Andy's BP, Inc. v. City of San Jose

MEMORANDUM

Plaintiff Andy’s BP, a gas station in San Jose, competes for business with a gas station across the street, Moe’s Stop. Plaintiff brought a section 1983 suit, alleging that the City of San Jose illegally favored Moe’s Stop by issuing citations against Andy’s BP that it did not issue against Moe’s Stop, and by ignoring evidence showing that Moe’s Stop had violated the terms of its conditional use permit. The district court dismissed the complaint with prejudice. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s decision to dismiss, and we review for abuse of discretion the district court’s decision to deny leave to amend. We affirm.

“[A]n equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called ‘class of one.’ ” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 , 128 S.Ct. 2146 , 170 L.Ed.2d 975 (2008). “To succeed on [a] ‘class of one’ claim, [Plaintiff] must demonstrate that the [City]: (1) intentionally (2) treated [Plaintiff] differently than other similarly situated [persons], (3)…