Roark V Richardson Bay Regional Agency Candce-22-07610 0029.0
Roark V Richardson Bay Regional Agency Candce-22-07610 0029.0
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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.
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
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.
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
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
2 III. ARGUMENT
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,
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
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
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
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.
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
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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
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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))