Q Nightclub and Lounge et al v. City of Vancouver et al

Filing 34

ORDER granting 31 Defendant's Motion to Dismiss for Failure to State a Claim; Plaintiff's claims against the City Defendants are DISMISSED with prejudice and without leave to amend; signed by Judge Ronald B. Leighton.(DN) Modified on 11/21/2017 (DN). (cc to Adrian Kallimanis and Jose Parra)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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Q NIGHTCLUB AND LOUNGE,

CASE NO. C17-5262RBL

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Plaintiff,
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v.

ORDER GRANTING VANCOUVER’S
MOTION TO DISMISS

CITY OF VANCOUVER,
Defendant.

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THIS MATTER is before the Court on Defendant Vancouver’s Motion to Dismiss [Dkt.

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#31]. Q nightclub is a “hip hop” club in Vancouver. It opened in early 2015. The same year, C-

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Tran (the Clark County Public Transportation Benefit Area) executed on a pre-existing plan to

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build and operate a bus rapid transit facility on property it owned next to Q Nightclub. As a

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result, Q Nightclub’s secondary fire exit was blocked and no longer available for use, and by

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December 2015 the fire marshal shut the club down.

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Q Nightclub and its owners sued1 C-Tran, the City of Vancouver, the Director of the
Washington State Liquor and Cannabis Board (Garza), the Vancouver Police Chief (McElvain),

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Vancouver points out that the plaintiffs’ attorneys filed a similar claim on behalf of a different plaintiff in Portland,
and imported portions of that complaint into this case.

ORDER GRANTING VANCOUVER’S MOTION
TO DISMISS - 1

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Vancouver’s Mayor (Leavitt), and Vancouver’s Fire Chief (Molina) for $22 million. It claims

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Vancouver and the other defendants targeted the club because of its African American and

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Hispanic clientele, violating (or conspiring to violate) its constitutional rights. It also asserts state

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law contract and tort claims.
The Court previously dismissed defendants C-Tran and Garza. [Dkt. #25]. Vancouver,

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McElvain, Molina, and Leavitt (together, “the City”) now seek dismissal for failure to state a

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claim.

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Q Nightclub has not responded to the motion, and the time for doing so has passed.

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The failure to respond an admission that its motion has merit under Local Rule 7:

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(b) Obligation of Opponent. Each party opposing the motion shall, within the time

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prescribed in LCR 7(d), file with the clerk, and serve on each party that has appeared in the

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action, a brief in opposition to the motion, together with any supporting material of the type

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described in subsection (1). If a party fails to file papers in opposition to a motion, such failure

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may be considered by the court as an admission that the motion has merit.

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Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal

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theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff’s complaint must allege

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facts to state a claim for relief that is plausible on its face. See Aschcroft v. Iqbal, 129 S. Ct.

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1937, 1949 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. Although the Court must accept as true the Complaint’s well-pled facts,

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conclusory allegations of law and unwarranted inferences will not defeat a Rule 12(c) motion.

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Vazquez v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State

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ORDER GRANTING VANCOUVER’S MOTION
TO DISMISS - 2

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Warriors, 266 F.3f 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation to provide the ‘grounds’

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of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. Factual allegations must be enough to

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raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

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(2007) (citations and footnotes omitted). This requires a plaintiff to plead “more than an

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unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 129 S. Ct. at 1949 (citing

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Twombly).

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Although Iqbal establishes the standard for deciding a Rule 12(b)(6) motion, Rule 12(c)
is “functionally identical” to Rule 12(b)(6) and that “the same standard of review” applies to

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motions brought under either rule. Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc.,

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647 F.3d 1047 (9th Cir. 2011), citing Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192

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(9th Cir.1989); see also Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (applying Iqbal to

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a Rule 12(c) motion).

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The City’s Motion does have merit, for the reasons articulated in it. Q Nightclub’s failure

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to respond to this persuasive motion is an admission that it has merit, and the Motion to Dismiss

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is GRANTED. Plaintiffs’ claims against the City Defendants are DISMISSED with prejudice

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and without leave to amend.

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IT IS SO ORDERED.

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Dated this 21st day of November, 2017.

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A

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Ronald B. Leighton
United States District Judge

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ORDER GRANTING VANCOUVER’S MOTION
TO DISMISS - 3