Bolbol v. Feld Entm't., Inc.

DENIZ BOLBOL and JOSEPH CUVIELLO, INDIVIDUALLY, Plaintiffs,

v. FELD ENTERTAINMENT, INC. (dba RINGLING BROS.and BARNUM & BAILEY CIRCUS); JAMES DENNIS;MATTHEW GILLET; and DOES 1-10, Defendants.

Case No.: C 11-5539 PSG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Date: November 15, 2012

ORDER DENYING SHANNON

CAMPBELL'S MOTION TO

INTERVENE; DENYING FELD

ENTERTAINMENT'S MOTION TO

DISMISS AND ALTERNATIVE

MOTION TO STRIKE; AND

GRANTING-IN-PART BOLBOL'S

MOTION TO AMEND PLEADINGS

(Re: Docket Nos. 41, 55, 78)

At issue in this case are three related motions brought by three different parties. First, on May 28, 2012, Shannon Campbell ("Campbell") moved to intervene pursuant to Fed. R. Civ. P. 24, as a matter of right under Rule 24(a) or alternatively for permissive intervention under Rule 24(b). Second, on July 13, 2012, Defendants Feld Entertainment ("Feld"), dba Ringling Bros. and Barnum & Bailey Circus ("Ringling Bros."), James Dennis ("Dennis"), Matthew Gillet ("Gillet"), and Does 1-10 (collectively "Defendants") filed a motion to dismiss or alternatively a motion to strike portions of the Second Amended Complaint ("SAC") brought by Plaintiffs Deniz Bolbol ("Bolbol") and Joseph Cuviello ("Cuviello")¹ (collectively "Plaintiffs"). Third and finally, onAugust 19, 2012, Plaintiffs moved to amend and supplement their SAC and file a Third Amended Complaint ("TAC").

In an effort to move this case forward, the court addresses all three motions together. Having considered the arguments and papers, the court DENIES Campbell's motion to intervene, DENIES as moot Defendants' motions to dismiss or to strike and GRANTS-IN-PART Plaintiffs' motion to amend.

I. BACKGROUND

The motions currently before the court are only the most recent battles between Plaintiffs and Defendants over the treatment of circus animals and the rights of the people who protest that treatment. Confrontations occur not only in the courtroom; the parties continually clash at various sites where Defendants perform and Plaintiffs protest the circus and gather intelligence about the conditions of the animals.

The repeated on-the-ground conflicts between the parties have resulted in numerous legal disputes, and in 2004 the parties achieved a detente of sorts. In Bolbol et al. v. Ringling Bros. and Barnum & Bailey Circus, et al., 04-cv-00082-JW ("2004 litigation"), which involved several of the same parties and related issues, Plaintiffs obtained injunctive relief in connection with their speech activities, though the court issuing the injunction also noted the protection was limited in scope. As this court noted in its June 4, 2012 order dismissing most of Plaintiffs' claims ("June 4 order"), that decision plays a significant role in this case.

The parties are familiar with the facts of the case, which the court provided in detail in its June 4 order.² For the purposes of this order, therefore, the court offers only the procedural background of the three motions at issue.

1. First Amended Complaint, June 4, 2012 Order, Motion to Intervene

Plaintiffs filed the instant action in the Superior Court of Santa Clara County on August 19, 2011, and Defendants removed the complaint to this court on November 16, 2011.³ On December21, 2011, Defendants moved to dismiss Plaintiffs' First Amended Complaint ("FAC"),⁴ which this court granted-in-part. Citing standing issues, statute of limitation bars, and the estoppel effect of the holdings in the 2004 litigation, the court in the June 4 order dismissed all but two of Plaintiffs' claims: (1) their claim under California Civil Code Section 51.7 that they were the intended recipients of Defendants' express intent to harm particular persons or property; and (2) their claim under California Civil Code Section 52.1 that Defendants engaged in intimidation through the use of laser pointers and sticks with enlarged photos to prevent Plaintiffs from exercising speech rights protected by Article I, Section 2 of the California Constitution.⁵ The court dismissed the remaining claims with leave to amend.

Before the court ruled on Defendants' first motion to dismiss, Campbell moved on May 28, 2012 to intervene, ostensibly to cure the standing issue raised by Defendants and which the court found dispositive for some of Plaintiffs' factual allegations.⁶

2. Second Amended Complaint

On June 22, 2012, Plaintiffs filed their Second Amended Complaint ("SAC"), in which they made certain additional factual allegations to correct the deficiences in their first attempt.⁷ They added specific dates to their allegations, stating that on August 21, 2008, and August 18, 19, and 20, 2010, Defendants used "laser pointers to harass and interfere" with Plaintiffs' videotaping of the treatment of the circus animals,⁸ and that on numerous occasions, and particularly on August 12, 2008 in Oakland and August 25, 2009 in Sacramento, Defendants used ropes to interfere with Plaintiffs' "free use of public streets and free speech rights."⁹ Plaintiffs added an allegation that when Defendants sprayed Bolbol's camera with water and "rendered [it] inoperable," they intendedto prevent her from videotaping "areas that have already been designated as public fora."¹⁰ Plaintiffs also alleged that as a result of Defendants' actions, Plaintiffs suffered "severe stress and anxiety, depression, and loss of sleep" and that the emotional distress "has been cumulative."¹¹

Plaintiffs claimed that the factual allegations supported five causes of action: (1) violations of Plaintiffs' free speech rights under Article 1, Section 2(a) of the California Constitution, (2) violations of California Civil Code Section 51.7 for threats and intimidation on the basis of political affiliation, (3) intentional infliction of emotional distress, (4) violations of California Civil Code Section 52.1 based on Civil Code Sections 1708 and 3479, and (5) injunctive relief for harassment pursuant to California Code of Civil Procedure Section 527.6. They again sought compensatory, punitive, and treble damages, civil penalties, injunctive relief, and attorney's fees and costs. On July 13, 2012, Defendants moved to dismiss the SAC or in the alternative to strike portions of it, and Plaintiffs opposed.¹²

3. Proposed Third Amended Complaint

On August 19, 2012, before the court issued an order regarding Defendants' second motion to dismiss, Plaintiffs sought leave to amend the SAC and file a Third Amended Complaint ("TAC").¹³ In the proposed TAC, Plaintiffs added factual allegations regarding events occurring after they filed the original complaint: (1) on August 30, 2011, Defendants used a rope to interfere with Cuviello's protest activities in Daly City; (2) on July 8, 2012, Defendants' employees threw a plastic bottle and wooden sticks at Cuviello while he was videotaping in a backstage area of a Fresno arena; and (3) on August 7, 2012, Defendants' employees used a rope and "their bodies to push and assault and batter" Cuviello and Bolbol to prevent them from videotaping the animals.

Plaintiffs also raised four new causes of action, and added two defendants, Mike Stuart ("Stuart"), Director of Circus Operations, and David Bailey ("Bailey"), Assistant General Managerof Ringling Bros. Blue Unit. In addition to the five causes of action raised in the SAC, Plaintiffs added claims for: (1) violations of 42 U.S.C. § 1983 based on Defendants' infringement of Plaintiffs' First Amendment speech rights under the Federal Constitution; (2) assault and battery based on Defendants' employees' actions at the protests; (3) trespass to chattel based on damage to Bolbol's camera; (4) negligent supervision by Defendants of their employees; and (5) violations of the First Amendment and California Civil Code Section 43 as bases for their claims under California Civil Code Section 52.1. Plaintiffs also added requests for injunctive relief under California Civil Code Section 52.1(b) and 52(c)(3) to their claim for relief under California Code of Civil Procedure Section 526(a)(1).

II. LEGAL STANDARDS

A. Motion to Dismiss

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."¹⁴ If a plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face," the complaint may be dismissed for failure to state a claim upon which relief may be granted.¹⁵ A claim is facially plausible "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."¹⁶ Accordingly, under Fed. R. Civ. P. 12(b)(6), which tests the legal sufficiency of the claims alleged in the complaint, "[d]ismissal can based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."¹⁷

On a motion to dismiss, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party.¹⁸ The court's review is limited to the face of the complaint, materials incorporated into the complaint by reference, andmatters of which the court may take judicial notice.¹⁹ However, the court need not accept as true allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences.²⁰ "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear ... that the complaint could not be saved by amendment."²¹

B. Leave to Amend

When a scheduling order has been issued with deadlines for amending the pleadings and that deadline has passed, a plaintiff first must comply with Fed. R. Civ. P. 16(b)(4) to modify the scheduling order to allow for late amendments.²² Fed. R. Civ. P. 16(b)(4) requires a "good cause" showing. The focus of the good cause inquiry in the Rule 16(b) context is the "diligence of the party seeking the modification," in particular whether the party was "diligent in assisting the [c]ourt to create a workable...