Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-02172-BEN-JMA

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Filed 12/05/2007

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WILSON PETTY KOSMO & TURNER LLP REGINA A. PETTY (106163) SOTERA L. ANDERSON (211025) 550 West C Street, Suite 1050 San Diego, California 92101 Telephone: (619) 236-9600 Facsimile: (619) 236-9669 E-mail: [email protected] E-mail: [email protected] Attorneys for Defendant SAN DIEGO CONVENTION CENTER CORPORATION, INC.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED NATIONAL MAINTENANCE INC, A NEVADA CORPORATION, Plaintiff,

Case No. 07-CV-2172 BEN (JMA) DEFENDANT SAN DIEGO CONVENTION CENTER CORPORATION, INC.'S NOTICE OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULES 12(B)(1) AND 12(B)(6) Complaint Filed: November 13, 2007 Date: Time: Dept.: Judge: Trial Date: January 28, 2008 10:30 a.m. 3 Hon. Roger T. Benitez Not Set

14 v. 15 16 17 Defendant. 18 19 20 21 22 23 24 25 26 27 28 SAN DIEGO CONVENTION CENTER CORPORATION, INC., A CALIFORNIA CORPORATION,

[EXEMPT FROM FEES ­GOV. CODE, § 6103]

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: YOU ARE HEREBY NOTIFIED THAT the Motion to Dismiss of Defendant SAN DIEGO CONVENTION CENTER CORPORATION, INC. ("SDCCC") to Plaintiff's entire Complaint will be heard on January 28, 2008, at 10:30 a.m. in Courtroom 3 of this Court, located at 880 Front Street, San Diego, California 92101.
Case No. 07-CV-2172 BEN (JMA) DEFENDANT SAN DIEGO CONVENTION CENTER CORPORATION, INC.'S NOTICE OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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Case 3:07-cv-02172-BEN-JMA

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Filed 12/05/2007

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SDCCC's Motion to Dismiss is based on the following grounds: Plaintiff's entire Complaint fails to state claims for which relief can be granted. No cause of action can lie against municipality such as SDCCC where it has simply exercised its right to control matters concerning the public welfare, which is exactly what SDCCC's security policy seeks to accomplish. Fed. R. Civ. P. 12(b)(6). Plaintiff's first, second, third, and fourth causes of action based on the Sherman Act (Attempted Monopolization, Essential Facilities, Group Boycott, and Exclusive Dealing) fail to state claims upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Namely, SDCCC is exempt from liability under the antitrust laws under the "state action doctrine." Additionally, Plaintiff's first four causes of action for violation of the Sherman Act also fail as Plaintiff has failed to allege sufficient facts showing SDCCC's security policy has a direct and substantial affect on interstate commerce. Fed. R. Civ. P. 12(b)(6). Considering each of Plaintiff's federal claims fail, the Court lacks supplemental subject matter jurisdiction over Plaintiff's state claims - Plaintiff's fifth, sixth, and seventh causes of action (Interference with Contract, Interference with Prospective Business Advantage, and violation of Business and Professions Code section 17000). Fed. R. Civ. P. 12(b)(1). Finally, even if the Court did have jurisdiction over Plaintiff's state claims, Plaintiff has failed to state claims upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Namely, SDCCC enjoys governmental immunity for the state claims under the Tort Claims Act. This Motion to Dismiss is based upon this Notice of Motion, the attached Memorandum of Points and Authorities in Support of Motion, the Request for Judicial Notice (filed along with this Motion), and all pleadings and papers in the court's file, any other matters of which the court may take judicial notice and upon such oral argument as may be entertained by this court. /// /// /// /// ///
Case No. 07-CV-2172 BEN (JMA) DEFENDANT SAN DIEGO CONVENTION CENTER CORPORATION, INC.'S NOTICE OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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Case 3:07-cv-02172-BEN-JMA

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Filed 12/05/2007

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WHEREFORE, Defendant SDCCC prays that its Motion to Dismiss be sustained without leave to amend.

December 5, 2007

WILSON PETTY KOSMO & TURNER LLP

By:

/SOTERA L. ANDERSON REGINA A. PETTY SOTERA L. ANDERSON Attorneys for Defendant SAN DIEGO CONVENTION CENTER CORPORATION

Case No. 07-CV-2172 BEN (JMA) DEFENDANT SAN DIEGO CONVENTION CENTER CORPORATION, INC.'S NOTICE OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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