Case 3:22-cv-07610-WHO Document 29 Filed 04/14/23 Page 1 of 5

1 LEWIS BRISBOIS BISGAARD & SMITH LLP

CHRISTOPHER J. NEVIS, SB# 162812
2 E-Mail: [email protected]
DAVID E. RUSSO, SB# 112023
3 E-Mail: [email protected]
45 Fremont Street, Suite 3000
4 San Francisco, California 94105
Telephone: 415.362.2580
5 Facsimile: 415.434.0882

6 Attorneys for Defendant RICHARDSON BAY

REGIONAL AGENCY
7

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

10

11 ROBERT ROARK, Case No. 22-CV-07610-WHO

12 Plaintiff, DEFENDANT RICHARDSON BAY

REGIONAL AGENCY’S NOTICE OF
13 vs. MOTION AND MOTION TO DISMISS
PLAINTIFF’S FIRST AMENDED
14 RICHARDSON’S BAY REGIONAL COMPLAINT FOR FAILURE TO STATE
AGENCY; JAMES MALCOLM; STEVEN A CLAIM; MEMORANDUM OF POINTS
15 McGRATH, AND AUTHORITIES IN SUPPORT
THEREOF (Fed. R. Civ. P. 12(b)(6))
16 Defendants.
Date: May 24, 2023
17 Time: 2:00 p.m.
Dept.: Courtroom 2, 17th Floor
18
Trial Date: None Set
19

20 TO PLAINTIFF ROBERT ROARK, IN PRO PER:

21 PLEASE TAKE NOTICE, HEREBY GIVEN, that on May 24, 2023 at 2:00 p.m.,

22 defendant RICHARDSON BAY REGIONAL AGENCY will and hereby does move for dismissal

23 of plaintiff’s first amended complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the

24 grounds that the amended complaint fails to state a claim upon which relief may be granted. More

25 specifically, defendant will move for such relief on the basis that plaintiff’s amended complaint,

26 sounding in an unconstitutional taking under the Fourth and Fifth Amendments of the United
27 States Constitution, fails to allege sufficient facts to state such claims.

28 This motion will be based upon the pleadings on file herein, on any matters of which
LEWIS
BRISBOIS 93436513.1 Case No. 22-CV-07610-WHO
BISGAARD
& SMITH LLP DEFENDANT RBRA’S NOTICE OF MOTION AND MOTION TO DISMISS AMENDED COMPLAINT FOR
ATTORNEYS AT LAW FAILURE TO STATE A CLAIM (Fed. R. Civ. P. 12 (b)(6))
 Case 3:22-cv-07610-WHO Document 29 Filed 04/14/23 Page 2 of 5

1 judicial notice may be taken, and on any other matters properly considered at or before the hearing

2 of this motion.

3 MEMORANDUM OF POINTS AND AUTHORITIES

4 I. INTRODUCTION

5 On March 24, 2023, defendant filed its Motion to Dismiss the plaintiff’s complaint

6 pursuant to Federal Rule of Civil Procedure 12(b)(6). Nine days later, plaintiff filed an Amended

7 Complaint. Despite effort to expand the claims made, and the inclusion of some inflammatory

8 language, this amended pleading fares no better than the original complaint. The amended

9 complaint fails to state viable claims for relief against this defendant. It should be dismissed

10 without leave to amend.

11 This Court has noted in prior proceedings that plaintiff’s complaint purports to assert a

12 constitutional takings violation. The minimal requirement for such a claim would be allegations

13 that the government entity has entered an order or made a final decision with regard to the

14 supposed taking. In this case, no such allegation is viably made, nor could it be, given facts of

15 which the Court may take judicial notice. Consequently, plaintiff’s complaint is subject to

16 dismissal for failure to state a claim upon which relief may be granted. Because plaintiff cannot

17 validly allege any facts supporting his takings claim, the complaint should be dismissed with

18 prejudice.

19 II. PERTINENT ASPECTS OF THE COMPLAINT

20 As this Court noted in its Order denying a temporary restraining order, filed December 23,

21 2022, plaintiff’s original complaint, although inartfully pled, essentially sought to vindicate

22 purported constitutional rights under the Fourth and Fifth Amendments of the United States

23 Constitution as against an unlawful process, seizure, or taking. (This Court may take judicial

24 notice of its prior orders under Rule 201(b) of the Federal Rules of Evidence.) The same is true of

25 the amended complaint. The gravamen of plaintiff’s amended pleading, his essential grievance, is

26 that defendant has unconstitutionally tried to take his vessel.

27 As discussed below, because plaintiff’s amended complaint does not allege an actual

28 seizure of his property, or even an order or governmental decision for such seizure, he has not
LEWIS
BRISBOIS 93436513.1 2 Case No. 22-CV-07610-WHO
BISGAARD
& SMITH LLP DEFENDANT RBRA’S NOTICE OF MOTION AND MOTION TO DISMISS AMENDED COMPLAINT FOR
ATTORNEYS AT LAW FAILURE TO STATE A CLAIM (Fed. R. Civ. P. 12 (b)(6))
 Case 3:22-cv-07610-WHO Document 29 Filed 04/14/23 Page 3 of 5

1 alleged sufficient facts to state a claim for an unconstitutional taking.

2 III. ARGUMENT

3 There is no cognizable claim for an unconstitutional taking without allegation of a

4 governmental order or decision authorizing a taking, at a minimum. It is well established that a

5 takings claim may be ripe for adjudication either when seizure of property has occurred, or at a

6 minimum, when the governmental entity has arrived at a final decision regarding the property

7 rights. See, Horne v. Department of Agriculture, 576 U.S. 350, 360-362 (2015); see also, Pakdel

8 v. City and County of San Francisco, 141 S. Ct. 2226 (2021) (taking claim can ripen at least when

9 the government arrives at a final decision). Put another way, there must at least be an alleged

10 impending constitutional violation for a takings claim to have merit. See, City of Los Angeles v.

11 Lyons, 461 U.S. 95, 101 (1983); Babbitt v. United Farmworkers National Union, 442 U.S. 289,

12 298 (1979). No unconstitutional taking, pursuant to the Takings Clause of the Fifth Amendment,

13 can be asserted unless the government has authorized the physical invasion of property. See,

14 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005). Such an unconstitutional taking may

15 result from a regulatory action authorizing the intrusion, but that minimal requirement must be

16 alleged, even if a completed intrusion has not occurred. See, Cedar Point Nursery v. Hassid,

17 141 S. Ct. 2063, 2072 (2021).

18 Under these standards, plaintiff’s amended complaint cannot withstand challenge. The

19 complaint does not allege a physical taking, or even an attempted taking of plaintiff’s vessel.

20 Moreover, with one possible exception, the complaint does not allege that any notice was issued

21 for a seizure of plaintiff’s boat, nor an order issued for seizure, nor any final decision by a

22 governmental body authorizing the taking of the vessel. The amended complaint includes an

23 Exhibit C which is alleged to constitute a notice for taking of the vessel, but the face of the

24 document clearly shows that it does not relate to plaintiff’s vessel. Thus, plaintiff has not validly

25 alleged an attempted taking of his property.

26 Plaintiff also now offers up a funding document (Exhibits A and B), but those only reflect
27 that plaintiff’s boat is listed as a possible abandoned vessel. These documents, on their face, do

28 not reflect a government order or decision to seize the vessel. Lastly, plaintiff offers a notice he
LEWIS
BRISBOIS 93436513.1 3 Case No. 22-CV-07610-WHO
BISGAARD
& SMITH LLP DEFENDANT RBRA’S NOTICE OF MOTION AND MOTION TO DISMISS AMENDED COMPLAINT FOR
ATTORNEYS AT LAW FAILURE TO STATE A CLAIM (Fed. R. Civ. P. 12 (b)(6))
 Case 3:22-cv-07610-WHO Document 29 Filed 04/14/23 Page 4 of 5

1 received to comply with the rule for 72-hour anchoring limits (Exhibit F). The Court has seen this

2 in earlier proceedings. Nothing therein constitutes a taking, or even notice of threatened taking. It

3 is simply notice of the legal requirements for anchorage in the Bay.

4 Like the original complaint, the amended complaint essentially alleges nothing more than a

5 fear that a seizure might occur. Such an allegation will not support a takings claim under the

6 United States Constitution. Therefore, dismissal of the amended complaint is warranted.

7 IV. LEAVE TO AMEND SHOULD NOT BE GRANTED

8 Despite the usual liberality in allowing amendment, it would not be appropriate in this

9 instance. As this Court noted in its order filed December 8, 2022, defendant has not undertaken

10 any process to declare plaintiff’s vessel removable as marine debris, has not commenced any

11 proceedings to do so, and has not even contemplated such action. Judicial notice may be taken of

12 this adjudicative record pursuant to Federal Rule of Evidence 201(b). See, MGIC Indemnity Co. v.

13 Weisman, 803 F.2d 500, 505 (9th Cir. 1986). The amended pleading does nothing to overcome

14 the deficiency in plaintiff’s allegations. If allowed leave to amend further, plaintiff could not

15 legitimately allege any fact that would support a claim for unconstitutional taking of his property.

16 Allowing leave to amend would be fruitless and a waste of judicial resources.

17 There is, indeed, no controversy ripe for adjudication. No viable claim can be alleged

18 unless a case or controversy exists pursuant to Article III of the United States Constitution.

19 Perceived threats, hypotheticals, and prospective concerns are insufficient to establish a case or

20 controversy. See, Alabama State Federation of Labor v. McAdory (1945) 325 U.S. 450, 461. For

21 these reasons also, leave to amend should be denied.

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /
27 / / /

28 / / /
LEWIS
BRISBOIS 93436513.1 4 Case No. 22-CV-07610-WHO
BISGAARD
& SMITH LLP DEFENDANT RBRA’S NOTICE OF MOTION AND MOTION TO DISMISS AMENDED COMPLAINT FOR
ATTORNEYS AT LAW FAILURE TO STATE A CLAIM (Fed. R. Civ. P. 12 (b)(6))
 Case 3:22-cv-07610-WHO Document 29 Filed 04/14/23 Page 5 of 5

1 V. CONCLUSION

2 For all the foregoing reasons, defendant Richardson Bay Regional Agency respectfully

3 submits that its motion to dismiss the amended complaint, without leave to amend, should be

4 granted.

6 DATED: April 14, 2023 LEWIS BRISBOIS BISGAARD & SMITH LLP

8
By: /s/ David E. Russo
9 DAVID E. RUSSO
Attorneys for Defendant RICHARDSON BAY
10 REGIONAL AGENCY
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
27

28
LEWIS
BRISBOIS 93436513.1 5 Case No. 22-CV-07610-WHO
BISGAARD
& SMITH LLP DEFENDANT RBRA’S NOTICE OF MOTION AND MOTION TO DISMISS AMENDED COMPLAINT FOR
ATTORNEYS AT LAW FAILURE TO STATE A CLAIM (Fed. R. Civ. P. 12 (b)(6))