United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
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.
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.
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.
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.
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.
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.
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).
Declaration of Robert A. Hyde
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).
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. 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