Foster v. City of South Lake Tahoe et al

Filing 12

ORDER signed by District Judge John A. Mendez on 04/21/17 ORDERING that the 4 Motion to Dismiss is GRANTED; the Court DISMISSES all claims against defendant Nancy Kerry WITH PREJUDICE and DISMISSES Foster's § 1983 claim against the City with LEAVE TO AMEND. Foster shall file his amended complaint within 28 days and the City shall file its responsive pleading within 28 days thereafter. If Foster elects not to file an amended complaint this case will be dismissed without prejudice. Defendants shall pay the Court $150 in sanctions by 04/26/17. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID FOSTER,
Plaintiff,
v.

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No.

2:16-cv-02840-JAM-EFB

ORDER

CITY OF SOUTH LAKE TAHOE and
NANCY KERRY,
Defendants.
This case involves a dispute between Plaintiff David Foster

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and the City of South Lake Tahoe (“City”) and Nancy Kerry, City

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Manager for the City of South Lake Tahoe (collectively,

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“Defendants”).

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dismiss.

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discerned a Rule 12(b)(6) issue regarding Foster’s § 1983 claim.

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Concluding that this Court had jurisdiction, the Court denied

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Defendants’ motion, but ordered supplemental briefing on the Rule

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12(b)(6) issue.

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stated below, the Court concludes Foster failed to state a § 1983

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claim. 1

Defendants filed a Rule 12(b)(1) motion to

ECF No. 4.

While evaluating that motion, the Court

See Min. Order, ECF No. 9.

For the reasons

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

In April 2015 the City commissioned a sculpture to be built

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at Champions Plaza to celebrate local athletes and their

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accomplishments in the 2014 Winter Olympics.

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1, ¶ 9.

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selected Foster’s “Olympic Flame” design.

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parties executed a written contract, see id. ¶ 12, and then

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Foster began making maquettes (i.e., three-dimensional versions

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of his design), see id. ¶¶ 12-15.

See Compl., ECF No.

The City opened a bidding process and eventually
See id. ¶ 11.

The

After Foster submitted his

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third maquette, the City terminated the contract and refused to

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reimburse him for his expenses.

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Defendants, bringing a Fifth Amendment § 1983 claim, a breach of

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contract claim, and a misappropriation of intellectual property

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claim.

See id. ¶¶ 15-16.

Foster sued

See Compl. at 5-8.

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II.

OPINION

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A.

Sua Sponte Rule 12(b)(6) Challenge

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A court may dismiss a claim sua sponte for failure to state

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a claim.

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*15 (E.D. Cal. Apr. 3, 2017) (internal citation omitted).

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See Vahora v. Masood, No. 16-1624, 2017 WL 1213423, at

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Defendant Kerry

The Court dismisses Foster’s § 1983 claim against defendant

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Kerry because Foster improperly sued her in her official

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capacity.

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WL 319232, at *18 (E.D. Cal. Jan. 27, 2016) (federal district

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courts routinely dismiss official-capacity claims as duplicative

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or redundant when a plaintiff also brings the same § 1983 claim

See Harmon v. Cty. of Sacramento, No. 12-2758, 2016

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scheduled for March 7, 2017. In deciding this motion, the Court
takes as true all well-pleaded facts in the complaint.
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against a municipality) (internal citations omitted).

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The City

Foster argues this Court may dismiss a claim sua sponte for

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failure to state a claim only if the plaintiff cannot possibly

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win relief.

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1213423 at *15 (internal citation omitted).

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a court notifies a plaintiff, that plaintiff must meet Rule

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8(a)’s plausibility standard to survive the court’s sua sponte

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challenge.

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omitted).

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See Pl.’s Suppl. Br. at 1.

Vahora, 2017 WL
But where, as here,

Vahora, 2017 WL 1213423 at *15 (internal citation

Foster has not done so.

He alleges “Defendants violated

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the Takings Clause when [they] took [his] designs, maquettes,

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and labor, for public use and without just compensation.”

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Compl. ¶ 25.

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See Monell v. Dep’t of Soc. Servs. of the City of New York, 436

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U.S. 658, 694—95 (1978) (holding that a plaintiff must show the

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municipality had a policy or custom that violated plaintiff’s

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federally protected rights).

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not allege a policy or custom as the moving force behind his

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alleged constitutional violation, the Court dismisses Foster's

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§ 1983 claim for failure to state a Monell claim.

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finds, however, that further amendment would not be futile and

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will give Plaintiff one more opportunity to try to properly

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plead his § 1983 claim against the City.

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Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

That does not suffice to state a Monell claim.

Because Foster’s complaint does

This Court

See DeSoto v. Yellow

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B.

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That two remaining claims brought by Foster are state law

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State Law Claims

claims for breach of contract and misappropriation of
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intellectual property.

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supplemental jurisdiction over these claims if Foster elects not

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to amend his complaint to include a § 1983 claim-the only claim

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over which this Court has original jurisdiction.

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§ 1367(c)(3).

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C.

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This Court enforces page limits for briefs, see ECF No. 3-2

The Court intends to decline to exercise

See 28 U.S.C.

Sanctions

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(“Filing Requirements Order”), and a violation results in

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monetary sanctions, see id.

Defendants’ reply brief for their

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Rule 12(b)(1) motion to dismiss exceeded those limits.

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Reply, ECF No. 7 (8 pages); see Filing Requirements Order at 1

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(imposing 5-page limit for reply briefs and charging $50.00 for

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each additional page).

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violating the Order.

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See

The Court sanctions Defendants $150 for

III.

ORDER

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For the reasons set forth above, the Court dismisses all

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claims against defendant Nancy Kerry with prejudice and dismisses

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Foster’s § 1983 claim against the City with leave to amend.

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Foster shall file his amended complaint within twenty days of the

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date of this Order and the City shall file its responsive

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pleading within twenty days thereafter. If Foster elects not to

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file an amended complaint this case will be dismissed without

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prejudice.

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than April 26, 2017.

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Finally, Defendants shall pay the Court $150 no later

IT IS SO ORDERED.
Dated: April 21, 2017

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