United States District Court, D. Oregon
TAI N. DANG, et al., Plaintiffs,
CITY OF ROCKAWAY BEACH, Defendant.
Michael H. Simon United States District Judge
Tai N. Dang, Hue P. Le, and Tue Nguyen
(“Plaintiffs”) assert two federal and two state
claims against Defendant City of Rockaway Beach (“the
City”). ECF 1. The claims relate to the City's
denial of Plaintiffs' request to place
“riprap” (a foundation or sustaining wall made of
stones) on Plaintiffs' real property located in Rockaway
Beach, Oregon. The federal claims Plaintiffs allege are a
Fifth Amendment takings and a race-based discrimination
claim. The state claims allege negligence and inverse
condemnation. ECF 1. The City has moved to dismiss all claims
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. ECF 6. For the reasons that follow, the Court
grants the motion in part and denies it in part.
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may
not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). The court must draw all reasonable
inferences from the factual allegations in favor of the
plaintiff. Newcal Indus. v. Ikon Office Solution,
513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not,
however, credit the plaintiff's legal conclusions that
are couched as factual allegations. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009).
complaint must contain sufficient factual allegations to
“plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr, 652 F.3d at 1216. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Mashiri v. Epstein Grinnell & Howell, 845 F.3d
984, 988 (9th Cir. 2017) (quotation marks omitted).
the City filed its motion to dismiss, the Supreme Court
issued its decision in Knick v. Township of Scott,
Pennsylvania, 139 S.Ct. 2162 (2019). Because of that
decision, the City withdrew its argument that Plaintiffs'
takings claim should be dismissed. ECF 16. The Court
therefore proceeds to the City's other arguments.
Race-based Discrimination Claim
assert in their fourth claim that “[i]n January 2018,
Plaintiff Dang learned that the City's actions in
refusing to allow Plaintiffs to protect the home on
Plaintiffs' Property were motivated by racial and ethnic
animus against one or more Plaintiffs.” ECF 1.
Plaintiffs make no further factual allegations in support of
their discrimination claim. A complaint is insufficient if it
tenders “naked assertions” devoid of
“further factual enhancement.” Twombly,
550 U.S. at 557. Plaintiffs argue that they have adequately
alleged a discrimination claim, but request in the
alternative that Plaintiffs be granted leave to plead
additional facts with regard to their claims of racial
discrimination. Because Plaintiffs' complaint lacks
sufficient factual allegations to state a facially plausible
claim for relief for Plaintiffs' fourth claim, that claim
is dismissed. Plaintiffs are granted leave to plead
additional facts about this claim within 14 days.
also bring state claims for negligence and inverse
condemnation. Plaintiffs concede that they have not pleaded
timely tort claim notice as required under the Oregon Tort
Claims Act (“OTCA”) for Plaintiffs'
negligence claim. See Urban Renewal Agency of City of
Coos Bay v. Lackey, 275 Or 35, 41 (1976) (en banc)
(“The pleading and proof of notice to satisfy the
requirements of ORS 30.275 is a mandatory requirement and a
condition precedent to recovery under the Oregon Tort Claims
Act.”) Plaintiffs' negligence claim is therefore
dismissed. Plaintiffs request leave to amend to plead timely
tort claim notice. Plaintiffs are granted leave to do so
within 14 days.
City's argument against Plaintiffs' other state claim
was premised on the argument that all of Plaintiffs'
federal claims should be dismissed. See Acri v. Varian
Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997)
(“[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors . . .
will point toward declining to exercise jurisdiction over the
remaining state-law claims.”). Because the City has
withdrawn its argument against Plaintiffs' takings claim,
that premise no longer applies. The Court therefore denies
the City's motion to dismiss Plaintiffs' inverse
City's Motion to Dismiss (ECF 6) is GRANTED in part and
DENIED in ...