Saint Onge Orchids, LLC v. San Diego, County of et al
Filing
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ORDER Granting Defendant's 4 Motion for Judgment on the Pleadings. Plaintiff has 30 days from the day of this order to file a First Amended Complaint. Signed by Judge Gonzalo P. Curiel on 5/30/17. (All non-registered users served via U.S. Mail Service)(dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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SAINT ONGE ORCHIDS, LLC,
Case No.: 3:17-cv-00638-GPC-JLB
Plaintiff,
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ORDER:
v.
COUNTY OF SAN DIEGO,
GRANTING DEFENDANT’S
MOTION FOR JUDGMENT ON
THE PLEADINGS
Defendant.
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[Dkt. No. 4]
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On March 29, 2017, Plaintiff Saint Onge Orchids, LLC (“St. Onge”) filed a
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complaint against Defendant County of San Diego for destroying St. Onge’s orchid
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plants in order to control a fungus. Dkt. No. 1-2.1 The complaint asserts claims of
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negligence under Cal. Gov. Code § 815.2 and Fourteenth Amendment violations under
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42 U.S.C. § 1983. Dkt. No. 1-2. Defendant moved for judgment on the pleadings on
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April 5, 2017, arguing failure to exhaust and state a claim on which relief can be granted.
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Dkt. No. 4. The motion has been fully briefed.
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The complaint was originally filed in the Superior Court of the State of California for the County of
San Diego. Dkt. No. 1-2. Defendant removed the civil action from state court on February 10, 2017
pursuant to 28 U.S.C. § 1441(a). Dkt. No. 1.
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For the following reasons, the Court GRANTS Defendant’s motion for failure to
state a claim under 42 U.S.C. § 1983 with leave to amend.
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BACKGROUND
St. Onge operates two Cymbidium Orchid nurseries in San Marcos, California.
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Compl. ¶ 10. In July 2015, the County of San Diego conducted inspections of Plaintiff’s
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nurseries and took samples of their orchids. Id. ¶ 11. The subsequent testing of St.
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Onge’s orchids revealed that plants in both nurseries contained the fungal infection
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Colletotrichum Cymbidiicola (“C. Cymbidiicola”). Id.
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In response to the infection, the County’s Department of Agriculture, Weights,
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and Measures (“Department”) instructed St. Onge to fumigate the plants held in the
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nurseries. The Department directed Plaintiff to spray the plants with “Pageant” fungicide
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in week one, “Torque” fungicide in week 2, “Pageant” fungicide again in week 3, and
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“Torque” again in week 4. Id. ¶ 12. When re-inspections showed that the spraying had
not eliminated the fungus, the Department ordered that the entire collection of plants at
both locations be destroyed. Id. ¶¶ 13-14. An estimated 5,000 plants were affected by
this order and their cumulative lost value was $500,000. Id.
Plaintiff asserts that other nurseries in the County have similarly failed to eliminate
C. Cymbidiicola using the “Pageant” and “Torque” rotation prescribed by the
Department. Id. ¶ 15. At least one grower, however, was able to eliminate the infection
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with a third fungicide. Id. Yet despite knowing that this alternative fungicide had
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successfully eliminated C. Cymbidiicola at another nursery, the Department did not
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inform Plaintiff of the treatment’s existence before taking action against St. Onge’s
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orchids. Id.
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From 2014 to 2016, a number of other Cymbidium orchid nurseries in San Diego
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County became infected with C. Cymbidiicola. Compl. ¶ 16, 38. The complaint alleges,
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however, that the Department responded differently to the fungal infections at these
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similarly situated nurseries because it only ordered that the infected plants be destroyed,
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not the entire collection of orchids. Id.
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The complaint contains four causes of action. The first three assert different
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theories of state law negligence. The fourth cause of action, and sole federal cause of
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action, asserts that Defendant is liable under 42 U.S.C. § 1983 for discriminating against
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Plaintiff in violation of its Fourteenth Amendment Equal Protection and Substantive Due
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Process rights. Id. ¶¶ 38-39.
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LEGAL STANDARD
Under Federal Rule of Civil Procedure (“Rule”) 12(c), “[a]fter the pleadings are
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closed but within such time as not to delay the trial, any party may move for judgment on
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the pleadings.” Fed. R. Civ. P. 12(c).
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The principal difference between motions filed pursuant to Rule 12(b) and Rule
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12(c) is the time of filing — a motion for judgment on the pleadings is typically brought
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after an answer has been filed whereas a motion to dismiss is typically brought before an
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answer has been filed. See Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th
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Cir. 1989). Because the motions are functionally identical, the same standard of review
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applicable to a Rule 12(b) motion applies to its Rule 12(c) analog. Id.; see also Chavez v.
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United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“Analysis under Rule 12(c) is
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‘substantially identical’ to analysis under Rule 12(b)(6), because, under both rules, a
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court must determine whether the facts alleged in the complaint, taken as true, entitle the
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plaintiff to a legal remedy.”) (internal quotations and citation omitted). Thus, when
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deciding a Rule 12(c) motion, “the allegations of the non-moving party must be accepted
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as true, while the allegations of the moving party which have been denied are assumed to
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be false.” Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550
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(9th Cir. 1989) (citing Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir.
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1984); Austad v. United States, 386 F.2d 147, 149 (9th Cir. 1967)).
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The Court construes all material allegations in the light most favorable to the non-
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moving party. Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 1043, 1046 (9th Cir.
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2006). “Judgment on the pleadings is proper when the moving party clearly establishes
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on the face of the pleadings that no material issue of fact remains to be resolved and that
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it is entitled to judgment as a matter of law.” Hal Roach Studios, 896 F.2d at 1550. As
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such, judgment on the pleadings in favor of a defendant is not appropriate if the
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complaint raises issues of fact that, if proved, would support the plaintiff’s legal theory.
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Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist
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Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989).
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DISCUSSION
I.
Municipal Liability under 42 U.S.C. § 1983
Plaintiff asserts that Defendant is liable under 42 U.S.C. § 1983 for having
discriminated against St. Onge intentionally and without any rational basis, in violation of
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its Fourteenth Amendment rights to Equal Protection and Substantive Due Process.
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Plaintiff’s theory of liability rests on the fact that Defendant ordered that all of St. Onge’s
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orchid inventory be destroyed, rather than only directing that the infected plants be
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destroyed, as was the case with other orchid nurseries in San Diego County.
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To state a § 1983 claim against a municipality, a plaintiff must allege “(1) that [the
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plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that the
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municipality had a policy; (3) that this policy ‘amounts to deliberate indifference’ to the
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plaintiff's constitutional right; and, (4) that the policy is the ‘moving force behind the
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constitutional violation.’” Plumeau v. Sch. Dist. No. 40, 130 F.3d 432, 438 (9th Cir.
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1997) (citing Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir.
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1992)).
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The purpose of this rule is to ensure that municipalities, who are not in any way at
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fault, are not held liable solely for employing a tortfeasor. See Monell v. Dep’t of Soc.
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Servs. of the City of N.Y., 436 U.S. 658, 691 (1978); Los Angeles Cnty., California v.
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Humphries, 562 U.S. 29, 35 (2010). Rather, a municipality may only be held liable for
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“its own violations of federal law,” which arise when “the action that is alleged to be
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unconstitutional implements or executes a policy statement, ordinance, regulation or
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decision officially adopted and promulgated . . . [or amount to a] deprivation[ ] pursuant
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to governmental ‘custom’ even though such a custom has not received formal
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approval . . . .” Humphries, 562 U.S. at 36. Stated differently, a municipality may not
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be held liable solely for the acts of others, but may be held liable “when execution of a
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government’s policy or custom . . . inflicts the injury.” Id. (emphasis in original).
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“In this circuit, a claim of municipal liability under § 1983 is sufficient to
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withstand a motion to dismiss even if the claim is based on nothing more than a bare
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allegation that the individual officers’ conduct conformed to official policy, custom, or
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practice.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)
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(internal quotations omitted). There must, however, be enough factual allegations to
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establish what the relevant policy is, rather than merely stating that a policy caused the
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violation in question. See Hernandez, 666 F.3d at 637 (finding failure to state claim
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because complaint only asserted that defendant maintained a policy, custom, or practice
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of knowingly permitting the violation, but did not provide additional facts regarding the
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nature of the policy, custom, or practice); Dougherty v. City of Covina, 654 F.3d 892,
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900-01 (9th Cir. 2011) (finding failure to state claim because complaint alleged a policy
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or custom caused the violation without providing supporting factual allegations); Ass’n
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for Los Angeles Deputy Sheriffs v. Cnty. of Los Angeles, 648 F.3d 986, 993 (9th Cir.
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2011) (finding § 1983 Monell claim was adequate because it specifically explained that
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the policy in question denied “post-suspension hearings to employees resigned after
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suspension”).
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Plaintiff’s complaint has failed to plead any factual allegations establishing that
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there was a San Diego County municipal policy or custom that violated its Fourteenth
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Amendment rights. See Plumeau, 130 F.3d at 438. Plaintiff alleges that the relevant
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“policy” was that Defendant personnel, exercising regulatory authority, treated St. Onge
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differently than a number of other orchid growers. Dkt. No. 9 at 8. This assertion,
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however, does not meet the broad definition of a “policy” as stated in Humphries,
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Hernandez or as articulated in Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.
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1992), the authority cited by Plaintiff.
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In order to survive a motion to dismiss, a plaintiff must plead facts demonstrating
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that the challenged action was carried out pursuant to a municipal “policy or custom” and
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that it was not the result of a Government’s employees tort. Humphries, 562 U.S. at 35.
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The complaint, however, singles out “Defendant personnel” as the perpetrator of the
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constitutional violation and does not allege that the officials acted (1) pursuant to a
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specific and identified municipal “policy or custom,” that (2) they otherwise had final
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policy-making authority, or that (3) an official with final policy-making authority ratified
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a subordinate’s unconstitutional decision or action. See Gillette, 979 F.2d at 1346-47
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(explaining that municipal liability under § 1983 may be demonstrating in one of three
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ways).
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The insufficiency of Plaintiff’s complaint is reinforced by the Ninth Circuit’s
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decision in Hernandez. There, the plaintiff asserted no more than that all of the alleged
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constitutional violations were carried out pursuant to the municipal defendant’s
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regulations, and that the defendant had a policy of knowingly permitting the occurrence
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of these violations. Hernandez, 666 F.3d at 637. The Hernandez court, however, found
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that such allegations were not enough to satisfy Monell’s pleading standards because the
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defendant did not have fair notice of the claim being brought or the policy being
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challenged by the plaintiff’s civil action. Id.
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Here, too, Plaintiff’s complaint only states that Defendant’s acts and omissions
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discriminated against it and that the discrimination was intentional or occasioned by
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deliberate indifference. The complaint does not, however, provide the Court with any
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factual allegations showing what specific municipal policy led to the acts and omissions
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complained of within the complaint. To show that the “Defendant personnel” were not
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tortfeasors acting on their own initiative, but individuals acting pursuant to “policy or
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custom,” the complaint needs to identify a municipal custom or policy that caused those
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officials to treat St. Onge differently than the other growers. Absent such factual
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allegations, Plaintiff has failed to state a claim for municipal Monell liability under
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§ 1983.
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For these reasons and because Plaintiff has failed to identify any theory of how the
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challenged Fourteenth Amendment violation arose under a municipal “policy or custom,”
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the Court GRANTS Defendant’s motion for judgment on the pleadings as to Plaintiff’s
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§ 1983 claim.
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II.
Leave to Amend
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In the opposition to Defendant’s motion for judgment on the pleadings, Plaintiff
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requests leave to amend its pleading, asserting that Defendant has not alleged that they
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would be prejudiced in any way. Dkt. No. 9 at 8-9. Defendant does not oppose this
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request. Dkt. No. 10 at 14.
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Rule 15(a)(2) provides that a “court should freely give leave [to amend] when
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justice so requires.” Fed. R. Civ. P. 15(a)(2). Courts typically look at four factors when
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determining whether it should grant leave to amend: namely, bad faith, undue delay,
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prejudice to the opposing party, and futility of amendment. See Ditto v. McCurdy, 510
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F.3d 1070, 1079 (9th Cir. 2007). Generally speaking, denying leave to amend is
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improper unless the complaint cannot be saved by an amendment. See Miller v.
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Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004).
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For § 1983 claims against municipalities, leave to amend is generally granted when
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dismissal involved the failure to properly assert all of the necessary elements of a
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municipal liability claim. See Hernandez, 666 F.3d at 637 (finding that district court
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abused its discretion in not allowing leave to amend failure to allege a policy or custom).
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Accordingly and because the complaint, here, would be saved by being amended to
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include a municipal “policy or custom,” the Court concludes that leave to amend would
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not be futile.
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As such, the Court GRANTS Plaintiff leave to amend its 42 U.S.C. § 1983 claim.
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Because the Court has dismissed Plaintiff’s sole federal cause of action, the Court need
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not reach Plaintiff’s remaining state law claims. If and when Plaintiff chooses to amend
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its federal cause of action, the Court will revisit the status of Plaintiff’s state law claims.
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Plaintiff has 30 days from the day of this order to file a First Amended Complaint.
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IT IS SO ORDERED.
Dated: May 30, 2017
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