Project for Open Government v. County of San Diego

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROJECT FOR OPEN GOVERNMENT,
Plaintiff-Appellant,
v.
COUNTY OF SAN DIEGO,
Defendant-Appellee.
No. 22-55901
DC No. 3:22-cv-00067-AJB-MDD
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted December 12, 2023**
Pasadena, California
Before: TASHIMA, GRABER, and CHRISTEN, Circuit Judges.
Plaintiff Project for Open Government filed a complaint in state court
against Defendant County of San Diego, seeking declaratory and injunctive relief
against a rule adopted by the San Diego County Board of Supervisors, which was
FILED
JAN 2 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

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aimed at curbing disruptive, hostile discourse at Board meetings. The case was
removed to federal court. The district court dismissed the complaint without leave
to amend under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim
as to the federal claim and remanded the remaining state law claim to San Diego
County Superior Court.
The complaint’s allegations do not establish Article III standing because
Plaintiff has not alleged that it “has suffered, or be[en] threatened with, an actual
injury traceable to the defendant [that is] likely to be redressed by a favorable
judicial decision.” Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 834
(9th Cir. 2014) (second alteration in original) (quoting Spencer v. Kemna, 523 U.S.
1, 7 (1998)). Because there was no federal jurisdiction, we conclude that the
matter should have been remanded to state court. Polo v. Innoventions Int’l, LLC,
833 F.3d 1193, 1194–96 (9th Cir. 2016). Because the district court lacked subject
matter jurisdiction, we vacate the district court’s 12(b)(6) dismissal and remand
with instructions to remand the case to state court.
Plaintiff’s motion to strike Defendant’s supplemental excerpts of record
[Dkt. 29], is denied as moot.
VACATED and REMANDED with directions.
2

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