United States District Court, W.D. Washington, Tacoma
B. LEIGHTON, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant C-Tran's Motion
to Dismiss [Dkt. #11] and Defendant Garza's Motion for
Judgment on the Pleadings [Dkt. #17]. Q nightclub is a
“hip hop” club in Vancouver. It opened in early
2015. The same year, C-Tran (the Clark County Public
Transportation Benefit Area) executed on a pre-existing plan
to build and operate a bus rapid transit facility on property
it owned next to Q Nightclub. As a result, Q Nightclub's
secondary fire exit was blocked and no longer available for
use, and by December 2015 the fire marshal shut the club
Nightclub and its owners sued C-Tran, the City of Vancouver,
the Director of the Washington State Liquor and Cannabis
Board (Garza), the Vancouver Police Chief (McElvain),
Vancouver's mayor (Leavitt), and Vancouver's Fire
Chief (Molina) for $22 million. It claims the City and the
other defendants targeted the club because of its African
American and or Hispanic clientele, violating (or conspiring
to violate) its constitutional rights. It also asserts state
law contract and tort claims. Q Nightclub also sued the WSLCB
director for, it claims, terminating its liquor license. (Q
Nightclub's claims against the other defendants are
similar, but are not relevant to these motions).
seeks dismissal for failure to state a claim (and for lack of
standing on the part of the individual plaintiffs on some of
the claims. It argues that it had the right to build the
transit facility on its own property and had no control over
the club's liquor license or the fire regulations
requiring a second fire exit. It argues the claim that it
conspired with the other defendants to shut down the club is
not plausible. It also argues that the state law tort claims
are barred by the plaintiffs' failure to file the
required pre-claim notice.
seeks judgment on the pleadings, arguing that there is no
plausible claim that the club's liquor license was in
fact revoked, or that Garza himself actually did anything to
cause a violation of any of the club's rights.
Q Nightclub has not responded to either motion, and the time
for doing so has passed.
The failure to respond an admission that its motion has merit
under Local Rule 7:
(b) Obligation of Opponent. Each party opposing the motion
shall, within the time prescribed in LCR 7(d), file with the
clerk, and serve on each party that has appeared in the
action, a brief in opposition to the motion, together with
any supporting material of the type described in subsection
(1). If a party fails to file papers in
opposition to a motion, such failure may be considered by the
court as an admission that the motion has
under Rule 12(b)(6) may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory. Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1990). A plaintiff's complaint must allege facts to state
a claim for relief that is plausible on its face. See
Aschcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A claim
has “facial plausibility” when the party seeking
relief “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Although the
Court must accept as true the Complaint's well-pled
facts, conclusory allegations of law and unwarranted
inferences will not defeat a Rule 12(c) motion. Vazquez
v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007);
Sprewell v. Golden State Warriors, 266 F.3f 979, 988
(9th Cir. 2001). “[A] plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 129 S.Ct. at 1949 (citing Twombly).
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 motions brought under
either rule. Cafasso, U.S. ex rel. v. General Dynamics C4
Systems, Inc., 647 F.3d 1047 (9th Cir. 2011),
citing Dworkin v. Hustler Magazine Inc., 867 F.2d
1188, 1192 (9th Cir.1989); see also Gentilello v.
Rege, 627 F.3d 540, 544 (5th Cir. 2010) (applying
Iqbal to a Rule 12(c) motion).
Motion does have merit, for the reasons articulated in it.
The same is true of Garza's Motion. Q Nightclub's
failure to respond to these persuasive motions is an
admission that they have merit, and both Motions are granted.
Plaintiffs' claims against C-Tran and Garza are DISMISSED
with prejudice and without leave to amend.