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Jere Enterprises LLC v. City of Bellevue

United States District Court, W.D. Washington, Seattle

March 8, 2018

JERE ENTERPRISES LLC, Plaintiff,
v.
CITY OF BELLEVUE, Defendant.

          ORDER

          Honorable Richard A. Jones United States District Judge

         This matter comes before the Court on Defendant's Motion to Dismiss. Dkt. # 11. Plaintiff opposes the motion. Dkt. # 16. For the reasons set forth below, the Court GRANTS the motion in part.

         I. BACKGROUND

         The following is taken from Plaintiff's Complaint, which is assumed to be true for the purposes of this motion to dismiss. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). Plaintiff owns property located in the City of Bellevue. Dkt. # 1 (Compl.) ¶ 3.1. Plaintiff sought to develop on its property, and approached Defendant for an evaluation as to whether there are critical areas on its property and, if so, how those areas should be classified. Id. at ¶¶ 3.1-2. Plaintiff submitted its permit application to Defendant, and sought its substantive review of the property. Id. at ¶ 3.2. Defendant cancelled Plaintiff's initial permit application without making a critical area determination. Id. Defendant is required by law to provide notice about the application to the project proponent or property owner. Id. at ¶ 3.6. Defendant recognized Plaintiff's legal counsel as its authorized agent and project proponent for the application, and thus provided Plaintiff's legal counsel with formal notice about the cancellation of Plaintiff's application. Id. at ¶¶ 3.2, 3.6. Plaintiff appealed Defendant's decision to cancel the application through a Land Use Petition Act (“LUPA”) claim in King County Superior Court. Id.

         The parties resolved the LUPA claim through a judicially approved stipulation, and agreed that Plaintiff would submit another permit application to Defendant for an evaluation of its property. Id. at ¶ 3.3. After submitting its second application, Plaintiff had multiple communications with Defendant regarding the status of the application. Id. at ¶¶ 3.5, 3.7-11. During this time, Defendant treated Plaintiff's legal counsel as the authorized agent and project proponent for Plaintiff's application. Id. at ¶ 3.5.

         Over the course of four months, Plaintiff's legal counsel-Plaintiff's authorized agent and project proponent for its application-contacted Defendant about the status of the application, receiving assurance from Defendant that the application was moving forward. Id. at ¶¶ 3.8-3.11. Several weeks passed without a response from Defendant about the status of the application. Id. at ¶ 3.14. However, on July 22, 2016, Plaintiff learned that Defendant issued its evaluation of Plaintiff's property without proper notification to Plaintiff or its authorized agent as required by Washington law. Id. at ¶¶ 3.14-5. Defendant issued its evaluation of the property on July 7, 2016. Id. at ¶ 3.15. The deadline to appeal the decision was July 21, 2016. Id. Plaintiff claims that because it did not receive proper notice, it could not timely appeal Defendant's decision. Id. at ¶ 3.19.

         Defendant is now before the Court seeking dismissal, contending that Plaintiff has failed to state claims upon which relief can be granted. Dkt. # 11. Defendant also argues that Plaintiff has no valid claims under Washington law and 42 U.S.C. § 1983. Plaintiff opposes the motion. Dkt. # 16.

         LEGAL STANDARD

         Dismissal under 12(b)(6) of the Federal Rules of Civil Procedure may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir.1990). The rule requires the court to assume the truth of the complaint's factual allegations and credit all reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). A court “need not accept as true conclusory allegations that are contradicted by documents referred to in the complaint.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The plaintiff must point to factual allegations that “state a claim to relief that is plausible on its face.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 568 (2007). To survive a motion to dismiss, the complaint does not require detailed factual allegations but must provide the grounds for entitlement to relief and not merely a “formulaic recitation” of the elements of a cause of action. Id. at 1965.

         A court typically cannot consider evidence beyond the four corners of the complaint, although it may rely on a document to which the complaint refers if the document is central to the party's claims and its authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may also consider evidence subject to judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

         II. DISCUSSION

         A. Declaration of Robert A. Hyde

         Generally, the scope of review on a motion to dismiss for failure to state claims is limited to the contents of the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). There are, however, two exceptions to this rule. Id. First, a court may consider “material which is properly submitted as part of the complaint” on a motion to dismiss without converting the motion into a motion for summary judgment. Id. at 668. “If the documents are not physically attached to the complaint, they may be considered if the documents' ‘authenticity … is not contested' and ‘the plaintiff's complaint necessarily relies' on them.” Id. Second, under Federal Rule of Evidence 201, a court may take judicial notice of matters of public notice. Id. Courts may take judicial notice of some public records, including “records and reports of administrative bodies.” Interstate Natural Gas Company v. Southern California Gas Company, 209 F.2d 380, 385 (9th Cir. 1953).

         Defendant attached a declaration from Robert A. Hyde to its motion to dismiss. The declaration included three exhibits: (A) Stipulation and Order of Dismissal in King County Court and Stipulation of Dismissal and Order before Hearing Examiner for the City of Bellevue; (B) Plaintiff's Code Interpretation Application; and (C) Certification of Mailing dated July 8, 2016 from Defendant. Plaintiff's complaint referred to the judicially approved stipulations. Dkt. # 1 (Compl.) at ¶ 3.3.[1] The Court may therefore consider exhibit A when deciding the instant motion. The Court also considers Defendant's exhibits B and C attached to its motion to dismiss because Plaintiff's complaint ...


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