Pacific Shores Property Owners Association et al v. Federal Aviation Administration et al

Filing 37

ORDER by Judge Hamilton granting 21 Motion to Dismiss (pjhlc1, COURT STAFF) (Filed on 11/21/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PACIFIC SHORES PROPERTY
OWNERS ASSOCIATION, et al.,

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Plaintiffs,

No. C 13-2827 PJH

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v.
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For the Northern District of California

United States District Court

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FEDERAL AVIATION
ADMINISTRATION, et al.,

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ORDER GRANTING MOTION
TO DISMISS

Defendants.
_______________________________/

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The motion of defendant Federal Aviation Administration ("FAA") for an order

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dismissing the claim asserted against it came on for hearing before this court on November

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20, 2013. Plaintiffs appeared by their counsel Kelly Smith, and the FAA appeared by its

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counsel Michael Pyle. Having read the parties' papers and carefully considered their

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arguments and the relevant legal authority, the court hereby GRANTS the motion as

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follows for the reasons stated at the hearing.

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The dismissal is with leave to amend. Plaintiffs' counsel confirmed at the hearing

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that the sole cause of action asserted against the FAA is a claim under 42 U.S.C. § 4655,

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which is part of the Uniform Relocation Assistance and Real Property Act, 42 U.S.C.

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§ 4600, et seq.

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Section 4655 provides that "notwithstanding any other law," the federal agency
head shall not grant any approvals or funding unless
receiving satisfactory assurances from such acquiring agency that: (1) in
acquiring real property it will be guided, to the greatest extent practicable
under State law, by the land acquisition policies in section 4651 of this title
and the provisions of section 4652 of this title, and (2) property owners will be
paid or reimbursed for necessary expenses as specified in section 4653 and
4654 of this title.

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42 U.S.C. § 4655. In the amended complaint, plaintiffs must allege facts sufficient to

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support the elements of § 4655, such that they can state a plausible claim under the

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statute.

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At the hearing, counsel for the FAA stated that he had "sent counsel assurances last

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week," and that plaintiffs could thus not state a claim under § 4655. Counsel for plaintiffs

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responded that he had not received any assurances from counsel for the FAA. The court

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reminds counsel for plaintiffs that in amending the complaint, he must be cognizant of his

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responsibilities under Federal Rule of Civil Procedure 11(b), in particular as to whether "the

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factual contentions have evidentiary support . . . ."
The amended complaint shall be filed no later than December 18, 2013, and

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For the Northern District of California

United States District Court

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defendants' response shall be filed no later than 21 days thereafter. The amended

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complaint shall add no new parties or causes of action unless plaintiffs first obtain leave of

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court or the agreement of the defendants.

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IT IS SO ORDERED.

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Dated: November 21, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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