Lewis v. Chase Airport Management Inc.

• Court: District Court, S.D. California
• Decided: November 6, 2019
• Docket: 3:19-cv-01152
• Status: Unknown

Opinion

FILED 2 . 3 . NOV 0.6 2013 a g prethict COURT 4 ctean cIBTRT oF eALIRGR

8 UNITED STATES DISTRICT COURT oi _ SOUTHERN DISTRICT OF CALIFORNIA 10 11 || THOMAS J. LEWIS and Case No.: 3:19-cv-01152-WQH-NLS LETICIA G. LEWIS, 12 Plaintiffs,| ORDER 13 .

14 . . CHASE AIRPORT 15 || MANAGEMENT INC.; COUNTY 16 || OF SAN DIEGO; FEDERAL . AVIATION ADMINISTRATION; 17 || and DOES 1-100, 18 Defendants. □ 19 HAYES, Judge: . 20 The following matters are pending before the Court: 1) the Motion to Dismiss filed 71 by Defendant Chase Airport Management Inc, (ECF No. 4); 2) the Motion to Dismiss filed 22 by Defendant Federal Aviation Administration (ECF No, 6); and 3) the Motion to Dismiss 23 filed by Defendant County of San Diego (ECF No.9). . 24 BACKGROUND 2 On April 2, 2019, Plaintiffs Thomas J. Lewis and Leticia G. Lewis initiated this 26 action by filing a Complaint in the Superior Court of California, County of San Diego. 27 (Def.’s Notice of Removal, ECF No. | at On May 22, 2019, Plaintiffs filed the First 28

1 ||Amended .Complaint (“FAC”) against Defendants Chase Airport Management Inc 2 |1(“Chase”); the Federal Aviation Administration (“FAA”); and the County of San □□□□□ 3 (“County”). Jd, at 5. Plaintiffs bring claims for (1) negligence; (2) harassment; (3) hostil 4 work environment: (4) hostile living environment; and (5) emotional distress. Id. Plaintiff ||seek to “[hJold [Defendants] Doe [Plilots criminally accountable,” declaratory relief, a 6 |lunspecified sum in compensatory damages, and punitive damages in the amount 0 7 || $25,000,000.00. Jd. at 6. On June 25, 2019, Defendant Chase filed a Motion to Dismiss for failure to □□□□□□ 9 claim. (ECF No. 4). On June 26, 2019, Defendant FAA filed a Motion to Dismiss for lac 10 || of subject matter jurisdiction (ECF No. 6), supported bya Declaration (George Decl., □□□ 11 6-2 at 1-2) and Plaintiffs’ Administrative Claim to the FAA (Ex. A to George Decl 12 ||ECF No. 6-2 at 4), On the same day, Defendant County filed a Motion for More Definit 13 || Statement, or, in the alternative, a Motion to Dismiss for failure to state a claim and 14 || Motion to Strike Plaintiffs’ prayer for punitive damages (ECF No. 9), supported by 15 || Request for Judicial Notice (ECF No. 9-2). 16 On July 29, 2019, Plaintiffs filed a Response in Opposition to Defendants’ Motio 17 ||to Dismiss for failure to state a claim (ECF No. 15), supported by attachments (ECF N« 18 || 15 at 10-40). 19 On July 31, 2019, Defendant County filed a Reply. (ECF No. 16). On August □ 20 |)2019, Defendant FAA filed a Reply. (ECF No. 17). 21 On August 15, 2019, Plaintiffs filed a Response in Opposition to Defendant Count 22 ||of San Diego’s Motion to Dismiss. (ECF No. 19). On August 22, 2019, Plaintiffs filed 23 ||Response to Defendant FAA’s Reply Brief in Support of Defendant FAA’s Motion t 24 ||Dismiss. (ECF No. 25). On August 30, 2019, Plaintiffs filed a second Response t 25 || Defendant FAA’s Reply Brief in Support of Defendant FAA’s Motion to Dismiss. (EC 26 |No.27).. 37

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT 2 Plaintiffs allege that Defendants lack “professionalism, ethical behavior and safe |{operations” and “[hJave a professional responsibility to advocate and maintain safety, 4 ||regulate flights in and out of airport, and ensure all regulations and rules are followed 5 || daily.” (ECF No. 1 at 6). Plaintiffs allege that 6 Defendants unnécessarily, dangerously, detoured aircraft to a specific place at 7 a specific time. Our home a[n]d our business. Creating, a. deliberate atmosphere of fear ([Jkill zone). . ld. Plaintiffs allege that Defendant Chase “annexed our property into airport operation 10 |} with criminal intent placing us in a kill zone.” Jd. at 7. Plaintiffs allege that Defendants i drove them out of their home and forced the closure of their childcare business. Jd. at 9. □ 2 LEGAL STANDARD 13 Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move 14 for dismissal on grounds that the court lacks jurisdiction over the subject matter. Fed R. 15 Civ. P. 12(b)(1). The burden is on the plaintiff to establish that the court has subject matter 16 jurisdiction over an action. Assoc. of Medical Colleges v. United States, 217 F.3d 770, 7 778-779 (9th Cir. 2000). In resolving an attack on a court’s jurisdiction, the court may go 18 outside the pleadings and consider evidence beyond the complaint relating to jurisdiction 19 without converting the motion to dismiss into a motion for summary judgment. Safe Air 20 For Everyone v. Doyle, 373 F.3d-1035, 1039 (9th Cir. 2004). Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a 9 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). F ederal Rule of Civil 73 Procedure 8(a).provides that “[a] pleading that states a claim for relief must contain □ 24 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 25 R. Civ. P. 8(a)(2). “A district court’s dismissal for failure to state a claim under Federal 26 Rule of Civil Procedure 12(b)(6) is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Conservation 28 Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (internal quotation omitted). “All

1 || allegations of material fact are taken as true and construed in the light most favorable t 2 ||the nonmoving party.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 3 | “(A] plaintiff's. obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief 4 requires more than labels and conclusions, and a forriulaic recitation of the elements of □ 5 cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotin; 6.||Fed. R. Civ. P. 8(a)). When considering a motion to dismiss, a court must accept as trus “well-pleaded factual allegations.” Ashcroft v. Igbal, 556 U.S. 662, 679 (2009) 8 || However, a court is not “required to accept as true allegations that are merely conclusory 9 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden Si 10 || Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “In sum, for a complaint to survive a □□□□□□ 11 |} to dismiss, the non-conclusory factual content, and reasonable inferences from that conten 12 || must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secre 13 || Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted). 14 JUDICIAL NOTICE ~ . 15 “As a general rule, ‘a district court may not consider any material beyond th 16 | pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of L.A., 250 F.3d 668, 688 (9t 17 Cir. 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). However Feder 18 ||Rule of Evidence 201 provides that “[t]he court may judicially notice a fact that is nc subject to reasonable dispute because it... is generally known within the trial court’ 20 || territorial jurisdiction; or... can be accurately and readily determined from sources whos 21 |/accuracy cannot reasonably be questioned.” Fed R. Evid. 201(b). “(Under Fed. R. Evic 22 ||201, a court may take judicial notice of ‘matters of public record.” Lee, 250 F.3d at 68 23 || (quoting Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986)). Court 24 may take judicial notice of “proceedings in other courts, both within and without the □□□□□□ 25 ||judicial system, if those proceedings have a direct relation to matters at issue.” U.S: ex re 26 || Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992 27 || (citation and internal quotations omitted). 28

1 Defendant County requests Judicial notice of Plaintiffs’ Complaint filed in state 2 Ihcourt in Lewis et al v. McGowen et al, No. 18-cv-0843-WQH-NLS (S.D. Cal. Mar. 13, 3 ||2019) (“Lewis I’) (Ex. 1, ECF No. 9-2); this Court’s Order granting Defendants’ Motion 4 ||to Dismiss without prejudice in Lewis I (Ex. 2, ECF No. 9-2); and this Court’s Order _ 3 granting Defendants’ Motion to Dismiss with prejudice in Lewis I (Ex. 3, ECF No. 9-2), 6 Plaintiffs do not oppose the request for judicial notice. The Court takes judicial notice of 7 Plaintiffs’ Complaint filed in state court in Lewis I (Ex. 1, ECF No. 9-2); this Court’s Order 8 || granting Defendants’ Motion to Dismiss without prejudice in Lewis I (Ex. 2, ECF No. 9- 9 and this Court’s Order granting Defendants’ Motion to Dismiss with prejudice in Lewis 10 (Ex. 3, ECF No. 9-2). See Borneo, Inc., 971 F.2d at 248. DISCUSSION □ 12 A. Defendant Chase : 13 || . Defendant Chase contends that Plaintiffs’ FAC should be dismissed on the grounds 14 || that it lacks any cognizable legal theory and any factual allegations against Defendant 15 ||Chase. (ECF No. 4-1 at 5). Defendant Chase contends that Plaintiffs fail to identify any 16 || duty that Defehdant Chase owes Plaintiffs and fail to allege acts or omissions below the 17 ||standard of care to support a negligence claim. /d, at 4. Defendant Chase contends that 18 || Plaintiffs fail to establish a work or employment relationship between Plaintiffs and 19 ||Defendant Chase to support a hostile work environment claim. Jd. at 4-5. Plaintiffs 20 Ilcontend that the FAC is adequate and, in the event that the Court is inclined to grant 21 || Defendant Chase’s Motion to Dismission, request leave to file an. amended complaint. 22 No. 15 at 8). 23 Plaintiffs’ sole specific reference to Defendant Chase in the FAC is as follows: 24 ||“Chase Airport Management, Inc. annexed our property into airport operation with 25 criminal intent placing us in a kill zone.” (ECF No. 1 at 7). The Court finds that the 26 allegations of the FAC related to Defendant Chase “are conclusory and not entitled to be || assumed true.” Iqbal, 556 US. at 680-81. Plaintiff fails to allege facts to state a claim 28

against Defendant Chase. The Motion to Dismiss by Defendant Chase (ECF No. 4) i: 2 || granted. — : 3 B. Defendant FAA . □ Defendant FAA contends that Plaintiffs failed to wait the requisite six months fo 5 ||the FAA’s investigative process to be complete before filing their Complaint. (ECF No 6 ||6-1 at 1). Defendant FAA asserts that on January 22, 2019, Plaintiffs signed and dated a: 7 || Administrative Claim to the FAA (Ex. A to George Decl., ECF No. 6-2 at 4). Defendan g FAA asserts that on February 4, 2019, Defendant FAA received Plaintiffs’ Claim. (Georg: Decl. 14, ECF No. 6-2 at 2). Plaintiffs contend that the FAC is adequate and, in the even 10 || that the Court is inclined to grant Defendant Chase’s Motion to Dismission, request leav 11 file an amended complaint. (ECF No. 15 at 8). . 1

12° ~~ Pursuant to the F ederal Tort Claims Act, a jurisdictional prerequisite to biinging 13 || lawsuit in federal court against the United States in tort is the filing of an administrativ 14 }|claim with the appropriate federal agency. Jerves v. United States, 966 F.2d 517, 518-1: 15 || (9th Cir. 1992). Once the administrative claim has been filed; the federal agency has st

_ 16 |!months to act. 28 USC. § 2675(a). The claimant can file a civil suit under the FTCA onl 17 after the agency either denies the claim in writing or fails to make a final disposition of th 18 || claim within six months after it is filed. Jd. “‘{T]he statutory procedure is clear.” A □□□ 19 claimant may not commence proceedings. court against the United States without fir 20 filing ... [a] claim with an appropriate federal agency and either receiving a conclusiv 21 denial of the claim from the agency or waiting for six months to elapse without a fine _22 || disposition of the claim being made.” Jerves, 966 F.2d at 519 (quoting Caton v. Unite 23 || States, 495 F.2d 635, 638 (9th Cir.1974)). . □ 24 Plaintiffs signed and dated an Administrative Claim to the FAA onJ anuary 22, □□□□ 25 Plaintiffs filed a Complaint on April 2, 2019 and a FAC on May 22, 2019 in Californi 26 || Superior Court. Plaintiffs did not wait the requisite six months for Defendant FAA to ac 27 || Defendant FAA made a final disposition of Plaintiffs’ Administrative Claim on June 25 28 .

‘1 2019. Plaintiffs’ action against Defendant FAA was premature and the Court does not have 2 subject matter jurisdiction over Plaintiffs’ claims. See Jerves, 966 F.2d at 519. □ 3 A lawsuit filed. prior to the exhaustion of a claimant’s administrative claim is 4 premature and must be dismissed. McNeil v. United States, 508 U.S. 106, 113 (1993). As 5 j{a general rule, a premature complaint cannot be cured through amendment; instead, the 6 claimant must file a new suit. Duplan v. United States, 188 F.3d 1195, 1199 (10th Cir. 7 |, 1999) (citing Sparrow v. USPS, 823 F. Supp. 252, 254-55 (ED. Cal. 1993)). “Allowing 8 ||claimants generally to bring new suit under the FTCA before exhausting their 9 ||administrative remedies and to cure the jurisdictional defect by filing an amended 10-|}complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system.” Duplan, 188 F.3d at 1199, Any further 12 }|;amendment would be futile because Plaintiffs have failed to meet the pre-litigation, 13 || waiting-period requirement of the Federal Tort Claims Act.! 14 C. Defendant County _ . □ 15 Defendant County contends that Plaintiffs’ FAC is “so vague and unconventional in 16 form and style that it fails to inform the defendants what, exactly, they each are being 17 || accused of, and what relief is being sought from each defendant (as opposed to other 18 -|| defendants), and on what theory of liability.” (ECF No. 9-1 at 11). In the alternative, 19 || Defendant County contends that Plaintiffs’ FAC should be dismissed for failure to state a 20 claim for two reasons: (1) Plaintiffs fail to plead facts that, if proved, would satisfy the 21 |/essential elements of the alleged causes of action and (2) Plaintiffs’ claims are barred by 22 |/res judicata pursuant to this Court’s Order dismissing Plaintiffs’ Complaint with prejudice 23 |lin a previous related case, Lewis I. Id. at 12; see Lewis I, No. 18-cv-0843-WQH-NLS, 24 |/2019 WL 142163 (S.D. Cal. Jan. 8, 2019). 25 oe 2% ' “The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States ‘shall 27 forever barred” unless it is presented to the ‘appropriate Federal agency within two years after such 22 claim accrues’ and then brought to federal court ‘within six months’ after the agency acts on the claim. 28 ULS.C. § 2401(b).” U.S.-v. Kwai Fun Wong, 135 8.Ct. 1625, 1629 (2015).

Defendant County contends that both Lewis J and the current action arise out of th 2 || same transactional nucleus of facts: operations taking place at or near the Ramona Airpor 3 ||in San Diego, CA. (ECF No. 9-1 at 21). Defendant County contends that the alleged harm 4 || the allegedly infringed rights, and the amount of damages sought are the same in botl 5 ||actions. /d. at 21. Defendant County contends that a final judgment on the merits wa 6 ||issued in Lewis I Id. at 22. Defendant County contends that there is identity or privit 7 || between parties because San Diego County officials were sued in their official capacitie 8 |lin Lewis I and San Diego County itself is a Defendant in the current action. Jd. at 22-23. 9 ||: Pursuant to the doctrine of res judicata, “‘a valid, final judgment on the merit 10 || precludes parties or their privies from relitigating the same cause of action in a subsequen 11 |) suit.’” San Diego Police Officers’ Ass'n v. San Diego City Employees’ Retirement System 12 ||568 F.3d 725, 734 (9th Cir. 2009) (quoting Le Pare Cmty. Ass'n v. Workers' Comp. Appeal 13 || Bd., 110 Cal. App.4th 1161 (2003)). “Thus three requirements have to be met: (1} th 14 second lawsuit must involve the same cause of.action as the first one, (2) there must hav 15 been a final judgment on the merits in the first lawsuit and Q) the party to be preclude 16 || must itself have been a party, or in privity with a party, to that first lawsuit.” San Dieg 17 || Police Officers’ Ass’n, 568 F.3d at 734. The party asserting res judicata has the burden t 18 demonstrate that its requirements are met. Shapley v. Nevada Bd. of State Prison Comm YS 19 || 766 F.2d 404 (9th Cir. 1985). □□ 20 An identity of claims exists when two suits arise from the same transactional nucleu 21 || of facts. -Tahoe—Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 322 F.3d 1064

22 || 1078 (9th Cir. 2003). Two events are part of the same transaction or series of transaction 23 where the claims share a factual foundation such that they could have been tried togethe: 24 || Western Systems, Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992). “Different theorie 25 || supporting the same claim for relief must be brought in the initial action.” Id. In Lewis 26 Complaint alleged that the Defendants “aided and abetted [a] racist bigoted hostile hat 27 || group” and “supported and empowered doe pilots acting in a racist bigoted host{ile] grou 28 directed towards our family.” Lewis [, 2019 WL 142163, at *1. The Complaint furthe

] }/ alleged that the actions of the Defendants infringed upon Plaintiffs “right[ ] to live in peace 2 || without fear” and prevented Plaintiffs from “[o]perat[ing their] licensed childcare facility 3 ||as [they] had done for the past 30 years.” Jd. In the current action, Plaintiffs allege that 4 || Defendants drove them out of their home and forced the closure of their childcare business. 5 (ECF No. 1 at 9). In both Complaints, Plaintiffs: seek damages in the amount of 6 $25,000,000.00. (ECF No. 1 at 6; Ex. 1, ECF No. 9-2 at 10). The Court concludes that 7 is an identity of claims between Lewis J and the current action. 8 Pursuant to the second element, “the phrase ‘final judgment on the merits’ is often 9 used interchangeably with ‘dismissal with prejudice.’” Stewart v. U.S. Bancorp, 297 F.3d 10 956 (9th Cir. 2002); see Headwaters, Inc. v. United States Forest Serv., 399 F.3d Il || 1047, 1052 (9th Cir. 2005) (“a stipulated dismissal of an action with prejudice in a federal 12 |} district court generally constitutes a final judgment on the merits and precludes a party 13 || from reasserting the same claims in a subsequent action in the same court”); see also 14 || Classic Auto Refinishing, Inc. v. Marino (In re Marino), 181 F3d 1142, 1144 (9th Cir. 15 1999) (“We, of course, have no quarrel with the general premise that a dismissal with 16 || prejudice has res judicata effect. There can be little doubt that a dismissal with prejudice 17 ||bars any further action between the parties on the issues subtended by the case.”). In 18 addition, “Supreme Court precedent.confirms that a dismissal for failure to state a claim 19 |j under Rule 12(b)(6) is a ‘judgment on the merits’ to which res judicata applies.” Stewart, 20 |1297 F.3d at 957 (citing to Fi ederated Dep't Stores v. Moitie, 452 US. 394, 399 n. 3 □□□□□□□ 21 Lewis J, this Court issued an Order granting Defendants’ Motion to Dismiss for failure 22 || to state a claim under Rule 12(b)(6) and dismissing Plaintiffs’ Complaint with prejudice. 23 Lewis I, 2019 WL 142163, at *3. The court concludes that there was a final judgment.on 24 merits in Lewis I. □□ : 25 Pursuant to the third element, “(al suit against a governmental officer in his official 26 || capacity is equivalent to a suit against the governmental entity itself.” Larez v. City of Los 27 || Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (citing McRorie v. Shimoda, 795 F.2d 780, 783 28 || (9th Cir. 1986)); see also Rivera y. County of San Bernardino, No. CV 16-795 PSG {KSx),

1 |)2017 WL 5643153, at *9n2 (C.D. Cal. Mar. 8, 2017) (“To the extent that Plaintiff assert 2 ||the § 1983 claim against Sheriff Gore in his official capacity, such a claim is duplicative Plaintiff's claim against the County of San Diego and is dismissed ‘with prejudice.”) 4 || Normandeau v, City of Phoenix, 516 F.Supp.2d 1054, 1070 (D. Ariz. 2005) (“Ms. Stanton 5 || whom Plaintiff sued in her official capacity as Director of MVD, 1s in privity with th 6 || MVD, which was a defendant in the 1991 Complaint.”). In Lewis I, “Defendants Willian -7 ||Gore, Dianne Jacob and Helen Robbins-Meyer [were] public employees of the state o 8 || California” and the County of San Diego. Lewis J, 2019 WL 142163, at *1-2. In Lewis 4 9 || Plaintiffs filed a Complaint against Defendants Gore, Jacob, and Robbins-Meyer “fo 10 injury resulting from an. act or omission in the scope of [their] employment as a publi 1 I ||employee.” Jd. at 2. In the current action, Plaintiffs filed a Complaint against the Count, . 12 ||of San Diego. The Court concludes that Defendant County was in: privity with Defendant 13 || Gore, Jacob, and Robbins-Meyer in Lewis I. The Court concludes that all elements of re 14 judicata are met. Plaintiffs’ claim against Defendant County of San Diego is barred by th 15 || doctrine of res judicata. Any amended complaint that Plaintiff could bring would be barre 16 || by the application of res judicata, rendering amendment futile, 2 □ 17 ||. CONCLUSION 18 || HEREBY ORDERED that the Motion to Dismiss filed by Defendant Chas

|} Airport Management Inc. (ECF No. 4) is GRANTED with leave to amend. _

20 IT IS FURTHER ORDERED that the Motion to Dismiss filed by Defendant Feder:

21 Aviation Administration (ECF No. 6) is GRANTED. Plaintiffs’ First Amended Complair 22 ||is DISMISSED as to Defendant Federal Aviation Administration with prejudice. 23 “4 95 2 The Court has considered Plaintiffs’ pro se status. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (Pr se pleadings are held to a less stringent standard than those drafted by lawyers). Although a pro se plainti: 26 |}is normally entitled to notice and an opportunity to amend before dismissal, it is clear in this instance th: no amendment can cure the defects of claims brought against Defendant Federal Aviation Administratio 27 and Defendant County of San Diego. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) “Unde 28 Ninth oy case law, district courts are only required to grant leave to amend if a complaint can possibl

IT IS FURTHER ORDERED that the Motion to Dismiss filed by Defendant County 2 |}of San Diego (ECF No. 9) is GRANTED. Plaintiffs’ First Amended Complaint’ is 3 || DISMISSED as to Defendant County of San Diego with prejudice. 4 IT IS FUTHER ORDERED that the Motion to Strike a Prayer for Punitive Damages 5 || filed by Defendant County of San Diego (ECF No. 9) is DENIED as moot. 6 Plaintiff may file a Motion to File an Amended Complaint within sixty (60) says of 7 date.of this Order. If no motion is filed, the Clerk of the Court shall-close this case.

9 J J , : ‘loom niche Qh — United States District Judge 12 □ 13 14 □ 15

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