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SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

December 31, 2003.

SPRINT TELEPHONY PCS, L.P., a Delaware limited partnership, and PACIFIC BELL WIRELESS, LLC, a Nevada limited liability company, dba Cingular Wireless, Plaintiffs
v.
COUNTY OF SAN DIEGO, a division of the state of California; GREG COX, in his capacity as a supervisor of the County of San Diego; DIANNE JACOB, in her capacity as a supervisor of the County of San Diego; PAM SLATER, in her capacity as a supervisor of the County of San Diego; RON ROBERTS, in his capacity as a supervisor of the County of San Diego; and BILL HORN, in his capacity as a supervisor of the County of San Diego, Defendants



The opinion of the court was delivered by: JUDITH KEEP, District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS CONSTRUED AS A MOTION TO DISMISS
Defendants County of San Diego, Greg Cox, Dianne Jacob, Pam Slater, Ron Roberts, and Bill Horn (collectively "defendants") filed a motion for judgment on the pleadings for failure to state a claim on November 17, 2003. Plaintiffs, Sprint Telephony PCS and Pacific Bell Wireless, filed an opposition to the motion for judgment on the pleadings on December 1, 2003. Defendants filed a reply on December 8, 2003. Both plaintiffs and defendants are represented by counsel. I. Background

A. Factual Background

  The following is taken from the pleadings and is not to be construed as findings of fact by the court.

  Plaintiffs are federally licensed providers of commercial mobile radio service. See Complaint ¶ 1. They seek to implement a wireless telecommunications network throughout San Diego County and the nation. See id. ¶ 2. In order to develop such a network, plaintiffs intend to construct the infrastructure necessary to provide commercial mobile radio service, which includes the construction and installation of wireless antenna facilities within San Diego County. See id. ¶ 1. According to plaintiffs, the federal Telecommunications Act of 1996 ("TCA") authorizes them to install wireless antenna facilities in San Diego County. See id. ¶ 2. Plaintiffs allege, however, that a San Diego County Ordinance, "An Ordinance Amending the San Diego County Zoning Ordinance Relating to Wireless Telecommunications Facilities," ("the Ordinance"), inhibits their ability to install these wireless antenna facilities, thereby violating the TCA. See id. ¶ 2. The TCA, they contend, preempts the Ordinance.

  By enacting the TCA, Congress adopted a framework for the deployment of a national, technologically advanced communication system. See id. ¶ 15. The TCA was intended, in part, to promote competition and deregulation in local telecommunications markets. See id. ¶ 16. Accordingly, the TCA preempts local authority to prohibit or effectively prohibit the provision of telecommunications service. See id. ¶ 21. Congress, however, did establish "safe harbor" provisions that allow state and local governments to retain some oversight of the development of such a network in their counties. See id. ¶ 22.

  The Ordinance establishes "comprehensive guidelines for the placement, design, and processing of wireless telecommunications facilities in all zones within the County of San Diego." See id. ¶ 29. Plaintiffs allege that the Ordinance exceeds the authority reserved to local government because it prohibits or effectively prohibits the provision of telecommunications service and does not fall within a "safe harbor." See id. ¶ 29(a), 31-32. Therefore, plaintiffs state four causes of action arising from the county's implementation of the Ordinance. First, plaintiffs claim defendants violated the TCA's prohibition of provision of telecommunications service, 47 U.S.C, § 253(a). See id. ¶ 34-36. Plaintiffs' second cause of action alleges that defendants violated section 253(c)'s prohibition against discriminatory regulation of a public right-of-way and the Fourteenth Amendment. See id. ¶ 37-40. Third, plaintiffs claim defendants violated 42 U.S.C. § 1983. Finally, plaintiffs sue for a declaratory judgment. See id. ¶ 48-50.

 B. Procedural Background

  On September 9, 2003, defendants filed a motion to dismiss for failure to state a claim. Plaintiffs filed an opposition to defendants' motion on September 30, 2003, and defendants filed a reply memorandum on October 6, 2003. On October 20, 2003, after considering the parties' briefs, the court dismissed with prejudice plaintiffs' second cause of action for violation of 47 U.S.C. § 253(c), October 20. 2003 Order ("Order") at 8. The court further dismissed plaintiffs' second cause of action for violation of the Fourteenth Amendment without prejudice. Id. The court denied defendants' motion to dismiss the first, third, and fourth causes of action.

  On November 17, 2003, defendants filed a motion for judgment on the pleadings, again relying on a defense of failure to state a claim. See Defendants Motion for Judgment on the Pleadings ("Defendants' Motion'") at 2. It is this motion that is now before the court. Defendants request that the court now dismiss plaintiffs' first and third causes of action for failure to state a claim upon which relief may be granted. See id.

  II. Standard of Review

 A. Defendants' Motion for Judgment on the Pleadings

  Defendants filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("FRCP") 12(c). Plaintiffs contend that defendants' motion is properly considered a motion to dismiss pursuant to FRCP 12(b)(6). See Plaintiff's Opposition to Defendants' Motion for Judgment on the Pleadings ("Opposition") at 2. A Rule 12(c) motion for judgment on the pleadings and a Rule 12(b)(6) motion to dismiss are virtually interchangeable. See William W. Schwarzer, et al., Federal Civil Procedure Before Trial § 9:319 (2003). In fact, the same standard applies to both. See Hal Roach Studios. Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989) (stating standard for motion for judgment on the pleadings); Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (stating standard for motion to dismiss). The only differences between the two motions are (1) the timing (a motion for judgment on the pleadings is usually brought after an answer has been filed, whereas a motion to dismiss is typically brought before an answer is filed), see Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999), and (2) the party bringing the motion (a motion to dismiss may be brought only by the party against whom the claim for relief is made, usually the defendant, whereas a motion for judgment on the pleadings may be brought by any party). See In re Villegas, 132 B.R. 742, 744-45 (9th Cir. BAP 1991). Because the two motions are analyzed under the same standard, a court considering a motion for judgment on the pleadings may give leave to amend and "may dismiss causes of action rather than grant judgment. See, Federal Civil Procedure Before Trial, supra at § 9:341; Moran v. Peralta Cmty College Dist., 825 F. Supp. 891, 893 (N.D. Cal. 1993). The mere fact that a motion is couched in terms of Rule 12(c) does not prevent the district court from disposing of the motion by dismissal rather than judgment. See Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979). Therefore, the court considers defendants' motion as it would a motion to dismiss, and declines to grant judgment at this point.

 B. Legal Standard

  The Federal Rules of Civil Procedure, Rule 12(b)(6) and Rule 12(c), allow a court to dismiss a complaint for failure to state a claim upon which relief can be granted. Such a dismissal can be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri, 901 F.2d at 699; Hal Roach Studios, 896 F.2d at 1550. In applying this standard, the court's review is limited to the contents of the complaint. See Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); Hal Roach Studios, 896 F.2d at 1550. The court must accept all factual allegations pleaded in the complaint as true, construing and drawing all reasonable inferences from the allegations in favor of the nonmoving party. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Wagner v. Pro. 575 F.2d 882, 884 (DC Cir. 1976). However, the court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Western Mining Council v. Watt, 643 F.2d 618. 624 (9th Cir. 1981). cert. denied. 454 U.S. 1031 (1981). Moreover, the court does not have to accept as true conclusory allegations that contradict facts that may be judicially noticed or that are contradicted by documents referred to in the complaint. See, e.g., Steckman v. Hart Brewing Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998).

  III. Discussion

 A. Threshold Issue: Court's Consideration of Defendants' Motion

  Defendants submitted their motion for judgment on the pleadings without thoroughly addressing the fact that they had already raised the defense of failure to state a claim in their earlier motion to dismiss. See Defendants' Memorandum of Points and Authorities in Support of their Motion for Judgment on the Pleadings ("Defendants' Memorandum") at 3, n. 1 (stating only,

  "[b]ecause the County asserts that plaintiffs' first and third causes of action fail to state claims upon which relief can be granted, the County has not waived these arguments by not raising them in its motion to dismiss. Fed.R.Civ.P. 12(g) and 12(h)(2)."). In their opposition, plaintiffs asserted four reasons that the court should refuse to even consider defendants' motion. See Opposition at 2-6. First, plaintiffs contend that defendants' motion is not a proper 12(c) motion. Id. at 2. Second, they assert that FRCP 12(g) precludes defendants from bringing their motion. Id. at 3. Third, they argue that the "law of the case" doctrine bars consideration of defendants' motion. Id. at 4. Finally, they contend that there is no good cause for defendants' motion, and therefore, the court, in its discretion, need not consider the motion. Id. at 5. Defendants respond to plaintiffs' arguments more thoroughly in their reply. See Defendants' Reply Memorandum at 1-3.

  i. Propriety of 12(c) Motion

  Plaintiffs argue that defendants' Rule 12(c) motion is improper because defendants cannot show that plaintiffs are entitled to no relief under any state of facts that could be proven in support of plaintiffs' claims. See Opposition at 2. As discussed above, the court will not grant judgment as a matter of law at this point. See supra Part II(A). The court has decided to consider defendants' motion as it would a motion to dismiss, granting only dismissal with leave to amend rather than judgment. Id. Therefore, whether defendant properly brought this motion under 12(c) is irrelevant and the court will not make a determination as to this issue.

  ii. FRCP 12(g) and 1200(h)(2)

  Rule 12(g) states in part:
If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.
Fed.R.Civ.P. 12(g), Rule 12(h)(2) states: "[a] defense of failure to state a claim upon which relief can be granted . . . may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits," Fed.R. Civ. P. 12(h)(2).

  Plaintiffs argue that Rule 12(g) precludes successive motions to dismiss and that defendants earlier motion to dismiss and the instant motion for judgment on the pleadings are successive because they both raise the same defense: failure to state a claim upon which relief can be granted. See Opposition at 3. Moreover, plaintiffs assert that the exception provided in Rule 12(h)(2) allowing defendants to raise a defense of failure to state a claim in a motion for judgment on the pleadings is implicated only if the defense was omitted from their earlier motion. Id. at 4. Plaintiffs conclude that, because defendants did not omit their defense of failure to state a claim in their earlier motion, but rather raised the defense but failed to articulate every ground in support of that defense, Rule 12(h)(2) does not apply and defendants may not again raise the defense of failure to state a claim. See id. at 4.

  In response, defendants propose an alternative interpretation of Rules 12(g) and 12(h)(2). See Defendants' Reply Memorandum at 1-2. Defendants argue that 12(h)(2) is an exception to Rule 12(g)'s consolidation requirement. As such, they argue that 12(h)(2) permits defendants to raise new arguments related to certain specified defenses, failure to state a claim among them, in a motion for judgment on the pleadings at any time, even if they already raised the defense in an earlier motion to dismiss. See id. at 2.

  Both parties base their interpretations on a reading of the specified provisions and neither provides binding authority that is specifically on point. However, the court recognizes a tension and inconsistency between the policy underlying Rule 12(g)'s consolidation requirement and Rule 12(h)(2)'s apparent exception for motions for judgment on the pleadings. "`The philosophy underlying [Rule 12(g)] is simple and basic: a series of motions should not be permitted because that results in delay and encourages dilatory tactics.'" Aetna Life Ins. Co, v. Alla Medical Servs., Inc., 855 F.2d 1470, 1475, n.2 (9th Cir. 1988) (quoting 2A Moore et al., Moore's Federal Practice ¶ 12.22 at 12-192 (2d ed. 1987)). It is inconsistent with this policy to find that defendants may avoid 12(g)'s consolidation requirement merely by framing their motion as a motion for judgment on the pleadings. Further, it is a waste of judicial resources to consider motion after motion in which defendants raise the same defense over and over, each time testing a new argument. Allowing such a tactic means that defendants potentially could stall litigation indefinitely as long as they can conjure up a new argument on which to base a failure to ...


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