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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 DAVID FOSTER, Plaintiff, v. 13 14 15 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 16 17 and the City of South Lake Tahoe (“City”) and Nancy Kerry, City 18 Manager for the City of South Lake Tahoe (collectively, 19 “Defendants”). 20 dismiss. 21 discerned a Rule 12(b)(6) issue regarding Foster’s § 1983 claim. 22 Concluding that this Court had jurisdiction, the Court denied 23 Defendants’ motion, but ordered supplemental briefing on the Rule 24 12(b)(6) issue. 25 stated below, the Court concludes Foster failed to state a § 1983 26 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 27 1 28 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 1 1 2 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND In April 2015 the City commissioned a sculpture to be built 3 at Champions Plaza to celebrate local athletes and their 4 accomplishments in the 2014 Winter Olympics. 5 1, ¶ 9. 6 selected Foster’s “Olympic Flame” design. 7 parties executed a written contract, see id. ¶ 12, and then 8 Foster began making maquettes (i.e., three-dimensional versions 9 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 10 third maquette, the City terminated the contract and refused to 11 reimburse him for his expenses. 12 Defendants, bringing a Fifth Amendment § 1983 claim, a breach of 13 contract claim, and a misappropriation of intellectual property 14 claim. See id. ¶¶ 15-16. Foster sued See Compl. at 5-8. 15 II. OPINION 16 A. Sua Sponte Rule 12(b)(6) Challenge 17 A court may dismiss a claim sua sponte for failure to state 18 a claim. 19 *15 (E.D. Cal. Apr. 3, 2017) (internal citation omitted). 20 21 See Vahora v. Masood, No. 16-1624, 2017 WL 1213423, at 1. Defendant Kerry The Court dismisses Foster’s § 1983 claim against defendant 22 Kerry because Foster improperly sued her in her official 23 capacity. 24 WL 319232, at *18 (E.D. Cal. Jan. 27, 2016) (federal district 25 courts routinely dismiss official-capacity claims as duplicative 26 or redundant when a plaintiff also brings the same § 1983 claim See Harmon v. Cty. of Sacramento, No. 12-2758, 2016 27 28 scheduled for March 7, 2017. In deciding this motion, the Court takes as true all well-pleaded facts in the complaint. 2 1 against a municipality) (internal citations omitted). 2 3 2. The City Foster argues this Court may dismiss a claim sua sponte for 4 failure to state a claim only if the plaintiff cannot possibly 5 win relief. 6 1213423 at *15 (internal citation omitted). 7 a court notifies a plaintiff, that plaintiff must meet Rule 8 8(a)’s plausibility standard to survive the court’s sua sponte 9 challenge. 10 omitted). 11 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 12 the Takings Clause when [they] took [his] designs, maquettes, 13 and labor, for public use and without just compensation.” 14 Compl. ¶ 25. 15 See Monell v. Dep’t of Soc. Servs. of the City of New York, 436 16 U.S. 658, 694—95 (1978) (holding that a plaintiff must show the 17 municipality had a policy or custom that violated plaintiff’s 18 federally protected rights). 19 not allege a policy or custom as the moving force behind his 20 alleged constitutional violation, the Court dismisses Foster's 21 § 1983 claim for failure to state a Monell claim. 22 finds, however, that further amendment would not be futile and 23 will give Plaintiff one more opportunity to try to properly 24 plead his § 1983 claim against the City. 25 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 26 B. 27 That two remaining claims brought by Foster are state law 28 State Law Claims claims for breach of contract and misappropriation of 3 1 intellectual property. 2 supplemental jurisdiction over these claims if Foster elects not 3 to amend his complaint to include a § 1983 claim-the only claim 4 over which this Court has original jurisdiction. 5 § 1367(c)(3). 6 C. 7 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 8 (“Filing Requirements Order”), and a violation results in 9 monetary sanctions, see id. Defendants’ reply brief for their 10 Rule 12(b)(1) motion to dismiss exceeded those limits. 11 Reply, ECF No. 7 (8 pages); see Filing Requirements Order at 1 12 (imposing 5-page limit for reply briefs and charging $50.00 for 13 each additional page). 14 violating the Order. 15 See The Court sanctions Defendants $150 for III. ORDER 16 For the reasons set forth above, the Court dismisses all 17 claims against defendant Nancy Kerry with prejudice and dismisses 18 Foster’s § 1983 claim against the City with leave to amend. 19 Foster shall file his amended complaint within twenty days of the 20 date of this Order and the City shall file its responsive 21 pleading within twenty days thereafter. If Foster elects not to 22 file an amended complaint this case will be dismissed without 23 prejudice. 24 than April 26, 2017. 25 26 Finally, Defendants shall pay the Court $150 no later IT IS SO ORDERED. Dated: April 21, 2017 27 28 4

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