ORDER GRANTING UNION PACIFIC'S MOTION FOR JUDGMENT ON THE PLEADINGS
This matter comes before the Court on Defendant Union Pacific Railroad Company's ("Union Pacific") Motion for Judgment on the Pleadings (Doc. #8). Union Pacific seeks dismissal of all claims asserted against it in the Complaint ("Complaint", Doc. #1) filed by Plaintiff Leah Cook ("Plaintiff"). Plaintiff opposes the motion*fn1 in its "Oppoisition [sic.] to Defendan't [sic.], Union Pacific Railroad Company's Demurrer (Doc. #11).*fn2
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is a former employee of Defendant CUSA CSS, LCC 3
("Coach"). Plaintiff began working for Coach on or about August 4
2008. She was employed as a Crew Transport driver. Specifically, 5 she transported Union Pacific employees by van from their various 6 working sites. Plaintiff alleges that she was harassed, battered, 7 and assaulted based primarily on her physical appearance by Union 8
Pacific and Coach employees. 9
Plaintiff alleges six causes of action: 1) Severe and pervasive harassment based on sex in violation of California Government Code § 12900, et seq. ("FEHA"); 2) Intentional infliction of emotional distress; 3) Constructive termination in violation of public policy; 4) Assault and battery; 5) Negligent retention and supervision; and 6) Negligent infliction of emotional distress. Coach removed the action to this Court based upon 28 U.S.C. § 1332.
1. Motion for Judgment on the Pleadings
The principal difference between a Rule 12(b) motion to dismiss and a Rule 12(c) judgment on the pleadings is the time of filing. A motion for judgment on the pleadings occurs "[a]fter the pleadings are closed -- but early enough not to delay trial."
Fed.R.Civ.P. 12(c). "Because the motions are functionally identical, the same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog." Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
A party may move to dismiss an action for failure to state a 2 claim upon which relief can be granted pursuant to Federal Rules of 3 Civil Procedure 12(b)(6). In considering a motion to dismiss, the 4 court must accept the allegations in the complaint as true and draw 5 all reasonable inferences in favor of the plaintiff. Scheuer v. 6 Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by 7 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 8 322 (1972). Assertions that are mere "legal conclusions," however, 9 are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
While Rule 12(c) of the Federal Rules of Civil Procedure does not expressly provide for partial judgment on the pleadings, neither does it bar them; it is common to apply Rule 12(c) to individual causes of action. See Moran v. Peralta Community College District, 825 F.Supp. 891, 893 (N.D.Cal. 1993). "Courts have discretion to grant leave to amend in conjunction with 12(c) motions, and may dismiss causes of action rather than grant judgment." Id. When a court finds the pleadings deficient, it must then decide whether to grant leave to amend. In general, leave to amend is only denied if it is clear that amendment would be futile and "that the deficiencies of the complaint could not be cured by amendment." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curium). 2