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Barnes v. Mortell

United States District Court, N.D. California

December 4, 2014

KRISTINE BARNES, Plaintiff,
v.
RICK MORTELL, et al., Defendants.

ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS DKT. NO. 50

KANDIS A. WESTMORE, Magistrate Judge.

On October 27, 2014, individual defendants Eric (Rick) Mortell, Darlene Mortell, and Erika Mortell filed a motion for judgment on the pleadings to dispose of Plaintiff Kristine Barnes' complaint pursuant to Federal Rule of Civil Procedure 12(c). (Defs.' Mot., Dkt. No. 50.)[1]

Upon review of the parties' papers, the Court finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, DENIES Defendants' motion for judgment on the pleadings.

I. BACKGROUND

On May 22, 2014, Plaintiff Kristine Barnes filed this action for fraud and to void her contract in connection with her attempted purchase of two condominiums in Honduras that she claims were never built and was instead a scheme to defraud buyers. (Compl., Dkt. No. 1.) Plaintiff named Defendants Rick Mortell (a.k.a. Eric Mortell), Darlene Mortell, Erika Mortell, Bay Islands Enterprises Inc., and Bay Islands Enterprises Investments S.A. DE C.V. (a.k.a. Viva Roatan Resort and Viva Wyndham Resort). Id. Plaintiff claims that she learned of the alleged fraud and breach of contract in the summer of 2012, when she discovered that the title company she used to facilitate the purchase was not a legitimate title company. (Compl. ΒΆ 16.)

On June 18, 2014, Eric Mortell (a.k.a. Rick Mortell), appearing pro se, filed an answer and a motion to dismiss on behalf of himself and other unspecified defendants. (Dkt. No. 7.)

On June 27, 2014, Defendants Eric Mortell, Darlene Mortell, Erika Mortell, and Bay Islands Enterprises Investments S.A. DE C.V., appearing pro se, collectively filed both an amended answer to the complaint and a motion to dismiss. (Dkt. Nos. 13 & 14.) In addition, Eric Mortell signed the pleadings on behalf of Bay Islands Enterprises Investments, despite not being authorized to practice law in the U.S. District Court for the Northern District of California.

On July 18, 2014, Bay Islands Enterprises Investments' answer was stricken on the Court's own motion, because, as a corporation, it must appear through an attorney licensed to practice in the jurisdiction. Default was entered against Bay Islands Enterprises Investments on August 5, 2014.

On September 12, 2014, individual defendants Eric (Rick) Mortell, Darlene Mortell, and Erika Mortell filed a motion to dismiss Plaintiff Kristine Barnes' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On October 16, 2014, the Court denied the motion to dismiss, because the individual defendants had already answered the complaint and, therefore, could not properly file a motion to dismiss.

On October 27, 2014, the individual defendants filed a motion for judgment on the pleadings. (Defs.' Mot., Dkt. No. 50.) On November 7, 2014, Plaintiff filed an opposition. (Dkt. No. 55.) Defendants did not file a reply, which was due on November 20, 2014, so the motion is fully briefed.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. "[T]he same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog, " because the motions are "functionally identical." Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A Rule 12(c) motion may thus be predicated on either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal claim. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When considering a motion to dismiss under Rule 12(c), the court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

Although a court is generally confined to the pleadings on a Rule 12(c) motion, "[a] court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).[2] The Ninth Circuit has "extended the incorporation by reference' doctrine to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

When a court grants a Rule 12(c) motion, leave to amend should be freely given if it is possible that further factual allegations will cure any defect. See Somers v. ...


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