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MORAN v. PERALTA COMMUNITY COLLEGE DIST.

January 22, 1993

RUSSEL L. MORAN, Plaintiff,
v.
PERALTA COMMUNITY COLLEGE DISTRICT, et al., Defendants.



The opinion of the court was delivered by: SAMUEL CONTI

 I. INTRODUCTION

 Defendants Peralta Community College District (the "District") and various named employees and board members of the District (collectively, the "moving defendants") seek partial judgment on the pleadings, *fn1" as regards all claims against them. Plaintiff Russel L. Moran ("Moran") opposes the moving defendants' motion as regards the eleventh and twelfth causes of action, and seeks leave to amend his complaint.

 II. APPLICABLE STANDARD FOR JUDGMENT ON THE PLEADINGS

 Fed. R. Civ. P. 12(c) provides as follows:

 
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matter outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

 Although Rule 12(c) does not expressly authorize "partial" judgments, neither does it bar them, and it is common practice to apply Rule 12(c) to individual causes of action. Courts have discretion to grant leave to amend in conjunction with 12(c) motions, and may dismiss causes of action rather than grant judgment. Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979). Although Rule 12(c) differs in some particulars from Rule 12(b)(6), *fn2" the standard applied is virtually identical. Miller v. Indiana Hosp., 562 F. Supp. 1259, 1266 (D.C. Pa. 1983).

 The Ninth Circuit has reviewed the standard for a motion to dismiss for failure to state a claim on which relief can be granted:

 
. . . a complaint should not be dismissed under Fed. R. Civ. P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
 
A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable theory. 2A J. Moore, Moore's Federal Practice P 12.08 at 2271 (2d ed. 1982).

 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). In determining a motion to dismiss, "all the allegations of material fact are taken as true and construed in the light most favorable to the non-moving party." Moreover, "to dismiss, it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved." Wool v. Tandem Computers Inc., 818 F.2d 1433, 1439 (9th Cir. 1987). In light of this standard, the facts of this case, construed in the light most favorable to the non-moving party, are set forth below.

 III. FACTS

 Plaintiff is the widower of Vincenta Moran. Mrs. Moran was at the time of her death an employee of the District. Upon her death, the District, in accordance with the Comprehensive Omnibus Budget Reconciliation Act of 1986 ("COBRA") amendments to the Public Health Services Act ("PHSA"), informed Moran of his right to continue insurance coverage under the District's group insurance plan (the "Plan") for a period of 36 months. Moran elected to continue coverage with Blue Cross. Between December, 1989 and July, 1991, Moran submitted insurance premiums to the District totalling some $ 4,161.32.

 In July of 1991, Moran submitted a claim for payment for medical treatment, only to discover that he was not in fact covered. The District does not dispute that ...


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