The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON PLAINTIFF'S EX PARTE MOTION FOR EXTENSION OF TIME AND ORDER ON MADERA'S MOTION TO DISMISS AND MOTION TO STRIKE (Doc. Nos. 18, 37)
This is a civil rights case brought by Plaintiff Anthony Slama against the City of Madera ("the City") and two Madera police officers. Plaintiff alleges Fourth Amendment violations against the Defendants in connection with Plaintiff's arrest. Currently pending before the Court is the City's combined motion to dismiss and motion to strike and Plaintiff's ex parte request for additional time to file an opposition.
This case was removed from the Madera County Superior Court. On August 7, 2008, this Court granted a motion to dismiss with leave to amend. An amended complaint was filed on August 28, 2008. The amended complaint was filed by attorney Brenda Hooks. Along with the amended complaint was a declaration in which Ms. Hooks indicated that she believed that attorney Steven Geringer was going to be Plaintiff's counsel, that Geringer did not file a substitution of counsel but had filed a case management statement in the Madera County court, she did not know whether Plaintiff wanted her to continue representation, that she was not in a position to continue representing Plaintiff, and that she was filing the amended complaint as a courtesy. On October 21, 2008, Hooks was allowed to withdraw and Plaintiff proceeded pro se. Defendants had filed an answer on September 11, 2008, and several minutes later on the same date filed this motion to dismiss. See Court's Docket Doc. Nos. 17, 18. In light of the withdrawal of Hooks, Plaintiff was granted two extensions of time in which to file an opposition: one extension was by the Court sua sponte and the other was granted per Plaintiff's motion. The opposition to the City's motion was due on December 12, 2008. On December 11, 2008, Geringer filed a motion for an extension to file an opposition. Geringer states that he will be substituting in as counsel, that he received information late from Plaintiff because of a wrong address, and that he will be able to file an opposition on January 12, 2008. The City opposes the extension. There is no hearing date currently set for the pending motion.
PLAINTIFF'S EX PART REQUEST FOR ADDITIONAL TIME
Because Plaintiff has had sufficient time to formulate an opposition, Geringer has been aware of the proceedings in federal court (as made clear by the City's opposition), and the City's motion will be granted with leave to amend, the Court will deny Plaintiff's ex parte motion for an extension of time to file an opposition.
MOTION TO DISMISS/MOTION TO STRIKE
Defendant's Argument The City argues that Plaintiff has failed to adequately plead a cause of action against it for a violation of 42 U.S.C. § 1983. The only allegations in the complaint relate to the conduct of the two police officers during this encounter. There is no allegation or identification of a policy or custom that caused harm to Plaintiff. Because there is insufficient allegations of injury due to a custom or policy, dismissal is appropriate.
Also, Plaintiff alleges under "Section F" of the complaint that he suffered from, inter alia, intentional infliction of emotional distress and false imprisonment. Intentional infliction of emotional distress and false imprisonment are state law torts. To bring a state law tort cause of action against a public entity, a plaintiff must comply with the California Tort Claims Act. Plaintiff failed to file a tort claim with the City. Thus, these claims should be struck.
The City's motion to dismiss and motion to strike are untimely. The City's motion was filed after it filed its answer. Cf. Court's Docket Doc. No. 17 with Doc. No. 18. A Rule 12(b)(6) motion must be made before the responsive pleading. Fed. R. Civ. Pro. 12(b); MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006). Where a motion to dismiss is filed after the filing of an answer, the motion will be treated as a motion for judgment on the pleadings pursuant to Rule 12(c).*fn1 Id.
Under Federal Rule of Civil Procedure 12(c), "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed. R. Civ. Pro. 12(c). Because the motions are functionally identical, the same standard of review applicable to a Rule 12(b)(6) motion applies to a Rule 12(c) motion. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Judgment on the pleadings is appropriate when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law. Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007); Honey v. Distelrath, 195 F.3d 531, 532 (9th Cir. 1999). The allegations of the nonmoving party must be accepted as true, while any allegations made by the moving party that have been denied or contradicted are assumed to be false. See MacDonald, 457 F.3d at 1081; Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). The facts are viewed in the light most favorable to the non-moving party and all reasonable inferences are drawn in favor of that party. See Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353, 360 (9th Cir. 2005); Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004). "However, judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment." Hal Roach Studios, 896 F.2d at 1550. Although Rule 12(c) does not mention leave to amend, courts have the discretion in appropriate cases to grant a Rule 12(c) motion with leave to amend, or to simply grant dismissal of the action instead of entry of judgment. See Lonberg v. City of Riverside, 300 F.Supp.2d 942, 945 (C.D. Cal. 2004); Carmen v. San Francisco Unified School Dist., 982 F.Supp. 1396, 1401 (N.D. Cal. 1997). The court need not grant leave to amend when doing so would be futile and the deficiencies in the complaint could not be cured by amendment. See Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 1043, 1046 (9th Cir. 2006);Gomez v. Winslow, 177 F.Supp.2d 977, 981 (C.D. Cal. 2001). Further, "[a]lthough 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." Carmen, 982 F.Supp. at 1401; see also Hewett v. Willingboro Bd. of Educ., 421 F.Supp.2d 814, 816 (D.N.J. 2006); Schiappa v. Brookhaven Sci. Assocs., LLC, 403 F.Supp.2d 230, 234 (E.D.N.Y. 2005); McLaughlin Transp. Sys. v. Rubinstein, 390 F.Supp.2d 50, 57 (D. Mass. 2005); Marrero v. Modern Maint. Bldg. Servs., 318 F.Supp.2d 721, 723 (E.D. Wis. 2004); Roper v. Exxon Corp., 27 F. Supp.2d 679, 685 (E.D. La. 1998).
1. 42 U.S.C. § 1983 Claim ...