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
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
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. ¶
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.
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.
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.
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).
A. Threshold Issue: Court's Consideration of Defendants'
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
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.
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 ...