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G:\Docs\Ezra2\ZZB.Orders\KITV Motion to Dismiss V.9.Wpd Case 1:10-cv-00253-DAE-KSC Document 18 Filed 08/31/10 Page 1 of 22 PageID #: <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI`I C. KAUI JOCHANAN ) CV. NO. 10-00253 DAE-KSC AMSTERDAM, ) ) Plaintiff, ) ) vs. ) ) KITV 4 TELEVISION STATION; ) MIKE ROSENBERG, General ) Manager ) ) Defendants. ) _____________________________ ) ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing the Motion to Dismiss and supporting memoranda filed by Defendants Hearst Stations, Inc., owner and operator of defendant television station KITV and Mike Rosenberg (collectively, “Defendants”), the Court GRANTS Defendants’ Motion. (“Mot.,” Doc. # 9.) BACKGROUND Many of the background facts have already been discussed in this Court’s prior order denying Plaintiff’s Motion for Injunctive Relief on May 7, 2010 (“PI Order,” Doc. # 8), and the Court recites only those facts necessary for a Case 1:10-cv-00253-DAE-KSC Document 18 Filed 08/31/10 Page 2 of 22 PageID #: <pageID> determination on the instant Motion. Defendant KITV 4 is a privately owned television station in Honolulu operated by Hearst Stations Inc., which is owned by Hearst Corporation, a privately held corporation. (PI Order at 2.) Defendant Rosenberg is KITV 4’s General Manager. (See “Compl.,” Doc. # 1.) Plaintiff’s Complaint alleges that in 2010, Plaintiff ran as a candidate in the election for the Interim Representative in the United States House of Representatives, seeking to represent the First Congressional District of Hawai`i. (Compl. at 1.) Defendants scheduled a debate for May 7, 2010, between three of the candidates who were seeking the position of Interim Representative in the First Congressional District of Hawai`i. (Id.) Plaintiff was not among the three candidates selected for the debate. (Id.) Plaintiff alleges that he requested to take part in the debate, however, Chuck Parker, the News Director for KITV 4 denied Plaintiff’s request, stating that KITV 4 officials were responsible for the decision. (Id. at 2.) Subsequently, on April 30, 2010, Plaintiff filed a complaint with this Court alleging that KITV 4’s exclusion of Plaintiff from the debate violated his First and Fourteenth Amendment rights. (Compl., Doc. # 1.) On the same day, Plaintiff filed a Motion for Injunctive Relief. (Doc. # 4.) On May 7, 2010, this Court denied Plaintiff’s Motion for Injunctive Relief because Plaintiff failed to 2 Case 1:10-cv-00253-DAE-KSC Document 18 Filed 08/31/10 Page 3 of 22 PageID #: <pageID> show a reasonable likelihood of success on the merits of his underlying claims. (PI Order, Doc. # 8.) On May 7, 2010, KITV 4 held the debate objected to by Plaintiff. (Mot. at 4.) Plaintiff was not allowed to be a participant. (Id.) On May 22, 2010, the State of Hawaii Office of Elections declared Charles Djou to be the winner of the special election.1 (Id.) On May 24, 2010, Defendants filed the instant Motion to Dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1), or, in the alternative, Rule 12(b)(6). (Mot., Doc. #9.) Plaintiff did not file an opposition to Defendants’ Motion. On August 9, 2010, Defendants filed a reply in further support of their Motion. (“Reply,” Doc. # 16.) STANDARD OF REVIEW Pursuant to Rule 12(b)(1), a defendant may move to dismiss a complaint for lack of subject matter jurisdiction. In a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the initial burden of proving that subject matter jurisdiction exists. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Rattlesnake Coalition v. U.S. E.P.A., 509 F.3d 1095, 1102 n.1 (9th 1 This Court takes judicial notice of fact that the State of Hawaii Office of Elections declared Charles Djou to be the winner of the special election because it is a fact that is “generally known within the territorial jurisdiction of the . court.” Fed. R. Evid. 201(b). 3 Case 1:10-cv-00253-DAE-KSC Document 18 Filed 08/31/10 Page 4 of 22 PageID #: <pageID> Cir. 2007). “In considering the jurisdiction questions, it should be remembered that ‘it is a fundamental principle that federal courts are courts of limited jurisdiction.’” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)). Upon a motion to dismiss, a party may make a jurisdictional attack that is either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack occurs when the movant “asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. By contrast, a factual attack occurs when the movant “disputes the truth of the allegations, that by themselves, would otherwise invoke federal jurisdiction.” Id. In resolving a facial attack on the allegations of the complaint, the court must accept the allegations of the complaint as true. Mason v. Arizona, 260 F. Supp. 2d 807, 815 (D. Ariz. 2003); see also Savage v. Glendale Union High School, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “Unlike a Rule 12(b)(6) motion, however, the court will not reasonably infer allegations sufficient to support federal subject matter jurisdiction because a plaintiff must affirmatively allege such jurisdiction.” Mason, 260 F. Supp. 2d at 815. When subject matter jurisdiction is challenged in a motion to 4 Case 1:10-cv-00253-DAE-KSC Document 18 Filed 08/31/10 Page 5 of 22 PageID #: <pageID> dismiss, the plaintiff has the burden of proving jurisdiction. Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008) (citing Tosco Corp. v. Comtys. for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001)). Additionally, a motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Review is limited to the contents of the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). Allegations of fact in the complaint must be taken as true and construed in the light most favorable to the plaintiff. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). A complaint does not need to include detailed facts to survive a Rule 12(b)(6) motion to dismiss. Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965. (2007). However, in providing grounds for relief, a plaintiff must do more than recite the formulaic elements of a cause of action. Id. at 1966. The plaintiff must include enough facts to raise a reasonable expectation that discovery will reveal evidence. In other words, the plaintiff must allege enough facts to state a claim for relief that is plausible on its face. Id. at 1974. “[C]onclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim.” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). 5 Case 1:10-cv-00253-DAE-KSC Document 18 Filed 08/31/10 Page 6 of 22 PageID #: <pageID> When a plaintiff appears pro se, the court has an obligation to construe the plaintiff’s complaint liberally. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003); Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (same). Pro se plaintiffs in a civil rights action must be afforded the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). “A pro se litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear that the deficiencies of the complaint could not be cured by amendment.’” Id. (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superceded by statute, Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (determining that a district court retains its discretion to dismiss a pro se prisoner’s in forma pauperis complaint with or without leave to amend under the Prisoner’s Litigation Reform Act)). “[B]efore dismissing a pro se civil rights complaint for failure to state a claim, the district court must give the plaintiff a statement of the complaint’s deficiencies.” Id. DISCUSSION Defendants assert that Plaintiff’s Complaint must be dismissed because this Court lacks subject matter jurisdiction. In support, Defendants state that the instant matter is moot, that Plaintiff does not have a claim under section 315 of the Communications Act of 1934, and that exclusion of minor candidates 6 Case 1:10-cv-00253-DAE-KSC Document 18 Filed 08/31/10 Page 7 of 22 PageID #: <pageID> from debates does not violate the First or Fourteenth Amendments if such exclusion is based on reasonable, viewpoint-neutral criteria. The Court shall address each argument in turn. I. Subject Matter Jurisdiction: Mootness Preliminarily, Defendants assert that Plaintiff’s claims should be dismissed because the debate has already taken place without Plaintiff, and therefore, the case is moot and this Court lacks subject matter jurisdiction. (Mot. at 2.) According to the United States Supreme Court, “[i]n general a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Murphy v.
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