Emmert v. Clackamas County
Filing
26
OPINION AND ORDER: Defendant's Motion to Dismiss for Failure to State 9 is GRANTED. Plaintiff is granted 30 days to replead in accordance with this Opinion and Order. Signed on 6/24/14 by Magistrate Judge Dennis J. Hubel. (kb)
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UNITED STATES DISTRICT COURT
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DISTRICT OF OREGON
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PORTLAND DIVISION
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TERRY W. EMMERT sometimes doing
business under the name EMMERT
DEVELOPMENT COMPANY,
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Plaintiff,
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v.
CLACKAMAS COUNTY,
Defendant.
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Hollis K. McMilan
HOLLIS K. MCMILAN, P.C.
805 S.W. Broadway, Suite 1900
Portland, OR 97205
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Kenneth C. Bauman
Email: kencbauman@comcast.net
1406 S.W. Upland Dr.
Portland, OR 97221
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Attorneys for Plaintiff
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Stephen L. Madkour
Alexander Gordon
OFFICE OF CLACKAMAS COUNTY COUNSEL
2051 Kaen Road
Oregon City, OR 97045-1819
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Attorneys for Defendant
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Page 1 - OPINION AND ORDER
No. 3:13-cv-01317-HU
OPINION AND
ORDER
1
HUBEL, Magistrate Judge:
2
Before the Court is Defendant Clackamas County’s motion to
3
dismiss Plaintiff Terry Emmert’s (“Plaintiff”) complaint without
4
prejudice and with leave to amend, pursuant to Federal Rules of
5
Civil Procedure (“Rule”) 8(a)(2), 9(b) and 12(b)(6).
6
argument and in his response brief, Plaintiff essentially conceded
7
that his complaint fails to state a claim for fraud in light of the
8
requirements imposed by Rule 9(b).1
9
its analysis to Plaintiff’s remaining inverse condemnation and
At oral
The Court will therefore limit
10
equal protection claims.
11
motion (Docket No. 9) to dismiss is granted.
12
For the reasons that follow, Defendant’s
I. FACTS AND PROCEDURAL HISTORY
13
The present action concerns thirteen tracts of land located
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within Clackamas County that were or are owned by Plaintiff in his
15
individual capacity or as the sole member of Emmert Development
16
Company, an Oregon limited liability company. Those tracts of land
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are generally referred to by the parties as: (1) the Hubbard Road
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Properties; (2) the 142nd Avenue East Properties; (3) the 142nd
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Avenue West Properties; (4) the Morning Way Properties; (5) the Con
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Battin Road Property; (6) the Sunnyside Road Property; (7) the
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13171 Property; (8) the 15576 Property; (9) the 14785 Property;
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(10) the Clear Creek Estates Property; (11) the Emmert View Court
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25
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1
For example, at page two of his response brief, Plaintiff
states: “The Court can spare much time and aggravation sorting
through the [Defendant]’s blunderbuss motion knowing that
[Plaintiff] is prepared to file an amended complaint that repleads
his allegations where needed, particularly those related to the
fraud claim.”
(Pl.’s Resp. Br. at 2.)
Similarly, at page
nineteen, Plaintiff reiterates that he “will replead the fraud
claim with greater specificity [as required under Rule] 9(b).”
(Pl.’s Resp. Br. at 19.)
Page 2 - OPINION AND ORDER
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Property; (12) the 11791 Property; and (13) the Southeast 114th
2
Properties.
3
Plaintiff’s complaint alleges the following facts, which the
4
Court accepts as true.2
5
complaint, Plaintiff alleges that Defendant broke a verbal promise
6
to purchase the Hubbard Road Properties and the 142nd Avenue East
7
Properties, and then proceeded to discourage buyers from purchasing
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the 142nd Avenue East Properties and threatened to eliminate
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certain entries and/or attempt to thwart historic uses on two of
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the Hubbard Road Properties——one of which sold in November 2009.3
11
In paragraphs sixteen through nineteen of the complaint,
12
Plaintiff alleges that a potential buyer rescinded an offer to
13
purchase the 142nd Avenue West Properties in June 2008, when it
14
became apparent that a zone change approved by Defendant in July
15
2007
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paragraphs twenty through twenty-three of the complaint, Plaintiff
17
alleges that Defendant broke a verbal promise to purchase the
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Morning Way Properties sometime around November 2008, causing him
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to lose a sale.
20
would
In
make
In paragraphs ten through fifteen of the
development
paragraphs
of
twenty-four
the
land
through
“impossible.”
twenty-seven
of
In
the
21
complaint, Plaintiff alleges that a light rail project caused a
22
piece of land formerly owned by Defendant to revert to the State of
23
Oregon at some unspecified time, and as a result, a buyer rescinded
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his offer to purchase the Con Battin Road Property on January 28,
25
26
2
It must be noted that the facts recited below reflect the
lack of specificity in Plaintiff’s complaint.
27
3
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The Hubbard Road
unspecified time in 2003.
Page 3 - OPINION AND ORDER
Properties
were
purchased
at
some
1
2010. In paragraphs twenty-eight through twenty-nine, Plaintiff
2
alleges that he has been unable to obtain access to the Sunnyside
3
Road Property after a road widening project, which in turn has
4
greatly impaired, if not eliminated, Plaintiff’s ability to develop
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or sell the property.
6
In paragraphs thirty through thirty-two of the complaint,
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Plaintiff alleges that Defendant broke a verbal promise to purchase
8
the 13171 Property, causing Plaintiff to lose to an unspecified
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purchaser at an unspecified time.
In paragraphs thirty-three
10
through thirty-five of the complaint, Plaintiff generally alleges
11
that Defendant broke a verbal promise to purchase the 15576
12
Property.
13
In paragraph thirty-six of the complaint, Plaintiff generally
14
alleges that potential buyers were given false information by
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Defendant “regarding the lots making up” the 14785 Property, and an
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unnamed individual who purchased a lot was given unspecified false
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information
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Plaintiff to refund her purchase money.
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of the complaint, Plaintiff alleges that a buyer rescinded his
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offer to purchase a home at the Clear Creek Estates Property after
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Defendant repeatedly provided false information regarding the
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suitability of the septic system.
that
delayed
construction
and
apparently
caused
In paragraph thirty-seven
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In paragraphs thirty-eight through forty of the complaint,
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Plaintiff alleges that an unnamed developer refused to purchase the
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remaining lots at the Emmert View Court Property because Defendant
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“caused the developer so many problems on the first four lots on
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which it wanted to build.”
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has unsuccessfully tried to obtain a building permit from Defendant
Page 4 - OPINION AND ORDER
Plaintiff also alleges that a couple
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after purchasing a lot in 2006. In paragraphs forty-one through
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forty-two of the complaint, Plaintiff alleges that he lost a sale
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after Defendant misrepresented the boundary lines of the 11791
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Property and that Defendant has refused to allow Plaintiff to
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develop or sell the property prior to competing a “comprehensive
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plan.”
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In paragraphs forty-three through forty-four of the complaint,
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Plaintiff alleges that Defendant agreed to allow him to use the
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Southeast 114th Properties for storage purposes and then proceeded
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to cite him for “illegal storage.”
In the process of challenging
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the citation, presumably at some administrative level, Plaintiff
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alleges that Defendant’s employees lied about whether Plaintiff had
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received permission to use the Southeast 114th Properties for
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storage purposes.
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Based on the foregoing events, Plaintiff filed the present
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action against Defendant on July 31, 2013, alleging a claim for
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inverse
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Constitutions, a claim under 42 U.S.C. § 1983 for violation of
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Plaintiff’s constitutional right to equal protection under the
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Fourteenth Amendment, and a claim for common law fraud.
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February 19, 2014, the Court heard argument on Defendant’s pending
22
motion to dismiss. On April 21, 2014, before this Court issued its
23
opinion, Plaintiff filed an unopposed motion to correct the record,
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or alternatively, to make roughly 100 pages of exhibits part of the
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record at the motion to dismiss stage.
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22, 2014, the Court issued a minute order granting Plaintiff’s
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unopposed motion and clarifying that the aforementioned exhibits
condemnation
under
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Page 5 - OPINION AND ORDER
the
Oregon
and
United
States
On
The following day, April
1
had
been
“received
and
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Defendant’s Motion to Dismiss.”4
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4
admitted
as
part
of
the
record
on
II. LEGAL STANDARD
A.
Rule 8(a)(2)
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Under Rule 8(a)(2), a pleading must contain “a short and plain
6
statement of the claim showing that the pleader is entitled to
7
relief.”
8
notice pleading standard requires that the pleader “give the
9
defendant fair notice of what the claim . . . is and the grounds
FED. R. CIV. P. 8(a)(2).
Put another way, the federal
10
upon which it rests.”
11
2:13–cv–018342013 WL 6564318, at *2 (E.D. Cal. Dec. 13, 2013)
12
(citation omitted).
13
B.
14
Shannon v. County of Sacramento, No.
Rule 12(b)(6)
A court may dismiss a complaint for failure to state a claim
15
upon which relief can be granted pursuant to Rule 12(b)(6).
In
16
considering a Rule 12(b)(6) motion to dismiss, the court must
17
accept all of the claimant’s material factual allegations as true
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and view all facts in the light most favorable to the claimant.
19
Reynolds v. Giusto, No. 08-CV-6261, 2009 WL 2523727, at *1 (D. Or.
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Aug. 18, 2009).
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standard under Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly, 550
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U.S. 544 (2007).
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sufficient in the pleadings to give proper notice of the claim and
The Supreme Court addressed the proper pleading
Twombly established the need to include facts
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“To the extent that [any] factual deficiencies in
Plaintiff’s claims are cured by facts revealed in his exhibits but
not in the body of his complaint, Plaintiff is advised that he
should file an amended complaint that specifically alleges those
facts instead of relying exhibits to present those facts.” Eaves
v. Castro, No. 1:09–cv–01647–SKO, 2010 WL 2817609, at *4 (E.D. Cal.
July 16, 2010).
Page 6 - OPINION AND ORDER
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its basis: “While a complaint attacked [under] Rule 12(b)(6) . . .
2
does
3
obligation to provide the grounds of his entitlement to relief
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requires
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recitation of the elements of a cause of action will not do.”
6
at 555 (brackets omitted).
not
need
more
detailed
than
factual
labels
and
allegations,
conclusions,
a
and
plaintiff’s
a
formulaic
Id.
7
Since Twombly, the Supreme Court has clarified that the
8
pleading standard announced therein is generally applicable to
9
cases governed by the Rules, not only to those cases involving
10
antitrust allegations. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
11
1937, 1949 (2009).
12
guided by two specific principles.
13
accept as true all facts asserted in a pleading, it need not accept
14
as true any legal conclusion set forth in a pleading.
15
the complaint must set forth facts supporting a plausible claim for
16
relief and not merely a possible claim for relief.
17
instructed
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plausible claim for relief will . . . be a context-specific task
19
that
20
experience and common sense.” Iqbal, 129 S. Ct. at 1949-50 (citing
21
Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)).
22
concluded: “While legal conclusions can provide the framework of a
23
complaint, they must be supported by factual allegations.
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there are well-pleaded factual allegations, a court should assume
25
their veracity and then determine whether they plausibly give rise
26
to an entitlement to relief.”
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that
requires
The Iqbal court explained that Twombly was
“[d]etermining
the
reviewing
First, although the court must
whether
court
to
a
Id.
Id.
complaint
draw
on
its
Second,
The court
states
a
judicial
The court
When
Id. at 1950.
The Ninth Circuit further explained the Twombly-Iqbal standard
in Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009).
Page 7 - OPINION AND ORDER
The
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Moss court reaffirmed the Iqbal holding that a “claim has facial
2
plausibility when the plaintiff pleads factual content that allows
3
the court to draw the reasonable inference that the defendant is
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liable for the misconduct alleged.” Moss, 572 F.3d at 969 (quoting
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Iqbal, 129 S. Ct. at 1949).
6
stating: “In sum, for a complaint to survive a motion to dismiss,
7
the non-conclusory factual content, and reasonable inference from
8
that content must be plausibly suggestive of a claim entitling the
9
plaintiff to relief.”
Moss, 572 F.3d at 969.
10
11
12
The court in Moss concluded by
III. DISCUSSION
A.
Equal Protection
Plaintiff brings a claim against Defendant under § 1983 for
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violation of his constitutional right to equal protection.
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Fourteenth Amendment’s Equal Protection Clause provides that no
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state shall “deny to any person within its jurisdiction the equal
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protection of the laws.”
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alleges that Defendant, “in its regulatory decisions and its
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conspiracy to block [him] from developing his land, has singled him
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out for different treatment from other landowners in [Clackamas]
20
County.”
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proceeds under a “class of one” theory of equal protection.
U.S. Const. amend. XIV, § 1.
(Pl.’s Resp. Br. at 7.)
The
Plaintiff
In other words, Plaintiff
22
“The Supreme Court has recognized that ‘an equal protection
23
claim can in some circumstances be sustained even if the plaintiff
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has not alleged class-based discrimination, but instead claims that
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she has been irrationally singled out as a so-called ‘class of
26
one.’”
27
(citation omitted).
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plaintiff
Gerhart v. Lake County, 637 F.3d 1013 (9th Cir. 2011)
must
To state a plausible class-of-one claim, “a
allege
that
Page 8 - OPINION AND ORDER
(1)
the
defendant
treated
him
1
differently from others similarly situated, (2) the defendant did
2
so intentionally, and (3) there was no rational basis for the
3
difference in treatment.”
4
(3d Cir. 2013) (emphasis added); see also Village v. Willowbrook v.
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Olech, 528 U.S. 562, 564 (2000) (“Our cases have recognized
6
successful equal protection claims brought by a ‘class of one,’
7
where the plaintiff alleges that she has been intentionally treated
8
differently from others similarly situated and that there is no
9
rational basis for the difference in treatment.”).
Cooper v. Menges, 541 F. App’x 228, 233
10
In Scocca v. Smith, No. C–11–1318 EMC, 2012 WL 2375203 (N.D.
11
Cal. June 22, 2012), the district court expounded on the pleading
12
requirement in a class-of-one equal protection case, stating:
13
[w]here a plaintiff is making a class-of-one claim, the
essence of the claim is that only the plaintiff has been
discriminated against, and therefore the basis for the
differential treatment might well have been because the
plaintiff was unique; thus, there is a higher premium for
a plaintiff to identify how he or she is similarly
situated to others. As the Second Circuit noted in [a
2010 decision], class-of-one plaintiffs must show an
extremely high degree of similarity between themselves
and the persons to whom they compare themselves. Several
[other] courts have [also] indicated that there needs to
be specificity in a class-of-one case.
14
15
16
17
18
19
20
Id.
21
omitted).
22
23
24
25
26
27
28
at
*5
(internal
citations,
quotation
marks
and
brackets
In Perano v. Township of Tilden, 423 F. App’x 234 (3d Cir.
2011), for example, the Third Circuit stated:
[Plaintiff] has simply alleged that he was treated
differently from other similarly situated residential and
commercial developers. Without more specific factual
allegations as to the allegedly similarly situated
parties, he has not made plausible the conclusion that
those parties exist and that they are like him in all
relevant aspects. Accordingly, [Plaintiff] has failed to
state a[] [plausible class-of-one] Equal Protection
claim.
Page 9 - OPINION AND ORDER
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Id. at 238-39 (internal citation and quotation marks omitted); see
2
also Scocca, 2012 WL 2375203, at *6 (concluding that the plaintiff
3
failed to state a plausible class-of-one Equal Protection claim
4
because he only alleged in conclusory terms that he was similarly
5
situated with seventy other people who were apparently treated
6
differently).
7
Here, the Court agrees with Defendant that Plaintiff has
8
failed to state a plausible class-of-one claim under the Equal
9
Protection Clause.
The complaint alleges “[t]here are no other
10
similarly
property
11
Clackamas County known to [Plaintiff] who have been subjected to
12
the same and/or similar interference with their efforts to sell
13
and/or develop their properties.”
14
the test backwards.
15
property owners who have had the same or similar treatment by
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Defendant that supports this type of claim. It is the existence of
17
such similarly situated property owners who weren’t treated in the
18
alleged manner that gives rise to the claim. Plaintiff must allege
19
with particularity who these “others” are.
20
Mosley, 787 F. Supp. 2d 1022, 1031 (N.D. Cal. 2011) (“Vinatieri has
21
not explained to whom he was similarly situated. . . . The equal
22
protection claim must be dismissed, although Vinatieri may amend
23
the
24
14–0286–UA, 2014 WL 1347180, at *7 (C.D. Cal. Apr. 4, 2014) (“While
25
Plaintiff claims that he was treated differently than the other
26
subtenants at the premises, Plaintiff has not alleged that his
27
circumstances were similar to those of any other subtenant in all
28
relevant respects.”).
FAC
situated
if
he
can
owners
and/or
developers
(Compl. ¶ 56.)
within
Plaintiff has
It is not the absence of similarly situated
do
so.”);
Page 10 - OPINION AND ORDER
Shapiro
v.
See Vinatieri v.
Suvorov,
No.
SACV
1
In short, the Court grants Defendant’s motion to dismiss
2
Plaintiff’s class-of-one equal protection claim with leave to
3
replead in accordance with the authorities cited in this Opinion
4
and Order.
5
B.
6
Inverse Condemnation
Plaintiff also brings a claim against Defendant for inverse
7
condemnation.
8
paragraph fifty of his complaint, Plaintiff alleges a taking of
9
property without payment of just compensation in violation of
10
Article I, section 18, of the Oregon Constitution, as well as the
11
Fifth
12
briefing, Plaintiff focuses his arguments on the viability of a
13
state law claim for inverse condemnation, and at one point,
14
seemingly suggests that the Court should disregard Defendant’s
15
reliance on a federal takings case.
16
federal constitution does not become relevant until the Oregon
17
constitutional claim is resolved . . . .”).
18
characterizes his inverse condemnation claim as “claims [pleaded]
19
under both the Oregon and federal constitutions,” citing paragraph
20
fifty of his complaint.
Amendment
Though styled as a single claim for relief, in
to
the
United
States
Constitution.
In
his
(Pl.’s Resp. at 16) (“But the
But Plaintiff also
(Pl.’s Resp. at 9.)
21
“Inverse condemnation is simply a popular term for a takings
22
claim in which the government has taken property without formal
23
condemnation proceedings.”
24
W. Linn, 428 F. App’x 700, 701 n.2 (9th Cir. 2011).
25
for an unconstitutional taking are not necessarily identical under
26
the provisions of the state and federal constitutions, however.
27
Ferguson v. City of Mill City, 120 Or. App. 210, 213 (1993).
28
Indeed,
Page 11 - OPINION AND ORDER
W. Linn Corporate Park, LLC v. City of
The criteria
1
2
3
4
[t]he Oregon Supreme Court has observed that the ‘basic
thrust’ of the two constitutional provisions ‘is
generally the same’ but has cautioned that the ‘criteria’
used to determine if a ‘taking for public use’ has
occurred within the meaning of the Oregon Constitution
‘are not necessarily identical to those pronounced from
time to time by the United States Supreme Court under the
fifth amendment.’
5
6
Schoonover v. Klamath County, 105 Or. App. 611, 614 (1991) (citing
7
Suess Builders v. City of Beaverton, 294 Or. 254, 259 n.5 (1982)).
8
An example that illustrates the importance of the distinction
9
is David Hill Development, LLC v. City of Forest Grove, 688 F.
10
Supp. 2d 1193 (D. Or. 2010), where Judge Acosta undertook separate
11
state and federal takings analyses and ultimately granted summary
12
judgment on the plaintiff’s state law inverse condemnation claim
13
and denied summary judgment on the plaintiff’s federal inverse
14
condemnation claim.
15
Judge Acosta also noted that state law takings claims are subject
16
to a six-year statute of limitations under ORS 12.080(4), while
17
federal takings claims brought under § 1983 are governed by
18
Oregon’s
19
claims.
20
two-year
Id. at 1197 & 1209-11.
statute
of
limitations
Later in his opinion,
for
personal
injury
Id. at 1223.
In the Ninth Circuit, “[t]aking claims must be brought under
21
§ 1983.”
Hacienda Valley Mobile Estates v. City of Morgan Hill,
22
353 F.3d 651, 655 (9th Cir. 2003); Golden Gate Hotel Ass’n v. City
23
& County of San Francisco, 18 F.3d 1482, 1486 (9th Cir. 1994)
24
(“[A]ll claims of unjust taking ha[ve] to be brought pursuant to
25
Section 1983” (citing Azul-Pacifico, Inc. v. City of Los Angeles,
26
973 F.2d 704, 705 (9th Cir. 1992))).
27
1983, a plaintiff must allege two essential elements——that a right
28
secured by the Constitution or laws of the United States was
Page 12 - OPINION AND ORDER
“To state a claim under §
1
violated; and that the alleged violation was committed by a person
2
acting under the color of state law.”
3
14–0411 PJH, 2014 WL 644557, at *4 (N.D. Cal. Feb. 19, 2014)
4
(citing West v. Atkins, 487 U.S. 42, 48 (1988)).
Taylor v. Fields, No. C
5
In White v. Valley County, No. 1:09–cv–494–EJL–CWD, 2011 WL
6
4583846 (D. Idaho Sept. 30, 2011), for example, the plaintiffs
7
filed
8
recommendation, arguing, among other things, that “they should be
9
allowed to bring a direct action under the Takings Clause without
objections
to
the
magistrate
judge’s
and
10
pleading it under § 1983.”
11
acknowledged that the plaintiffs were “not alone in their view,”
12
id. (citing Lawyer v. Hilton Head Pub. Serv. Dist. No. 1, 220 F.3d
13
298, 303 n.4 (4th Cir. 2000)), but nonetheless concluded that he
14
was bound by Ninth Circuit precedent requiring that taking claims
15
be brought pursuant to § 1983.
16
statute of limitations for personal injury actions, the Court went
17
on to conclude that one of the plaintiff’s federal constitutional
18
claims (including a federal takings claim) were barred. Id. at *8.
19
Here, Plaintiff explicitly invokes § 1983 with respect to his
20
class-of-one equal protection claim, in addition to asserting that
21
the alleged equal protection violation was “done under color of
22
laws, ordinances, and regulations of the State of Oregon and
23
Clackamas County.”
24
either with respect to his inverse condemnation claim.
25
cannot
26
jurisdiction in this case “is wholly based upon Plaintiff’s § 1983
27
claims.
28
plausible § 1983 claims, this Court would lack federal question
overlook
Id. at *7.
report
Id.
(Compl. ¶ 54.)
these
The district judge
Borrowing Idaho’s two-year
Yet, Plaintiff fails to do
deficiencies
because
The Court
subject-matter
Consequently, if Plaintiff’s complaint fails to state
Page 13 - OPINION AND ORDER
1
jurisdiction.” Miller v. Kashani, No. CV 12–5649 CAS (AN), 2012 WL
2
4088689, at *2 (C.D. Cal. Aug. 17, 2012).
3
In summary, the Court concludes that Plaintiff has failed to
4
state a plausible takings claim under § 1983, or a plausible class-
5
of-one equal protection claim under § 1983.
6
Plaintiff leave to amend his complaint, but declines to address any
7
state law claim at this time.
8
06-201(RS), 2006 WL 3411875, at *3 (N.D. Cal. Nov. 27, 2006)
9
(“[T]he Court concludes that Bean has failed to allege a cognizable
10
federal claim against Shapiro or Villasenor, and thus has failed to
11
allege a basis for subject matter jurisdiction in this Court.
12
Because the Court concludes that Bean has failed to allege a
13
cognizable federal claim, the Court need not address Bean’s state
14
law claims. . . . [T]he Court will grant Bean one final opportunity
15
to attempt to allege a viable federal claim.”); see also Wiley v.
16
Dep’t of Children & Family Servs., No. CV 12–04334 GHK (AJW), 2013
17
WL 5775187, at *7 (C.D. Cal. Oct. 25, 2013) (“The complaint fails
18
to state a federal claim, and no diversity jurisdiction exists
19
against the County. Accordingly, the Court should decline to
20
exercise supplemental jurisdiction over plaintiff’s state law
21
claims.”).
22
The Court grants
See Bean v. Shapiro, No. C
IV. CONCLUSION
23
For the reasons stated, Defendant’s motion (Docket No. 9) to
24
dismiss is granted. Plaintiff is granted thirty days (30) leave to
25
replead in accordance with this Opinion and Order. The parties are
26
expected to confer about the form of the amended complaint before
27
it is filed to attempt to eliminate another round of motions to
28
Page 14 - OPINION AND ORDER
1
dismiss.
Once filed, Defendant will have forty-five (45) days to
2
respond to the amended complaint.
3
IT IS SO ORDERED.
4
Dated this 24th
day of June, 2014.
5
/s/ Dennis J. Hubel
_________________________________
DENNIS J. HUBEL
United States Magistrate Judge
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Page 15 - OPINION AND ORDER
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