The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER (1) CONVERTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS INTO A MOTION TO DISMISS AND (2) GRANTING DEFENDANT'S MOTION TO DISMISS [Motion filed on May 13, 2010]
This matter comes before the Court on a Motion for Summary Judgment filed by the defendant International Brotherhood of Electrical Workers, Local 11 ("the Union"). As of the date of this order, the plaintiff William Culfin ("Plaintiff") has not filed an opposition. After considering the papers submitted by the Union, the Court grants the motion and adopts the following order.
Plaintiff, an electrician and a member of the Union, was dispatched to various job sites in Los Angeles County. (Compl. ¶ 4.) Plaintiff's terms and conditions of employment were governed by collective bargaining agreements signed by the Union and employer contractors. (Id. ¶ 5.)
The gravamen of Plaintiff's complaint is that from May 2007 through May 2009, agents of the Union slandered and harassed him by telling others that he was not competent, failing to prosecute his grievances, and subjecting him to excessive drug testing in violation of the written drug testing policies. (Id. ¶ 8.) Plaintiff alleges that these acts amounted to "blacklisting" him. (Id.)
On January 22, 2010, Plaintiff filed suit against Defendant in Los Angeles Superior Court, alleging three causes of action: (1) violation of public policy, (2) violation of the duty of fair representation, and (3) unfair business practices. After being served with process on March 17, 2010, Defendant timely removed on April 15, 2010.
II. PROCEDURAL POSTURE AND LEGAL STANDARD
Federal Rule of Civil Procedure 12(c) provides that "[a]fter 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. P. 12(c). The Ninth Circuit has held that "the pleadings are closed for the purposes of Rule 12(c) once a complaint and answer have been filed," and that a motion for judgment on the pleadings is "premature" where no answer has yet been filed. Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005). However, where a defendant files a motion for judgment on the pleadings prior to filing an answer, "it is within the court's discretion whether to treat the motion as one to dismiss or as one for summary judgment." Knight v. Storex Sys., Inc., 739 F. Supp. 739, 743 (N.D.N.Y. 1990) (citing Williams v. Walnut Park Plaza, 68 F. Supp. 957, 959 (E.D. Pa. 1946)); cf. Elvig v. Calvin Prebyterian Church, 375 F.3d 951, 954 (9th Cir. 2004) (treating a motion to dismiss pursuant to Rule 12(b)(6) that was filed after an answer as a motion for judgment on the pleadings pursuant to Rule 12(c)). Here, Defendant has not filed an answer to the Complaint. Therefore, the Court will treat the motion for judgment on the pleadings as though it were a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the Plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, "all allegations of material fact are accepted as true and should be construed in the light most favorable to [the] plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).
In Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief" (internal quotation marks omitted)).
A. Claims are Subject to Dismissal Under the Local Rules
Under the local rules, any opposition to a motion must be filed not later than twenty-one days before the hearing and failure to file a timely opposition may be deemed consent to granting the motion. C.D. Cal. Civ. Local R. 7-9; 7-12. Because this motion was noticed for a hearing on Monday, June 14, 2010, Plaintiff's opposition was due by no later than May 24, 2010. As of the date of this Order, Plaintiff has not filed anything in response to Defendant's motion. For that reason alone, it would be appropriate for the Court to grant ...