to amend.

Brousseau v. Jarrett, 73 Cal. App. 3d 864,

Plaintiffs concede they cannot recover punitive
Accordingly, the entity

Plaintiffs dispute, however, Defendants’ characterization of

17
18

the Complaint as to Hawk and argue that the facts as alleged

19

against her support the imposition of punitive damages.

20

Court agrees with Plaintiffs.

21

they consistently complained regarding Defendants’ purportedly

22

unlawful actions and that Plaintiffs were rewarded with a

23

transfer to the worst classroom in the District, a classroom that

24

is alleged to have been basically uninhabitable, causing illness

25

and injury to both teachers and students.

26

///

27

///

28

///

The

Plaintiffs essentially allege that

15

1

When taken as true, Plaintiffs’ allegations indicate that not

2

only the Plaintiffs, but their vulnerable charges as well, were

3

made to function under inhumane conditions, conducive neither to

4

working or learning, all in retaliation for Plaintiffs’ attempt

5

to protect their rights as well as the rights of their special

6

needs students.

7

the Court finds Plaintiffs have alleged sufficient facts to

8

support their request for punitive damages against Hawk.

9

Defendant Hawk’s Motion to Dismiss this claim is DENIED.

Accordingly, for purposes of the instant Motion,

10
C.

11

Defendants’ Motion to Strike.

12
Finally, Defendants move to strike the various formulations

13
14

of the same sentence that Plaintiffs have included within their

15

Complaint an estimated forty-seven (47) times.

16

Plaintiffs repeat that: “Defendants’ conduct constituted, among

17

other things, illegal harassment, coercion, and retaliation.”

18

This averment is a legal conclusion that adds nothing of

19

substance to the Complaint, and there is certainly no need for it

20

to be repeated to the extent it was here.

21

Defendants’ Motion to Strike this sentence, or any formulation

22

thereof, from paragraphs 21-22, 24, 26-34, 37-38, 40, 42-50, 53,

23

56-57, 60-62, 64-65, 67-69, 71-72, 75-76, 78, 83, 85-87 and 89-91

24

of the Complaint is hereby GRANTED.

25

///

26

///

27

///

28

///
16

Namely,

Accordingly,

CONCLUSION

1
2
3

For the reasons stated above, Defendants’ Motion to Dismiss

4

(ECF No. 10) is GRANTED with leave to amend as to Plaintiffs’

5

first through seventh causes of action, GRANTED without leave to

6

amend as to Plaintiffs’ punitive damages allegations against the

7

entity Defendants and DENIED as to Plaintiffs’ punitive damages

8

allegations against individual Defendant Hawk.

Defendants’

9

Motion to Strike (ECF No. 11) is also GRANTED.

Not later than

10

twenty (20) days following the date this Memorandum and Order is

11

electronically filed, Plaintiffs may (but are not required to)

12

file an amended complaint.

13

within said twenty (20)-day period, without further notice to the

14

parties, the causes of action dismissed by virtue of this

15

Memorandum and Order will be dismissed with prejudice.

16

If no amended complaint is filed

IT IS SO ORDERED.

17
18

Dated: July 6, 2012

19
20
21

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
17