Fallay v. City and County of San Francisco et al

Filing 67

ORDER by Judge Charles R. Breyer granting 27 Motion to Dismiss; granting 30 Motion to Strike ; granting 33 Motion to Strike ; granting 37 Motion to Dismiss; denying 63 Motion to Strike ; granting 26 Motion to Dismiss. (crblc1, COURT STAFF) (Filed on 12/21/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The City Defendants have also moved to strike Docket Entry # 61, a "Response" filed by Plaintiff to the City Defendants' Rely. The Court DENIES this motion to strike, but reminds Plaintiff to abide by Local Rule 7-3(d) in any future filings.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

AUGUSTINE FALLAY, Plaintiff, v. CITY AND COUNTY of SAN FRANCISCO, et al., Defendants. /

No. CV 08-02261 CRB ORDER DISMISSING FIRST AMENDED COMPLAINT

Plaintiff Augustine Fallay alleges that he was the victim of a wide-ranging conspiracy that involved, among other things, his termination, investigation, and prosecution. In his First Amended Complaint, filed in June 2009, Fallay sued four separate groups of Defendants: (1) David Carr and Bruce Whitten, both agents of the FBI ("Federal Defendants"); (2) the City and County of San Francisco and employees David Pfeifer, Lawrence Badiner, Craig Nikitas, Amy Lee, and Karla Johnson ("City Defendants"); (3) First American Specialty Insurance Company and employees Robert Dalton and Cindy Lloyd ("Insurer Defendants"); and (4) Tony Fu and Crystal Lei, private citizens. Cmplt. at ¶¶ 4-15. All of the defendants have moved to dismiss and/or strike the Complaint.1

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11

As the Court explained at the motion hearing on December 18, 2009, the motions are GRANTED, with the following results. As to the Federal Defendants: · · The complaint is dismissed for improper service. In the alternative, Plaintiff's claims against the Federal Defendants in their official capacities and in their individual capacities are dismissed with prejudice.

As to the City Defendants: · · · · The claims against David Pfeifer are dismissed with prejudice. The claims against Karla Johnson, Lawrence Badiner, Craig Nikitas, and Amy Lee are dismissed without prejudice. The FEHA claim is dismissed with prejudice. Plaintiff's remaining claims against the City are dismissed without prejudice.

As to the Insurer Defendants: The claims against Cindy Lloyd are dismissed without prejudice. The §§ 1981 and 1983 claims are dismissed with prejudice. The § 1985 claim is dismissed without prejudice. The claim for intentional infliction of emotional distress is dismissed with prejudice The malicious prosecution claim is dismissed without prejudice. The claim for breach of the covenant of good faith and fair dealing is dismissed with prejudice. The claim under Cal. Civil Code § 52.1 is dismissed without prejudice.

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As to Fu and Lei: · The claims against Fu and Lei are stricken based on Cal. Civ. Proc. Code § 425.16. In the alternative: The §§ 1981 and 1983 claims are dismissed with prejudice. The § 1985 claim is dismissed without prejudice. The claim under Cal. Civil Code § 52.1 is dismissed without prejudice. The malicious prosecution claim is dismissed without prejudice. The intentional infliction of emotional distress claim is dismissed with prejudice. Plaintiff shall have thirty (30) days from the date of this Order in which to file a Second Amended Complaint, should he choose to do so. Plaintiff is reminded that a complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). IT IS SO ORDERED.

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Dated: December 21, 2009

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
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