NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FRANK KONARSKI, husband DBA No. 13-17384
FGPJ Apartments & Development; et al.,
D.C. No. 4:13-cv-00999-DCB
Plaintiffs - Appellants,
v. MEMORANDUM*
MICHAEL G. RANKIN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted February 12, 2015
San Francisco California
Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.
Frank, Gabriela, Patricia, John, and Frank E. Konarski, owners of a housing
development business in Tucson, appeal from the district court’s dismissal of their
complaint against the City of Tucson (the “City”) and several city officials. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Konarskis allege that city officials, in declining to meet with them to discuss a
proposed ordinance and in refusing to reconsider an ordered shutdown of one of
their housing development projects, have discriminated and retaliated against them
in violation of their federal constitutional and statutory civil rights, causing them
economic damage and emotional distress.
1. The district court did not err in dismissing the Konarskis’ First
Amendment retaliation claims, brought under 42 U.S.C. § 1983, in counts one and
two of the complaint. The Konarskis have not pled facts plausibly indicating that
the silence they received from city officials was retaliatory in nature. City
Attorney Michael Rankin’s alleged instructions to city council members—that
council members were “to avoid meeting” with the Konarskis “specifically because
of a lawsuit involving civil rights violations”—indicates only that Rankin had
advised his clients to avoid making any statements that might be used against them
in pending litigation, not that he acted with retaliatory animus. See Hartman v.
Moore, 547 U.S. 250, 259–60 (2006). With respect to the allegedly retaliatory
shutdown of the Konarskis’ housing development project, the only indication of
Rankin’s involvement (other than “mere conclusory statements” the district court
was “not bound to accept as true,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted)) is that, when the Konarskis attempted to contact Tucson
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Planning and Development Services department (“Development”) representatives,
the representatives told them that Rankin, referencing the pending civil rights
action, had instructed them to refer the Konarskis to him rather than to deal with
the Konarskis directly. The Konarskis have not alleged that city officials have met
with other citizens during the pendency of suits filed by those citizens against the
City or provided any other reason plausibly to indicate that the City acted with
retaliatory intent. See Moore, 547 U.S. at 259–60.
2. The Konarskis’ allegations of denial of equal protection on a “class of
one” theory, brought under 42 U.S.C. §§ 1983, 1985(3) and 1986 as stated in
counts three, four and seven of the complaint, do not make out a claim upon which
relief can be granted. Although the district court erred in denying these claims on
the basis of the Konarskis’ citation to the Fifth Amendment, see McCalden v. Cal.
Library Ass’n, 955 F.2d 1214, 1223 (9th Cir. 1990), superceded by rule on other
grounds as recognized in Harmston v. City and Cnty. of San Francisco, 627 F.3d
1273 (9th Cir. 2010), this court may affirm on any basis supported by the record,
Saldana v. Occidental Petroleum Corp., 774 F.3d 544, 551 (9th Cir. 2014).
A “class of one” equal protection claim must plausibly allege that disparate
treatment of an individual or individuals is without any rational basis. Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). The Konarskis have
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provided no facts indicating that similarly situated individuals were treated
differently or otherwise implying that there was “no rational basis for the
difference in treatment.” Id. As noted, they have not alleged that other plaintiffs
have been granted private meetings with city officials during pending litigation
against the City. With respect to the housing development project shutdown, they
have not indicated that the City has in other instances allowed construction of a
building in which the parapet wall exceeds the City’s standard height limitations.
Although the Konarskis did not formally move for leave to amend, at the
hearing on the motion to dismiss, counsel requested the opportunity to amend the
complaint “to satisfy any defects in the pleading.” Regarding the City’s shutdown
of the Konarskis’ housing development project, this court cannot conclude that “it
is clear, upon de novo review, that the complaint could not be saved by any
amendment.” Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 907 n.3 (9th Cir. 2011)
(citation omitted). We therefore vacate the dismissal with prejudice with respect to
count three’s “class of one” equal protection claim under 42 U.S.C. § 1983 and
instruct the district court that the Konarskis be granted leave to amend.
The Konarskis’ allegations of a conspiracy to deprive them of equal rights as
a “class of one” under 42 U.S.C. § 1985(3), and of permitting such a conspiracy
under 42 U.S.C. § 1986, however, cannot be cured, because the government has
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not identified the Konarskis as a class in need of “special federal assistance in
protecting its civil rights.” McCalden, 955 F.2d at 1223.
3. The district court did not err in dismissing the Konarskis’ claims, brought
under 42 U.S.C. §§ 1981, 1985(3), that the City discriminated against them on the
basis of their Polish ancestry in shutting down their housing development project.
Of the Development department employees who allegedly made derogatory
statements, the only one whom the Konarskis have suggested had an influence on
the decision to shut down their project is director Ernie Duarte. Duarte’s alleged
comment that “nobody likes you” does not plausibly establish discrimination on
the basis of Polish ancestry. See Iqbal, 556 U.S. at 682. That one or two of the
alleged statements by other lower-level Development department employees could
plausibly be interpreted to convey animus against Polish people does not make out
a widespread pattern of conduct sufficient to establish a city policy or custom of
discrimination. See Iqbal, 556 U.S. at 682-83; Menotti v. City of Seattle, 409 F.3d
1113, 1151 (9th Cir. 2005).
4. The district court abused its discretion in dismissing with prejudice the
state-law claim stated in count eight. Where a federal court dismisses all federal
claims before trial, the court generally should decline to exercise jurisdiction over
remaining state claims, but the claims should be “dismissed without prejudice and
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left for resolution to state tribunals.” United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 726–27 (1966) (emphasis added).
5. Given the above rulings, we need not address the district court’s denial of
the Konarskis’ Rule 60(b) motion. The motion does not identify one of the Rule
60(b) bases for relief from the dismissal order, but rather argues that the district
court committed “clear error” in issuing its order, essentially repeating the
arguments the Konarskis made in their response to the motion to dismiss. As we
have ruled directly on those arguments, the question whether the district court
should have granted Rule 60(b) relief as to any of them is moot.
The district court’s dismissal order is AFFIRMED except with respect to
count three, as to which dismissal with prejudice is VACATED with the
instruction that the court give leave to amend, and count eight, as to which
dismissal is AFFIRMED in part but REVERSED with respect to prejudice. Each
party shall bear its own costs on appeal.
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