1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HARI SHETTY, et al., No. 2:22-cv-00534-JAM-JDP 12 Plaintiffs, 13 v. ORDER GRANTING DEFENDANT’S

MOTION TO DISMISS

14 CITY OF FOLSOM, 15 Defendant. 16 17 This matter is before the Court on Defendant’s motion to 18 dismiss (“MTD”). See Mot. to Dismiss (“Mot.”), ECF No. 7. 19 Plaintiffs oppose the motion. See Opp’n, ECF No. 10. Defendant 20 replied. See Reply, ECF No. 11. Plaintiffs brought seven claims 21 (three under federal law and four under California state law) 22 against Defendant. See First Amended Complaint (“FAC”), Ex. AS 23 to Notice of Removal, ECF No. 2-15. For the reasons set forth 24 below, the Court GRANTS Defendant’s motion to dismiss.1 25 I. BACKGROUND 26 Plaintiffs allege that Defendant City’s at-large election 27

28 1 The matter was heard on June 28, 2022. 1 system discouraged candidates from minority neighborhoods and 2 reduced voter participation in Asian and Latino communities in 3 violation of state and federal laws. FAC ¶¶ 20-23. Plaintiffs 4 notified Defendant’s City Council by mail that the City’s at- 5 large election system violated the California Voter Rights Act. 6 FAC ¶ 15. Plaintiffs filed suit in Sacramento Superior Court on 7 December 31, 2020. See Notice of Removal at 1, ECF No. 1. Since 8 then, Defendant City has adopted Ordinance No. 1324, officially 9 transitioning to a by-district election system as of March 22, 10 2022. Opp’n at 4. Defendant City removed the case to this Court 11 and moved to dismiss Plaintiffs’ claims. See Notice of Removal. 12 II. OPINION 13 A. Judicial Notice 14 Defendant requests judicial notice of five documents in 15 support of its motion to dismiss. See Request for Judicial 16 Notice (“RJN”), ECF No. 8. Exhibits 1-5 are ordinances or 17 reports prepared or issued by governmental or administrative 18 bodies. Matters of public record are appropriate for judicial 19 notice. See Abdullah v. U.S. Secur. Associates, Inc., 731 F.3d 20 952, 959 n. 10 (9th Cir. 2012) (holding that records and reports 21 of administrative bodies are judicially noticeable). The Court 22 takes judicial notice of Exhibits 1-5 as public records. 23 B. No Rule 12(g) Preclusion 24 Plaintiffs argue the Court should deny Defendant’s motion 25 to dismiss as precluded by Rule 12(g)’s limitation on further 26 motions: “[A] party that makes a motion under this rule must not 27 make another motion under this rule raising a defense or 28 objection that was available to the party but omitted from its 1 earlier motion.” Fed. R. Civ. P. 12(g)(2). Plaintiffs contend 2 that Defendant improperly raises defenses and objections 3 available to it at the time of its second motion to dismiss. 4 Opp’n at 7-8. 5 Plaintiffs’ argument fails because Defendant’s so-called 6 “second motion to dismiss” was a motion filed in state court 7 prior to removal. Opp’n at 3-4; Reply at 6. Defendant filed 8 its state court motion under California Code of Civil Procedure 9 Section 581. Reply at 6. It follows that Defendant’s state 10 court motion was not a Federal Rule 12 motion and therefore does 11 not work to preclude Defendant’s present motion to dismiss. The 12 Court finds no Rule 12(g) preclusion. 13 C. Legal Standard 14 When a plaintiff fails to “state a claim upon which relief 15 can be granted,” the Court must dismiss the suit. Fed. R. Civ. 16 P. 12(b)(6). To defeat a motion to dismiss, a plaintiff must 17 “plead enough facts to state a claim to relief that is plausible 18 on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 19 (2007). Plausibility under Twombly requires “factual content 20 that allows the Court to draw a reasonable inference that the 21 defendant is liable for the misconduct alleged.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009). 23 D. Analysis 24 Defendant moves to dismiss Plaintiffs’ FAC for failure to 25 state a claim under Federal Rule of Civil Procedure 12(b)(6). 26 Mot. at 3. As discussed below, the Court finds Plaintiffs’ 27 federal claims, two, five, and seven, appropriate for dismissal 28 with prejudice. 1 Plaintiffs’ second claim alleges violation of the Federal 2 Voting Rights Act (“FVRA”). The FVRA forbids the imposition or 3 application of any practice that would deny or abridge, on 4 grounds of race or color, the right of any citizen to vote. 5 42 U.S.C. § 1873. After Congress amended the FVRA in 1982, 6 courts have held that a plaintiff may state a claim for 7 violation of the FVRA by alleging “intentional discrimination in 8 the drawing of district lines [or] a facially neutral 9 apportionment scheme that has the effect of diluting minority 10 votes.” Garza v. County of Los Angeles, 918 F.2d 763, 766 (9th 11 Cir. 1990). For FVRA claims other than intentional 12 discrimination, the Supreme Court in Gingles laid out three 13 preconditions for liability: (1) geographical compactness of the 14 minority group; (2) minority political cohesion; and 15 (3) majority block voting. Thornburg v. Gingles, 478 U.S. 30, 16 50-51 (1986). 17 Plaintiffs concede that their allegations do not meet the 18 Gingles preconditions. Opp’n at 9. Further, Plaintiffs have 19 failed to allege sufficient facts to support a claim for 20 intentional discrimination in violation of the FVRA. Although 21 the Court must accept as true all allegations contained in the 22 complaint, the Court need not accept as true any legal 23 conclusions couched as factual allegations. Iqbal, 556 U.S. at 24 678. The Court dismisses Plaintiffs’ second claim under the 25 FVRA for failure to state a claim for which relief may be 26 granted. 27 Plaintiffs’ fifth claim alleges intentional voter dilution 28 based on race in violation of the Equal Protection Clause. FAC 1 ¶ 86. Plaintiffs also allege Defendant violated the Fourteenth 2 amendment requirement for “substantial equality of population 3 among districts.” FAC ¶ 87. To make out a claim for violation 4 of the Equal Protection Clause, Plaintiffs must make a prima 5 facie case of discrimination. The existence of minor deviations 6 among legislative districts below 10% variance is insufficient 7 to make out a prima facie case of discrimination. Brown v. 8 Thomson, 462 U.S. 835, 842 (1983). 9 Plaintiffs have not alleged sufficient facts to support a 10 claim for intentional discrimination. Plaintiffs also have not 11 alleged that the total deviation exceeds 10 percent. As such, 12 Defendant is entitled to a presumption of compliance with the 13 Fourteenth Amendment. Because Plaintiffs have not raised any 14 facts that would challenge this presumption, Plaintiffs have 15 failed to carry their burden of establishing either an 16 intentional discrimination claim or a prima facie case of 17 discrimination under the Equal Protection Clause. The Court 18 dismisses this claim for failure to state a claim upon which 19 relief may be granted. 20 Plaintiffs’ seventh claim alleges municipal liability under 21 § 1983, otherwise known as Monell liability. Monell v. Dep’t of 22 Soc. Servs., 436 U.S. 658, 690 (1978). Plaintiffs have failed 23 to allege sufficient facts satisfying the elements for municipal 24 liability under Monell. Plaintiffs’ opposition states only that 25 “the claim for damages under 1983 is dependent upon the prior 26 federal claims.” Opp’n 11. Thus, because those prior federal 27 claims have been dismissed, there is nothing else in the FAC to 28 support a Monell claim. The Court dismisses this claim for 1 failure to state a claim for which relief may be granted. 2 The Court also finds amendment of claims two, five, and seven 3 would be futile and therefore dismisses these claims with 4 prejudice. Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 5 1043, 1049 (9th Cir. 2006) (finding dismissal with prejudice 6 appropriate when amendment is futile). 7 E. Supplemental Jurisdiction 8 A district court may sua sponte decline to exercise 9 supplemental jurisdiction over pendant state law claims if it 10 “has dismissed all claims over which it has original 11 jurisdiction.” 28 U.S.C. § 1367(c)(3). Having dismissed claims 12 two, five, and seven, the Court declines to exercise 13 supplemental jurisdiction over the remaining state law claims.2 14 F. Improper Filing 15 Plaintiffs filed an ex parte application to remand this 16 case at ECF No. 36 following the Court’s June 28, 2022 hearing. 17 The Court did not authorize such a response. The Court did not 18 consider Plaintiffs’ improper filing in resolving the present 19 motion to dismiss. The Court STRIKES from the Docket 20 Plaintiffs’ filing at ECF No. 36 and their supplementary filing 21 at ECF No. 37 as improper briefs. 22 III. ORDER 23 For the reasons set forth above, the Court GRANTS 24 Defendant’s Motion to Dismiss with prejudice as to claims two, 25

26 2 As indicated at hearing, the Court is persuaded that Plaintiffs’ CVRA claim is mooted by Defendant City’s transition 27 to a by-district election system, but, having declined supplemental jurisdiction, the Court leaves the matter to its 28 proper resolution by the Superior Court. nnn enn mn en ee nn nn nn nn nn ne

1 five, and seven. The Court declines supplemental jurisdiction 2 over the remaining state law claims. 3 IT IS SO ORDERED. 4 Dated: July 13, 2022 5 6

JOHN A. MENDEZ

8 SENIOR UNITED*STATES DFSTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28