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)

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HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 Q NIGHTCLUB AND LOUNGE, CASE NO. C17-5262RBL 9 Plaintiff, 10 11 12 v. ORDER GRANTING VANCOUVER’S MOTION TO DISMISS CITY OF VANCOUVER, Defendant. 13 14 THIS MATTER is before the Court on Defendant Vancouver’s Motion to Dismiss [Dkt. 15 #31]. Q nightclub is a “hip hop” club in Vancouver. It opened in early 2015. The same year, C- 16 Tran (the Clark County Public Transportation Benefit Area) executed on a pre-existing plan to 17 build and operate a bus rapid transit facility on property it owned next to Q Nightclub. As a 18 result, Q Nightclub’s secondary fire exit was blocked and no longer available for use, and by 19 December 2015 the fire marshal shut the club down. 20 21 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), 22 23 24 1 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 1 Vancouver’s Mayor (Leavitt), and Vancouver’s Fire Chief (Molina) for $22 million. It claims 2 Vancouver and the other defendants targeted the club because of its African American and 3 Hispanic clientele, violating (or conspiring to violate) its constitutional rights. It also asserts state 4 law contract and tort claims. The Court previously dismissed defendants C-Tran and Garza. [Dkt. #25]. Vancouver, 5 6 McElvain, Molina, and Leavitt (together, “the City”) now seek dismissal for failure to state a 7 claim. 8 Q Nightclub has not responded to the motion, and the time for doing so has passed. 9 The failure to respond an admission that its motion has merit under Local Rule 7: 10 (b) Obligation of Opponent. Each party opposing the motion shall, within the time 11 prescribed in LCR 7(d), file with the clerk, and serve on each party that has appeared in the 12 action, a brief in opposition to the motion, together with any supporting material of the type 13 described in subsection (1). If a party fails to file papers in opposition to a motion, such failure 14 may be considered by the court as an admission that the motion has merit. 15 Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal 16 theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. 17 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff’s complaint must allege 18 facts to state a claim for relief that is plausible on its face. See Aschcroft v. Iqbal, 129 S. Ct. 19 1937, 1949 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Id. Although the Court must accept as true the Complaint’s well-pled facts, 22 conclusory allegations of law and unwarranted inferences will not defeat a Rule 12(c) motion. 23 Vazquez v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State 24 ORDER GRANTING VANCOUVER’S MOTION TO DISMISS - 2 1 Warriors, 266 F.3f 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation to provide the ‘grounds’ 2 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 3 recitation of the elements of a cause of action will not do. Factual allegations must be enough to 4 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 5 (2007) (citations and footnotes omitted). This requires a plaintiff to plead “more than an 6 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 129 S. Ct. at 1949 (citing 7 Twombly). 8 9 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 10 motions brought under either rule. Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 11 647 F.3d 1047 (9th Cir. 2011), citing Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 12 (9th Cir.1989); see also Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (applying Iqbal to 13 a Rule 12(c) motion). 14 The City’s Motion does have merit, for the reasons articulated in it. Q Nightclub’s failure 15 to respond to this persuasive motion is an admission that it has merit, and the Motion to Dismiss 16 is GRANTED. Plaintiffs’ claims against the City Defendants are DISMISSED with prejudice 17 and without leave to amend. 18 IT IS SO ORDERED. 19 Dated this 21st day of November, 2017. 21 A 22 Ronald B. Leighton United States District Judge 20 23 24 ORDER GRANTING VANCOUVER’S MOTION TO DISMISS - 3

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