Bennett Montoya, et al v. City of San Francisco, CA. et al

Filing 60

ORDER RE MOTION TO DISMISS SECOND AMENDED COMPLAINT. Signed by Judge James Donato on 3/19/2020. (jdlc2S, COURT STAFF) (Filed on 3/19/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BENNETT MONTOYA,
Plaintiff,

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ORDER RE MOTION TO DISMISS
SECOND AMENDED COMPLAINT

v.

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CITY OF SAN FRANCISCO,

United States District Court
Northern District of California

Re: Dkt. No. 54

Defendant.

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Case No. 17-cv-06534-JD

This order resolves defendants’ motion to dismiss plaintiffs’ second amended complaint

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under Federal Rule of Civil Procedure 12(b)(6), or in the alternative for a more definite statement

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under Federal Rule of Civil Procedure 12(e). Dkt. No. 54.

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DISCUSSION

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The parties’ familiarity with the facts and record are assumed. The Court orders as

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follows:
Scope of Plaintiffs’ First Cause of Action

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1.

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The Court dismissed plaintiffs’ second and third causes of action, and noted that “[t]his

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leaves only plaintiffs’ first claim, for a violation of 42 U.S.C. § 1983 and § 1988, on the basis that

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defendants ‘deprived plaintiffs of the[ir] constitutional rights’ under the Fourteenth Amendment to

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the United States Constitution ‘in that the defendants . . . jointly and severally deprived plaintiffs

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of their property without due process of law and failed to provide equal protection of the law.’”

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Dkt. No. 49 at 1.

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Plaintiffs’ second amended complaint (“SAC”) omits the dismissed claims but plaintiffs’

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allegations for their remaining first claim are now inexplicably vague, asserting only that

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defendants “have deprived plaintiffs of their constitutional rights.” Dkt. No. 53 ¶ 56. Defendants

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understandably complain that plaintiffs’ SAC now “does not identify any part of the Constitution.”

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Dkt. No. 54 at 5.

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On the basis of the Court’s prior order as well as plaintiffs’ representation that the SAC

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“adopts” the assertions made in the first amended complaint (“FAC”), Dkt. No. 56 at 2, the Court

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construes plaintiffs’ first cause of action in the SAC as alleging the same legal violation described

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in plaintiffs’ first cause of action in the FAC, i.e., a violation of 42 U.S.C. § 1983 and § 1988

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based on plaintiffs’ constitutional rights under the Fourteenth Amendment. To the extent

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plaintiffs are now trying to invoke their First Amendment rights as an additional basis for the

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claim, Dkt. No. 56 at 2, that is a change that is neither evident from the SAC nor permitted by the
Court. See Dkt. No. 49 at 5 (“Plaintiffs may not add any new claims or defendants without

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United States District Court
Northern District of California

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express leave of Court.”). Consequently, plaintiffs’ first claim in the SAC is limited to the

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confines of that claim as alleged in the FAC.

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2.

Monell Claim Against City and County of San Francisco

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The Court dismissed plaintiffs’ claims against the City and County of San Francisco

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because plaintiffs’ allegations did not sufficiently allege an official policy, practice or custom

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under Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Dkt. No. 49 at 4-5.

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Plaintiffs’ allegations are virtually unchanged, and they remain conclusory and deficient.

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See, e.g., Dkt. No. 53 ¶ 13 (“The club’s license was and is at risk because of Lazar’s racist crusade

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and the de facto sanctioning and endorsement of those efforts by two SFPD Chiefs of Police, by

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other leadership of the SFPD, and by the mayor of San Francisco.”). Plaintiffs’ claims against the

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City and County of San Francisco are consequently dismissed with prejudice.

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3.

Statute of Limitations

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The prior order observed that the parties appeared to “agree that ‘acts falling outside of the

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[two-year] limitations period are time barred,’” and plaintiffs were therefore directed to focus, in

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any amendment of the complaint, on acts by defendants that occurred during the limitations

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period, i.e., after November 9, 2015. Dkt. No. 49 at 3-5 (quoting RK Ventures, Inc. v. City of

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Seattle, 307 F.3d 1045, 1050 (9th Cir. 2002)).

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2

Plaintiffs have not followed the Court’s directive in their allegations in the SAC. They do

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assert, however, in their brief opposing defendants’ motion to dismiss, that numerous acts by the

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defendants took place “through several months of 2019,” “continued long after the initial filing

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date (November 9, 2017),” and “continued during the period.” Dkt. No. 56 at 3-4.

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On this record, the Court dismisses the SAC, but plaintiffs will have an additional

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opportunity to amend by April 3, 2020. If this deadline is not feasible in light of the public health

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situation, the parties may agree on a new date by joint stipulation filed with the Court. If the

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parties cannot agree, plaintiffs may ask the Court to extend the deadline.
Any further amended complaint must clearly identify and expressly allege the acts by

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defendants that occurred during the limitations period, i.e., after November 9, 2015. The City and

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United States District Court
Northern District of California

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County of San Francisco must be removed as a defendant. The legal basis for the first claim for

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relief should be made consistent with the allegations in the FAC. To the extent plaintiffs wish to

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expand those bases, they must file a properly noticed motion seeking the Court’s leave.

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Otherwise, the default rule remains that new claims or defendants may not be added without

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express leave of Court. Plaintiffs are advised that this is likely to be their final opportunity to

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amend.

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IT IS SO ORDERED.
Dated: March 19, 2020

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JAMES DONATO
United States District Judge

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