San Diego Puppy, Inc. et al v. San Diego, City of et al
Filing
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ORDER Granting 60 61 Motions to Dismiss. Signed by Judge Barry Ted Moskowitz on 6/12/2015. (All non-registered users served via U.S. Mail Service)(rlu)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 13-cv-2783-BTM-DHB
SAN DIEGO PUPPY, INC., a
California corporation; DAVID
SALINAS and VERONICA
SALINAS, husband and wife,
ORDER GRANTING MOTION
TO DISMISS
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Plaintiffs,
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v.
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SAN DIEGO ANIMAL DEFENSE
TEAM, business entity of unknown
form; ANIMAL PROTECTION
AND RESCUE LEAGUE, a
California 501(c)(3) corporation;
COMPANION ANIMAL
PROTECTION SOCIETY,
Delaware non-profit corporation;
BRYAN PEASE, a California
resident,
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Defendants.
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Defendants have filed motions to dismiss Plaintiffs’ First Amended
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Complaint (“FAC”). Plaintiffs also filed what the Court considers as a motion
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for leave to amend the First Amended Complaint and a proposed Second
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Amended Complaint (“SAC”).
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Defendant’s motion to dismiss is GRANTED and Plaintiffs’ motion for leave
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to amend the First Amended Complaint is DENIED.
For the reasons discussed below, each
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I.
BACKGROUND
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On November 25, 2013, Plaintiffs filed their original complaint. On
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September 11, 2014, this Court gave Plaintiffs leave to file an amended
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complaint only as to Count VI, which alleged a violation of 42 U.S.C. § 1985.
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Order at 14-18. On September 23, 2014, Plaintiffs filed a two-page First
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Amended Complaint as to Count VI, alleging that Defendants had accused
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Plaintiff David Salinas of being “a criminal, a sleazy character engaged in
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acts of animal cruelty, and an animal abuser.” FAC at 2. On October 14,
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2014, Defendants Bryan Pease (“Pease”), the Animal Protection and Rescue
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League (“APRL”), and the Companion Animal Protection Society (“CAPS”)
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each filed a motion to dismiss Plaintiffs’ First Amended Complaint.
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On November 6, 2014, Plaintiffs filed what the Court considers as a
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motion for leave to amend their First Amended Complaint, and a proposed
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Second Amended Complaint. In addition to the allegations already set forth
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in their original complaint and their First Amended Complaint, Plaintiffs allege
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in their Second Amended Complaint that Defendants formed a secret
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Facebook group to plan activities against Plaintiffs. SAC at 9.
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II.
STANDARD
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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
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should be granted only where a plaintiff’s complaint lacks a “cognizable legal
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theory” or sufficient facts to support a cognizable legal theory. Balistreri v.
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Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a
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motion to dismiss, the allegations of material fact in plaintiff’s complaint are
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taken as true and construed in the light most favorable to the plaintiff. See
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Parks Sch. of Bus., Inc., v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
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Although detailed factual allegations are not required, factual allegations
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“must be enough to raise a right to relief above the speculative level.” Bell
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Atlantic v. Twombly, 550 U.S. 544, 555 (2007). “A plaintiff’s obligation to
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prove the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels
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and conclusions, and a formulaic recitation of the elements of a cause of
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action will not do.” Id. “[W]here the well-pleaded facts do not permit the court
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to infer more than the mere possibility of misconduct, the complaint has
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alleged – but it has not show[n] that the pleader is entitled to relief.” Ashcroft
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v. Iqbal, 565 U.S. 662, 679 (2009) (internal quotation marks omitted). Only
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a complaint that states a plausible claim for relief will survive a motion to
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dismiss. Id.
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III.
DISCUSSION
Defendants move to dismiss Plaintiffs’ First Amended Complaint for
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failure to state a claim. Having taken into consideration Plaintiffs’ First
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Amended Complaint and proposed Second Amended Complaint, the Court
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agrees that dismissal is warranted.
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To state a cause of action under 42 U.S.C. § 1985(3), the plaintiff must
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allege four elements: (1) a conspiracy; (2) for the purpose of depriving, either
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directly or indirectly, any person or class of persons of the equal protection
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of the laws, or of equal privileges and immunities under the laws; and (3) an
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act in furtherance of the conspiracy; (4) whereby a person is either injured in
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his person or property or deprived of any right or privilege of a citizen of the
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United States. United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S.
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825, 828-829 (1983). In order to satisfy the second element, the conspiracy
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must also be motivated by “some racial, or perhaps otherwise class-based,
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invidiously discriminatory animus behind the conspirators’ action.” Id. at 829
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(quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
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Plaintiffs allege that Defendants conspired to force the closure of
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Plaintiffs’ business, which sells pure-bred puppies, by supporting the
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passage of an Ordinance (San Diego Health & Safety Municipal Code §
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42.0706) that prohibits the sale of puppies not obtained from an approved
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source (e.g., a California non-profit rescue or shelter). SAC at 2-3. Other
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than a vague reference to a “playbook” captioned “A Guide to Using Local
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Ordinances to Combat Puppy Mills,” and a “secret group” on Facebook that
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was created to organize protests at pet stores, Plaintiffs do not provide
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sufficient facts to describe how exactly Defendants carried out their
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conspiracy to try to shut down Plaintiffs’ business. SAC at 3, 9. More
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importantly, Plaintiffs fail to describe how they were deprived of a federally
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protected right. See Griffin, 403 U.S. at 102 (conspiracy must aim at a
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deprivation of the equal enjoyment of rights secured by the law to all).
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Plaintiffs allege that Defendants’ conspiracy was “racially motivated”
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towards Mexican-Americans and refer to a photo of people wearing masks
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in the likeness of Plaintiff David Salinas with signs that state “Sleazy Salinas”
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and “I Sell Animal Cruelty.” SAC at 7. Plaintiffs fail to show how the
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unidentified people in the photo are related to any of the Defendants.
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Regardless, the Court is not convinced that referring to Plaintiff David Salinas
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as “sleazy” demonstrates an invidious racial animus against Mexican-
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Americans. Plaintiffs also allege that Defendants’ conspiracy was motivated
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to gain a “market advantage for non-profits [that] sell puppies.” SAC at 3.
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But 42 U.S.C. § 1985(3) does not concern conspiracies motivated by
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“economic or commercial animus.” United Bhd. of Carpenters & Joiners of
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Am., 463 U.S. at 837-38.
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For the reasons discussed above, the Court finds that Plaintiffs fail to
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state a claim in their First Amended Complaint and their proposed Second
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Amended Complaint.
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IV.
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CONCLUSION
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Defendants’ motions to dismiss the First Amended Complaint are
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GRANTED. Plaintiffs’ First Amended Complaint is DISMISSED for failure to
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state a claim.
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Complaint is DENIED as their proposed Second Amended Complaint is
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futile. Plaintiffs have essentially had three attempts to plead the same claim
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and there is no indication that Plaintiffs have other facts to allege to cure the
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deficiencies discussed above. Therefore, the Court denies Plaintiffs leave
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to amend their complaint for a fourth time. See Carvalho v. Equifax Info.
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Servs., LLC, 629 F.3d 876, 892-893 (9th Cir. 2010) (district court may
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exercise its discretion to deny leave to amend due to “repeated failure to cure
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deficiencies by amendments previously allowed” (citing Foman v. Davis, 371
Plaintiffs’ motion for leave to amend the First Amended
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U.S. 178, 182 (1962))). The Court shall enter a final judgment of dismissal
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as to all Defendants.1
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IT IS SO ORDERED.
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Dated: June 12, 2015
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It is unclear to the Court as to whether or not Plaintiffs intended to include San
Diego Humane Society (“SDHS”) as a Defendant. Plaintiffs include SDHS in the caption
of the First Amended Complaint and name them in the proposed Second Amended
Complaint. But Plaintiffs voluntarily dismissed SDHS on January 17, 2014. Doc. No. 27.
In any case, the final judgment of dismissal will apply to SDHS as well.
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