Lemongas Enterprises, Inc. v. The City of Bakersfield ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEMONGAS ENTERPRISES, INC., et al. Case No. 1:23-cv-0404 JLT CDB 12 Plaintiffs, ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS 13 v. GRANTING THE MOTION TO DISMISS BY THE CITY OF BAKERSFIELD AND 14 THE CITY OF BAKERSFIELD, et al. CITY OF BAKERSFIELD POLICE DEPARTMENT WITHOUT LEAVE TO 15 Defendants. AMEND (Doc. 20) 16 ORDER TO PLAINTIFFS TO SHOW CAUSE 17 WHY THE ACTION AS TO THE BUREAU 18 OF LAND MANAGEMENT SHOULD NOT BE DISMISSED; ORDER STRIKING THE 19 PROOF OF SERVICE AS TO THE BUREAU OF LAND MANAGEMENT 20 Lemongas Enterprises, Inc. and Randeep S. Dhillon initiated this action by filing a 21 complaint against the City of Bakersfield, Bakersfield Police Department, and the U.S. 22 Department of Interior, Bureau of Land Management. (Doc. 1). The City and BPD filed a 23 motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(1) and 12(b)(6), motion to strike pursuant to 24 Fed. R. Civ. Pro. 12(f), and a request for judicial notice. (Docs. 10-11.) 25 The assigned magistrate judge found this Court lacks subject matter jurisdiction over the 26 action. (Doc. 20.) Therefore, the magistrate judge recommended the motion to dismiss under 27 Rule 12(b)(1) be granted and the remaining motions be denied as moot. (Id. at 3-7.) In addition, 1 the magistrate judge found leave to amend would be futile because the identified defects could 2 not be cured with amendment, and recommended dismissal be without leave to amend. (Id. at 7.) 3 The Findings and Recommendations were served on June 29, 2023, and it notified the 4 parties that any objections must be filed within 14 days of the date of service. (Doc. 20 at 8.) 5 The Court also informed the Plaintiffs that the “failure to file objections within the specified time 6 may waive the right to appeal the District Court’s order.” (Id., citing Wilkerson v. Wheeler, 772 7 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) 8 Plaintiffs did not file objections or otherwise respond to the Findings and Recommendations, and 9 the deadline to do so has passed. 10 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review. Having 11 carefully reviewed the entire matter, the Court concludes the Findings and Recommendations are 12 supported by the record and by proper analysis as to the motions filed by the City of Bakersfield 13 and the Bakersfield Police Department. 14 However, the Court disagrees that amendment of the complaint as to the Bureau of Land 15 Management is futile. Even still, the Court expresses significant doubt as to whether the 16 complaint can be cured. First, as noted in the Findings and Recommendations, the Bureau of Land 17 Management is not a proper party to this action. (Kennedy v. U.S. Postal Serv., 145 F.3d 1077 18 (1998)). Second, even if the BLM were a proper party—and it is not—there are no factual 19 allegations as to this defendant that could give rise to liability. The thrust of the complaint is the 20 damage inflicted on the subject property by the Bakersfield Police Department. (Doc. 1 at 5, ¶¶ 21 19-26) At most, the complaint asserts that the subject property was surrounded by agricultural and 22 forest land, but exactly how this implicates the Bureau of Land Management is not explained by 23 factual allegation or by reference to any regulation or statute defining the scope of the agency’s 24 authority. Finally, the plaintiff has failed to serve the summons and complaint properly. Fed. R. 25 Civ. P. 4(i). Accordingly, the Court ORDERS: 26 1. The Findings and Recommendations dated June 29, 2023 (Doc. 20) as to the City 27 of Bakersfield and the Bakersfield Police Department are ADOPTED in full. 1 2. Defendants’ motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of 2 Civil Procedure (Doc. 10) is GRANTED. 3 3. Defendants’ motion to dismiss pursuant to Rule 12(b)(6) and motion to strike 4 pursuant Rule 12(f) (Doc. 11) are denied as MOOT. 5 4. Plaintiffs’ complaint is DISMISSED as to the City of Bakersfield and the City of 6 Bakersfield Police Department without leave to amend. 7 5. The Court DECLINES to adopt the findings and recommendations as to the 8 Bureau of Land Management. Instead, within 14 days, the plaintiffs are 9 ORDERED to show cause in writing why the action should not be dismissed in its 10 entirety given the defects in the complaint as to the Bureau of Land Management, 11 which cast doubt as to the Court’s jurisdiction. Failure to comply will result in the 12 Court dismissing the action with prejudice. 13 6. The proofs of service purporting to accomplish service on to the Bureau of Land 14 Management (Doc. 7) are STRICKEN. 15 16 IT IS SO ORDERED. Dated: _ July 18, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28