YVONNE GONZALEZ ROGERS, District Judge.
Plaintiffs Riana Buffin and Crystal Patterson, on behalf of themselves and all others similarly situated, bring this civil rights action against defendants the City and County of San Francisco (the "County"), Vicki Hennessy in her official capacity as the County's Sheriff (the "Sheriff"), and Kamala Harris in her official capacity as the Attorney General (the "Attorney General") for the State of California (the "State"). Plaintiffs bring a single count against the County, the Sheriff, and the Attorney General for violation of their Fourteenth Amendment equal protection and due process rights when the Sheriff enforces state law by keeping them in jail before arraignment solely because they cannot afford to pay money bail. Specifically, plaintiffs challenge defendants' enforcement of California Penal Code section 1269b, which provides that a sheriff may only collect bail from pre-arraignment arrestees in the amount fixed, inter alia, in the schedule of bail set by the superior court judges sitting in and for that county.
Based thereon, plaintiffs seek declaratory and injunctive relief on behalf of themselves and putative class members. The named plaintiffs additionally seek monetary damages, attorneys' fees, and costs from defendants. Defendants move under Rule 12(b)(6) to dismiss the single count in the Third Amended Complaint ("3AC"), arguing plaintiffs fail to state a cognizable claim for relief under the Fourteenth Amendment as to each of them. Additionally, the California Bail Agents Association ("CBAA") moves to intervene as a defendant. Having carefully considered the papers submitted and the pleadings in this action, and for the reasons discussed below, the Court
The County police arrested plaintiff Riana Buffin on October 26, 2015 for grand theft of personal property from a department store and conspiracy. (Dkt. No. 71, "3AC," ¶ 27.) Plaintiff Buffin was taken to jail and she was informed that her bail was set at $30,000. (Id. ¶ 28.) Late in the evening of October 28, 2015, after approximately 46 hours in jail, plaintiff Buffin was released when the District Attorney's office decided not to file formal charges against her. (Id. ¶ 31.)
With respect to plaintiff Crystal Patterson, she was arrested on October 27, 2015 by the County police for assault with force causing great bodily injury. (Id. ¶ 33.) The police took her to jail where she was told that her bail was set at $150,000. (Id. ¶ 34.) After approximately 31 hours in jail, plaintiff Patterson posted bail through a private bond company. (Id. ¶ 37.) Following her release, the case against plaintiff Patterson was discharged and no formal charges were filed against her. (Id. ¶ 38.) Named plaintiffs make no allegation that their bail amounts were set by the Sheriff other than in conformance with the County's bail schedule set by state judges on the California Superior Court sitting in and for the City and County of San Francisco (the "Superior Court").
In California, state law imposes a duty on superior court judges to "prepare, adopt, and annually revise a uniform countywide schedule of bail" for all bail-eligible offenses except Vehicle Code infractions. Cal. Pen. Code § 1269b(c). In San Francisco, the Superior Court establishes the felony and misdemeanor bail schedule. (Id. ¶ 44.) The Sheriff determines an arrestee's bail amount by reference to the bail schedule; she is authorized to release arrestees from the County's jail prior to appearance in front of a judicial officer
Plaintiffs filed their original complaint on October 28, 2015 against the County and "the State of California" generically. (Dkt. No. 1.) They concurrently filed an emergency motion for temporary restraining order and preliminary injunction for the immediate release of named plaintiffs and all putative class members from the County's jail (Dkt. No. 2), as well as a motion to certify their proposed class (Dkt. No. 7). The Court denied the motion for temporary restraining order, finding plaintiffs had not established they were entitled to the affirmative relief sought. (Dkt. No. 13.) The Court then set a schedule for the parties to brief the pending motions for preliminary injunction and for class certification, as well as defendants' anticipated motions to dismiss. (Dkt. No. 19.)
The County and the State moved to dismiss the complaint on Rule 12 grounds, namely arguing: (1) the State was entitled to sovereign immunity under the Eleventh Amendment, and (2) Younger abstention applied such that the Court should not consider any of plaintiffs' claims. (Dkt. Nos. 20, 26.) Plaintiffs implicitly conceded that the State was entitled to sovereign immunity, and the Court granted the State's motion on that ground. (Dkt. No. 55 at 3.) With respect to defendants' Younger argument, the Court found the comity doctrine did not apply because there was no ongoing state proceeding when plaintiffs filed their complaint. (Id. at 3-8.) Thus the case could proceed against the County. The Court did agree with the County, however, that plaintiffs' complaint had "analytical, legal, and factual gaps" such that they should be ordered to provide a more definite statement on their claims and requests for relief under Rule 12(e). (Id. at 8-9.) Given the unintelligible nature of plaintiffs' complaint, the Court otherwise denied without prejudice plaintiffs' pending motion for preliminary injunction and motion for class certification. (Id. at 9-10.) For similar reasons, the Court found that the motion to intervene brought by CBAA was premature. (Id. at 10.)
Plaintiffs' amended complaints followed. (See Dkt. No. 58, "FAC," Dkt. No. 62, "SAC.") By agreement of the parties, the County did not respond to plaintiffs' FAC, and plaintiffs instead filed the SAC. (See Dkt. No. 61.) The County then moved to dismiss the SAC under Rule 12(b)(6), or in the alternative, for a more definite statement under Rule 12(e). (Dkt. No. 63.) Plaintiffs filed a motion for leave to file a surreply, which in part sought leave to amend to cure the concerns raised by the County in its motion. (Dkt. No. 69.) To promote judicial efficiency, the Court allowed plaintiffs to file the portion of the surreply containing the request for leave to amend and directed plaintiffs to file the 3AC. (Dkt. No. 70.)
The 3AC adds the Sheriff and the Attorney General as defendants in this action for the first time. (3AC ¶¶ 12, 23.) Plaintiffs allege that the Sheriff is an officer of the County, and in that capacity, is the final policymaker for the County with respect to its release and detention policy at its six jails. (Id. ¶¶ 12-16.) The Sheriff allegedly enforces discriminatory state bail laws based on her "exclusive authority to keep the county jail and the prisoners in it." (Id. ¶ 13) (citing Cal. Gov. Code § 26605.) Plaintiffs seek to enjoin the Sheriff from enforcing the California state law requiring her to use secured money bail after arrest, which, in plaintiffs' view, results in wealth-based discrimination against class members. (Id. ¶ 18, Requests for Relief b, c.) With respect to the Attorney General, plaintiffs allege that, in her official capacity as the chief law enforcement officer in California, she "requires the Sheriff to impose bail pursuant to a bail schedule, thereby creating a wealth-based detention scheme." (Id. ¶ 23) (citing Cal. Pen. Code § 1269b.) Plaintiffs similarly request relief enjoining the Attorney General from requiring use of money bail for indigent detainees in the County's jails. (Id. at Request for Relief d.)
Now pending before the Court are defendants' motions to dismiss pursuant to Rule 12(b)(6) and CBAA's second motion to intervene. (Dkt. Nos. 76, 77, 81.)
The County, the Sheriff, and the Attorney General move to dismiss under Rule 12(b)(6), arguing plaintiffs fail to state a claim under the Fourteenth Amendment as to each of them in the 3AC. The County and the Sheriff principally argue that no claim exists against them because the Sheriff acts on behalf of the State, not the County, when she enforces the bail schedule. The Attorney General argues the claims against her should be dismissed or stayed because they are duplicative of claims filed against her in a case pending in the Eastern District of California. Alternatively, the Attorney General argues she is immune from suit under the Eleventh Amendment and the exception thereto as announced in Ex Parte Young does not apply here. The Court considers each of these arguments in turn:
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). All allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The County argued in its previous motion to dismiss that the SAC failed to state a claim against it because the Sheriff acts on behalf of the State when she implements the State's money bail system; the system is not a municipal policy or practice. The Court recognized the County's concerns as valid and allowed plaintiffs another opportunity to amend their complaint. The 3AC then supplemented to include the Sheriff and the Attorney General as additional defendants.
Consistent with its prior arguments for dismissal, the County and the Sheriff maintain that the Sheriff is a state actor when she enforces the money bail system against arrestees. They argue the Sheriff is entitled to Eleventh Amendment immunity from suit and the County cannot be held liable for her acts done on behalf of the State. Plaintiffs oppose, contending that the Sheriff is a county official in her capacity as a jailor, including her pre-arraignment release and detention decisions.
The Supreme Court instructs federal courts to conduct a case-by-case analysis focusing on state law and a sheriff's actions at issue when determining whether to construe a sheriff as a state actor or county actor. McMillian v. Monroe Cty., Alabama, 520 U.S. 781, 785-86 (1997). When announcing the appropriate framework in McMillian, the Supreme Court cautioned that the question is not whether the Sheriff acted for the state or county "in some categorical, `all or nothing' manner." Id. at 785. Rather, in deciding the issue, courts are guided by two principles: (1) "whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue," and (2) analysis of state law focused on "the definition of the official's functions under relevant state law." Id.; see also Brewster v. Shasta Cty., 275 F.3d 803, 806 (9th Cir. 2001). To determine if the Sheriff is a policymaker for the County in this context (principle one), the Court must "ask whether Sheriff [Hennessey] represents the State or the [C]ounty when" she detains a person who is unable to pay the bail amount set by the Superior Court. McMillian, 520 U.S. at 785-86. When analyzing state law (principle two), the Court must look beyond any state law simply labeling the Sheriff as a municipal or state official, and examine "the actual function of a governmental official, in a particular area" of her authority. Id. at 786.
The Ninth Circuit has addressed this topic as to California sheriffs three times since the Supreme Court announced the McMillian framework. In each decision, the Ninth Circuit conducted an analysis unique to the circumstances and concluded that the sheriffs acted on behalf of the county in each particular context. The decisions are summarized as follows:
The Ninth Circuit first addressed the issue under the McMillian framework in Streit v. Cty. of Los Angeles, 236 F.3d 552, 559-65 (9th Cir. 2001). In Streit, the question was whether:
Id. at 555. Following an exhaustive analysis of relevant provisions in California state law, the Streit court concluded that the LASD acts on behalf of the county when administering local jails' release policy. The court found that the California Constitution, California Government Code, and the county's own code "lead inexorably to the conclusion that the LASD is tied to the County in its political, administrative, and fiscal capacities." Id. at 562. In particular, the court looked to its determinations that "there is no provision in the California Constitution that states that the LASD acts for the state when managing the local jails," the California and county codes provide that the county pays monetary damages for section 1983 claims against the LASD, and the county code reflects that the county board of supervisors "retains budgetary oversight and control over the LASD." Id. at 562.
Turning to the particular function at issue, the court emphasized that merely framing the function as LASD's over-detention of a prisoner in the county jail was not dispositive. Decisions to detain a prisoner can be both administrative functions performed for the county, while others are made on behalf of California. The court made a "critical" distinction between a challenge to a sheriff department policy of "[s]earching for wants and holds that may or may not have been issued for person whom the state has no legal right to detain," on the one hand, and challenges to a sheriff's detention of a prisoner based on a "facially-valid warrant" on the other. Id. at 564. The court viewed the former challenge, at issue in Streit, as one to the "administrative function of jail operations for which the LASD answers to the County." Id. By contrast, acting upon a facially-valid warrant is part of a sheriff's "law enforcement function with which the LASD is tasked under California state law." Id. Thus, after "examining the precise function at issue in conjunction with the state constitution, codes, and case law, [the court] conclude[d] that the LASD acts as the final policymaker for the county when administering the County's release policy and not in its state law enforcement capacity." Id. at 564-65.
Next, in Brewster, the Ninth Circuit was faced with whether a California sheriff acts for the county or state when investigating a crime in the county. Brewster, 275 F.3d at 805-12. The Brewster court heavily relied on the reasoning in Streit to conclude that a sheriff acts as a county official when investigating crime. Id. at 807 ("It requires little extension of Streit for us to conclude that the [sheriff] acts for the County, not the state, when investigating a crime in the county.") The court noted that the same provisions in the California Constitution and Code relied on by the Streit court applied equally in Brewster. The Brewster court rejected the county's arguments that additional state law provisions required a different outcome when considering a sheriff's investigatory functions rather than execution of a jail release policy. First, reliance on Article V, section 13, of the California Constitution placing sheriffs under the "direct supervision" of the Attorney General "would prove too much, as the California Constitution permits the Attorney General to supervise all other law enforcement officers as may be designated by law." Id. at 809 (internal quotations omitted). Second, the court viewed a statutory provision "prohibit[ing] a county board of supervisors from obstructing the investigative function of the sheriff," as "akin to a separation of powers provision, and as such [had] no bearing" on the relevant inquiry. Id. at 810-11 (analyzing Cal. Gov. Code § 25303). Finally, the court was similarly unpersuaded by the county's arguments that the sheriff is a state actor in investigating a crime because:
Id. at 811. In the court's view, these provisions did not show that the county was not given discretionary authority regarding law enforcement. "Unlike in Alabama [in McMillian,] however, in California, county boards of supervisors have authority to supervise the conduct of the sheriffs, including their law enforcement conduct, subject to the limitation that the board not obstruct the sheriff's investigation of crime." Id. The Brewster court thus concluded that a California sheriff acts on behalf of the county, not state, when investigating a crime within the county. Id. at 812.
Finally, in Cortez v. Cty. of Los Angeles, 294 F.3d 1186 (9th Cir. 2002), the Ninth Circuit held that a California sheriff acts as a county official "in establishing and implementing policies and procedures for the safekeeping of inmates in the county jail." Id. at 1187. The particular function at issue was the sheriff-established policy to segregate inmates identified as gang members. The Cortez court construed Streit as standing for the proposition that a "sheriff acts on behalf of the county when serving in his administrative capacity." Id. at 1189-90. In that regard, the court reasoned that Streit "resolve[d] the question," id. at 1189, presented in Cortez:
Id. at 1190. Moreover, even if the court adopted the county's view that the policy was established pursuant to the sheriff's duty to keep the peace, it would still have come to the same conclusion. Id. at 1191. The court reviewed Streit and Brewster, supra, to reject the county's position that a sheriff necessarily is a final policymaker for the state when executing law enforcement functions. The sheriff's policy to segregate gang members was "established pursuant to his authority as the administrator of the county jail and custodian of the inmates within it." Id. at 1192. His actions in enforcing the policy were therefore attributable to the county rather than the state.
The Court thus analyzes whether the Sheriff is properly classified as a state or county actor when she enforces the bail schedule set by the Superior Court in conformance with California state law.
Relevant here, and as alleged in the 3AC, Penal Code section 1269b(a) provides that a sheriff and her officers "may approve and accept bail . . . to issue and sign an order for the release of the arrested person. . . ." Id. § 1269b(a).
Federal district courts have distinguished Streit, Brewster, and Cortez, supra, to conclude that California sheriffs acted as representatives of the state, not a county, when detaining prisoners pursuant to a court order.
Id. at *4. Moreover, the district court emphasized that California Penal Code section 4004 requires a sheriff to keep a detainee in county jail "until legally discharged." Id. at *5 (quoting Cal. Pen. Code. § 4004). As such, the district court reasoned "it would make no sense to hold the sheriff liable for incarcerating individuals at the prosecutor's impetus," when the prosecutor herself is immune under well-established principles of prosecutorial immunity. Id. at 5; Smith v. Cty. of San Mateo, 1999 WL 672318, at *5 (N.D. Cal. Aug. 20, 1999) (applying McMillian framework to conclude on summary judgment that sheriff's incarceration of arrestee at county jail pursuant to bench warrant was on behalf of the state, not the county).
Likewise, in Munoz v. Kolender, 208 F.Supp.2d 1125, 1152-53 (S.D. Cal. 2002), the district court determined that a California sheriff acts on behalf of the state, not the county, when detaining a plaintiff in a county jail pursuant to court order. The district court distinguished Sreit as follows:
Id. at n. 31.
McNeely and Munoz both address the precise issue presented here: whether a California sheriff is a state or county actor when detaining arrestees at a county jail pursuant to a lawful state order. Together they highlight the critical distinction (first raised in Streit) between detention caused by a sheriff's own administrative policy, on the one hand, versus detention required by state law or court order, on the other. In both McNeely and Munoz, the district courts acknowledged that, in certain circumstances, the state law provisions relied upon by the Ninth Circuit in Streit support a conclusion that the sheriff is a county actor. However, the McNeely and Munoz decisions distinguished the circumstances from Streit to conclude that a California sheriff acts on behalf of the state — not the county — when the sheriff detains someone pursuant to state law rather than under an administrative policy set by the sheriff herself. The Court finds the reasoning of its sister courts persuasive.
California allows three alternative methods of release: "(1) citation (Pen. Code §§ 853.5, 853.6); (2) bail (Pen. Code § 1268 et seq.); or (3) own recognizance release (Pen. Code § 1318 et seq.)." Van Atta v. Scott, 27 Cal.3d 424, 430 (1980). The first
Although the San Francisco Superior Court is nominally designated as the County, it is an arm of the State. Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987) (a superior court's "geographical location within any particular county cannot change the fact that the court derives its power from the State and is ultimately regulated by the State"). As such, the Court concludes that the terms of release at issue are set wholly by the State, as the Superior Court establishes the bail schedule. The Sheriff is not acting on behalf of the County.
As noted, California law requires the Sheriff's conduct challenged by plaintiffs. The Penal Code provides her no discretion to alter the terms of release as she sees fit. Instead, the Sheriff must detain individuals lawfully in her custody unless a court order directs their release: "A prisoner committed to the county jail for examination . . . must be actually confined in the jail until legally discharged." Cal. Pen. Code § 4004 (emphasis supplied).
Plaintiffs make two additional arguments. First, plaintiffs attempt to characterize the Sheriff as a county actor because of her general capacity overseeing the jail. This fails under Ninth Circuit precedent. That the Sheriff may be a policymaker for the County in the establishment and administration of departmental policies affecting the conditions of confinement is not dispositive here. Cf. Streit v. Cty. of Los Angeles, 236 F.3d 552, 559-65 (9th Cir. 2001) (sheriff acts on behalf of county in administering its departmental records check policy before releasing detainee from county jail); Cortez v. Cty. of Los Angeles, 294 F.3d 1186 (9th Cir. 2002) (sheriff acts on behalf of county in "establishing and implementing policies and procedures for the safekeeping of inmates in the county jail."). The fact that the Sheriff has authority over the County's jails is not what drives the actions at issue. Rather, the function is driven exclusively by the State's non-discretionary mandate. See Cal. Pen. Code §§ 1268, 1269b(a), 1269b(c), 4004.
Plaintiffs next argue that the Sheriff does make decisions related to conditional release, including: (1) whether the arrestee tendered the bail amount as set by the Superior Court's adopted bail schedule, (2) the methods of payment accepted, (3) when arrestees are notified of the amount of bail, (4) whether arrestees receive a list of bail bond companies, and (5) when and how arrestees may contact persons to make arrangements to satisfy bail. Even if true, these decisions and procedures are not challenged by plaintiffs in this lawsuit and do not alter the Sheriff's lack of discretion in detaining a person who is unable to pay the bail amount set by the bail schedule. Said otherwise, plaintiffs have not tethered the Sheriff's policymaking authority on behalf of the County to the conduct at issue.
In sum, the Court concludes that defendant Sheriff Hennessey acts on behalf of the State when she detains a person based on his or her inability to pay the bail amount prescribed in the bail schedule as set by the Superior Court. As a state actor, the Sheriff is entitled to immunity from suit for money damages under the Eleventh Amendment and plaintiffs' request for such relief is barred thereby. However, to the extent plaintiffs seek declaratory or injunctive relief against the Sheriff for her allegedly unconstitutional conduct,
As to the County, however, the sole claim alleged fails. The State is the relevant actor when the Sheriff detains a person who does not pay bail and plaintiffs have not alleged a municipal policy or practice for which the County may be held liable. McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 783 (1997) (explaining that the county is liable for the sheriff's actions only if they constitute a county policy) (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978)). The County's motion to dismiss is
The Attorney General moves to dismiss on two separate grounds.
As discussed, supra, plaintiffs filed this putative class action on October 28, 2015 against the County and the "State of California" generically. On January 26, 2016, the Court held a hearing on defendants' pending motions to dismiss and for more definite statement, and indicated that the State would be dismissed because it was entitled to sovereign immunity. Plaintiffs conceded as much at the hearing. (Dkt. No. 57 at 4:21-22.) Three days later, on January 29, 2016, plaintiffs' counsel filed a substantially identical complaint on behalf of a similarly situated putative class in the Eastern District of California against Sacramento County and the Attorney General. See Case No. 2:16-cv-00185-TLN-DB ("Sacramento Docket" at No. 1.) Plaintiffs were given an opportunity to amend the complaint in this case, which they did on February 25, 2016 (FAC) and again on March 17, 2016 (SAC). Neither the FAC nor the SAC named the Attorney General as a defendant. Plaintiffs then requested to file a further amended complaint in response to the County's motion to dismiss the SAC, which the Court permitted. (See Dkt. No. 70.) The 3AC, filed May 27, 2016, named the Attorney General as a defendant for the first time. (See 3AC.) In the interim, the Attorney General filed a motion to dismiss the Sacramento litigation. (Sacramento Docket at No. 14.) On October 11, 2016, Judge Nunley issued an order granting in part the Attorney General's motion. (Sacramento Docket at No. 30.) The Sacramento litigation will proceed against the Attorney General for violation of the Due Process Clause Fourteenth Amendment.
A federal district court has discretion to dismiss, stay, or transfer a case to another district court under the first-to-file rule. Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982); Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 628 (9th Cir. 1991) ("The most basic aspect of the first-to-file rule is that it is discretionary."). The first-to-file rule is "a generally recognized doctrine of federal comity" permitting a district court to decline jurisdiction over an action. Inherent.com v. Martindale-Hubbell, 420 F.Supp.2d 1093, 1097 (N.D. Cal. 2006) (quoting Pacesetter, 678 F.2d at 94-95). The rule is primarily meant to alleviate the burden placed on the federal judiciary by duplicative litigation and to prevent the possibility of conflicting judgments. See Microchip Tech., Inc. v. United Module Corp., 2011 WL 2669627, at *3 (N.D. Cal. July 7, 2011). As such, the rule should not be disregarded lightly. Id. Courts analyze three factors in determining whether to apply the first-to-file rule: (1) chronology of the actions; (2) similarity of the parties; and (3) similarity of the issues. Id. (citing Alltrade, 946 F.2d at 625).
A district court may, in its discretion, decline to apply the first-to-file rule in the interests of equity. Adoma v. Univ. of Phoenix, Inc., 711 F.Supp.2d 1142, 1149 (E.D. Cal. 2010); Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D. Cal. 1994). Exceptions to the first-to-file rule include where the filing of the first suit evidences bad faith, anticipatory suits, and forum shopping. Alltrade, 946 F.2d at 628. The Ninth Circuit has cautioned that relaxing the first-to-file rule on the basis of convenience is a determination best left to the court in the first-filed action. Ward, 158 F.R.D. at 648 (citing Alltrade, 946 F.2d at 628).
Application of the first-filed rule without further briefing is inappropriate here. At the outset, whether this action was first-filed is a matter of serious contention. While it is beyond dispute that this case was filed before the Sacramento litigation, the parties agree that the Attorney General was first sued for similar claims in Sacramento. The case law suggests that the relevant inquiry is when the court "acquired jurisdiction over the [other] action, not the parties. . . . All this Court is concerned with is whether the [other district court] had the matter before it first. . . ." Intersearch Worldwide, Ltd. v. Intersearch Grp., Inc., 544 F.Supp.2d 949, 958 (N.D. Cal. 2008) (emphasis in original).
The Court has an insufficient record before it to determine whether plaintiffs' counsel, as opposed to plaintiffs themselves, engaged in forum shopping or conduct evidencing bad faith in how they pursued the two different actions. The Court directed plaintiffs to amend their complaint to add a suitable defendant to answer for their alleged constitutional harms in this litigation. The addition of the Attorney General as a defendant was plaintiffs' attempt to add an appropriate representative of the "State of California." Further, the relief plaintiffs seek against the Attorney General in this action is limited to enforcement of the bail system by the City and County of San Francisco — i.e., relief the plaintiff in the Sacramento litigation does not request.
Given the current record, the Court will not invoke the first-to-file rule to dismiss the Attorney General. The Attorney General's motion to stay or dismiss on this basis is
The Court previously dismissed plaintiffs' claims against the "State of California" as barred by the Eleventh Amendment. (See Dkt. No. 55 at 3.) Plaintiffs have now amended to sue the Attorney General in her official capacity as the chief law enforcement officer for the State. The Attorney General argues that the 3AC fails to state a claim against her as she is also entitled to Eleventh Amendment immunity from suit. Plaintiffs acknowledge that the Eleventh Amendment generally bars suit against the Attorney General in her official capacity. However, they invoke the exception first announced in Ex Parte Young, 209 U.S. 123 (1908), to argue immunity does not protect the Attorney General from prospective injunctive relief prohibiting her from enforcing an unconstitutional statute.
The exception to Eleventh Amendment immunity from suit under Ex Parte Young "allows citizens to sue state officers in their official capacities for prospective declaratory or injunctive relief . . . for their alleged violations of federal law." Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013) (internal quotations omitted) (alteration in original). The exception applies only where the state official has "some connection with the enforcement of the act." Ex Parte Young, 209 U.S. at 157; Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2014). The connection of the state official to the act at issue "must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." Coal. to Defend, 674 F.3d at 1134 (quoting Los Angeles Cty. Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)) (emphasis supplied).
Plaintiffs urge that Ex Parte Young applies because the Attorney General enforces the bail scheme vis-à-vis her authority to prosecute punishable violations of the California Penal Code's bail provisions. Plaintiffs primarily rely on the Ninth Circuit's analysis in Quebec, supra, for this proposition. 729 F.3d at 943. In Quebec, producers and sellers of foie gras brought an action seeking to enjoin the California Attorney General from enforcing a statutory provision banning the sale of their product as unconstitutionally vague. The Ninth Circuit recognized that, without more, the Attorney General's enforcement duties could not establish a "fairly direct" connection between the Attorney General and the challenged statute. Importantly, the statute banning the sale of foie gras also "expressly authorize[d] enforcement of the statute by district attorneys and city attorneys." Id. The Ninth Circuit held that this provision "giv[ing] district attorneys the authority to prosecute violations" of the challenged statute in combination with "the Attorney General's duty to prosecute as a district attorney establishes sufficient enforcement power for Ex Parte Young." Id. at 943-44.
The enforcement provision in Quebec is meaningfully distinct from the bail enforcement provision at issue in this case. In Quebec, the Ninth Circuit emphasized that the Attorney General had authority to prosecute anyone who violated the foie gras statute, including the plaintiffs in that case. In that respect, enjoining her from bringing such an enforcement action would protect those plaintiffs from the alleged injury of prosecution for violation of an unconstitutional statute. By contrast, the only enforcement provision which plaintiffs reference in the bail statute authorizes criminal punishment of an officer for the officer's failure to enforce the bail scheme, notably not the plaintiffs. Cal. Pen. Code § 1269a ("Any officer releasing any defendant upon bail otherwise than as herein provided shall be guilty of a misdemeanor.").
To determine whether the Ex Parte Young exception applies, the Court must consider the Attorney General's enforcement authority in the context of plaintiffs' injury alleged to arise therefrom. Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992) ("Absent a real likelihood that the state official will employ [her] supervisory powers against plaintiffs' interests, the Eleventh Amendment bars federal court jurisdiction.") (emphasis supplied). Here, plaintiffs' claims are based on the Sheriff's enforcement of the bail law against them. Nothing suggests that the Attorney General has, will, or can supplant the Sheriff in her routine and daily role of releasing arrestees based upon the bail schedule.
As alleged, this case is not about the Attorney General's enforcement — or threat of enforcement — of an unconstitutional law against plaintiffs or the putative class. Rather, as plaintiffs allege throughout the 3AC, the Sheriff is the actor responsible for enforcing the challenged state law in San Francisco. Ninth Circuit precedent makes clear that the Attorney General's role as the Sheriff's ultimate supervisor is not alone sufficient to bring suit against her in federal court for enforcement of the law by the Sheriff. Coal. to Defend, 674 F.3d at 1134 ("general supervisory power over the persons responsible" does not subject a state official to suit in federal court). Likewise, "[s]tate attorneys general are not invariably proper defendants in challenges to state criminal laws." Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir. 2004). The Court finds that the generic notion that the Attorney General can assist a district attorney in prosecuting crimes or enforcing the Penal Code is too remote to the function challenged in the 3AC. Thus plaintiffs have failed to allege a "fairly direct" connection between the Attorney General's actions or authority and plaintiffs' claims.
Accordingly, sovereign immunity bars the claims against the Attorney General and her motion to dismiss on this ground is
CBAA is a non-profit association of approximately 3,300 bail agents in California. CBAA moves to intervene under Rule 24 as a defendant in this action to represent the financial interest of its members to insure that the California bail system is not eliminated. Plaintiffs oppose, arguing CBAA does not meet the requirements for intervention under Rule 24. The named defendants do not take a position on CBAA's motion to intervene. (See Dkt. Nos. 85, 87.)
A person may move to intervene as of right pursuant to Rule 24(a) or under a permissive standard pursuant to Rule 24(b). A district court must grant intervention as of right under Rule 24(a)(2) to anyone who satisfies a four-factor test: (1) the applicant must assert a "significantly protectable" interest relating to the property or transaction that is the subject of the action; (2) the applicant's interest must be represented inadequately by the parties to the action; (3) disposition of the action without intervention may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's motion must be timely. Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998); Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1061 (9th Cir. 1997). Failure to satisfy any one of the requirements is fatal to the application, and a court need not reach the remaining elements if one of the elements is not satisfied. Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).
With respect to permissive intervention, the Court considers three factors pursuant to Rule 24(b)(1)(B), namely: (1) the applicant's claim or defense must share a common question of law or fact with the main action; (2) any independent grounds for jurisdiction over the claim or defense; and (3) timeliness. League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997); Fed. R. Civ. P. 24(b). Even where all the prerequisites are met, a district court has considerable discretion in ruling on the motion for permissive intervention. In re Benny, 791 F.2d 712, 721-22 (9th Cir. 1986). "In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3).
In addition, both intervention as of right and permissive intervention are subject to service and pleading requirements. Under Rule 24(c), a motion to intervene must be: (1) served on the parties as provided in Rule 5, and (2) accompanied by a pleading that sets out the claim or defense for which intervention is sought. The requirement in Rule 24(c) that a pleading be attached to the motion to intervene is relaxed in certain circumstances and the Ninth Circuit has approved of motions to intervene "without a pleading where the court was otherwise apprised of the grounds for the motion." Beckman Industries, Inc. v. Int'l Ins. Co., 966 F.2d 470, 474 (9th Cir. 1992).
Plaintiffs argue that the motion to intervene fails under Rule 24(c) because CBAA does not attach a pleading to its intervention motion. CBAA concedes it has not complied with Rule 24(c) and asks the Court to relax the pleading requirement because the Court is otherwise aware of the defenses CBAA intends to raise.
In narrow circumstances the Ninth Circuit has declined to impose a "technical" application of Rule 24(c). Beckman, 966 F.2d at 474 (citing Shores v. Hendy Realization Co., 133 F.2d 738, (9th Cir. 1943) (declining to enforce literal interpretation of earlier version of Rule 24)). In Beckman, the proposed intervenor sought to modify the terms of a protective order to gain access to deposition transcripts following resolution of the underlying action. Although the proposed intervenor did not attach a pleading to its motion, the district court granted intervention as the Rule 24 motion "describe[d] the basis for intervention with sufficient specificity to allow the district court to rule" thereon. Id. at 475. On that record the Ninth Circuit determined that Rule 24(c) was not a proper ground for reversal of the district court order granting intervention. Id.
Likewise, in Bushansky v. Armacost, the district court granted a motion to intervene despite the proposed intervenor's failure to comply strictly with Rule 24(c). 2014 WL 5335255, at *2 (N.D. Cal. Oct. 17, 2014). In that case, the proposed plaintiff intervenor filed his motion in response to a press release noting that the purported class action would be dismissed without prejudice as the current plaintiff was not proper. Id. The district court recognized that its previous order "invited intervention in [the] action premised on the existing complaint." Id. Indeed, the district court had "ordered the parties to provide express notice to [purported class members] to allow them to intervene, and that notice identified this case and included an explanation of the causes of action alleged in the complaint." Id. Additionally, the district court found "that the original complaint was incorporated by reference into his request to intervene and thus that the [district court was] aware of the grounds for intervention." Id. Thus, the district court found that it and the parties were adequately "apprised of the grounds" for the request to intervene as Rule 24(c) envisions. Id.; accord Dixon v. Cost Plus, 2012 WL 2499931, at *6 (N.D. Cal. June 27, 2012) (granting motion to intervene where proposed plaintiff intervenor "specifically state[d] that intervention [was] sought on claims already included" in the operative complaint).
Here, the Court understands CBAA's financial interest in the State's bail system. However, how those issues relate to the constitutionality of the State's bail law provisions remains elusive. CBAA indicates it intends to file a response to the operative complaint following this Court's ruling on the pending motions to dismiss, relying on the Ninth Circuit's decision in Beckman and district court orders including Bushansky. Those cases are distinguishable. In Beckman, the proposed intervenor sought to modify a protective order in a closed case and did not seek to assert claims or defenses in the action. In Bushansky, the proposed intervenor sought to assert the same claims in the operative complaint and incorporated that pleading by reference into his motion to intervene. CBAA has not presented any reason for the Court to relax the Rule 24(c) pleading requirement in this instance and allow CBAA to delay explaining the defenses it intends to assert, especially in light of the complex constitutional issues presented by plaintiffs in this case. The Court requires a proposed responsive pleading from CBAA to assess adequately whether intervention is appropriate. Moreover, by this Order, the Court resolves the motions to dismiss.
Accordingly, the Court
Based upon the foregoing, the Court rules on the pending motions as follows:
Accordingly, the 3AC properly alleges a single claim against the Sheriff in her official capacity for prospective declaratory and injunctive relief for her alleged violation of plaintiffs' Fourteenth Amendment rights. The Sheriff shall file her answer to the 3AC no later than
While the Court is not convinced that an appropriate claim can be stated, to the extent plaintiffs seek to file a fourth amended complaint against the Attorney General consistent with this Order and Rule 11, plaintiffs shall file the same by
The Court hereby
This Order terminates Docket Numbers 76, 77, and 81.
