Opinion
3:23-cv-00961-SB
12-07-2023
STEVEN PATTERSON, Plaintiff, v. KEVIN TILLSON, SUSAN SNELL, and JOHN C. O'BRIEN, Defendants.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Steven Patterson (“Patterson”), a self-represented litigant, filed this action against Defendants Kevin Tillson (“Tillson”),Susan Snell (“Snell”), and John C. O'Brien (“O'Brien”) alleging claims of discrimination, breach of contract, and violations of the First and Seventh Amendments.
The Court directs the Clerk of the Court to correct the docket to reflect the accurate spelling of the defendant's name: Kevin Tillson (not “Tillsman”). (See generally Def.'s Answer, ECF No. 13; Def.'s Mot. Dismiss (“Def.'s Mot.”), ECF No. 21.)
The Court has already dismissed Patterson's claims against Judge Patrick Henry. (Order, ECF No. 23; Findings & Recommendation, ECF No. 19.)
Now before the Court is Tillson's motion to dismiss (ECF No. 21). The Court has jurisdiction over Patterson's claims pursuant to 28 U.S.C. §§ 1331 and 1332, but not all parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636. For the reasons that follow, the Court recommends that the district judge grant Tillson's motion.
BACKGROUND
The estate of Patterson's grandmother is the subject of an ongoing probate proceeding in Multnomah County Circuit Court. (See Compl. at 4, ECF No. 1.) Patterson alleges that the personal representatives in the probate proceeding, Snell and O'Brien, engaged in wrongful acts. (Id. at 1.) Patterson names Tillson in the caption of his complaint but does not include any specific factual allegations against him. (See id. at 1-12.) Patterson did not file a response to Tillson's motion to dismiss.
DISCUSSION
Tillson moves to dismiss Patterson's claims under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) on the ground that Patterson fails to state a plausible claim for relief against him. (Def.'s Mot. at 2.)
I. LEGAL STANDARDS
A motion to dismiss for failure to state a claim “must be made before pleading if a responsive pleading is allowed.” FED. R. CIV. P. 12(B)(6); see alsoMacDonald v. Grace ChurchSeattle, 457 F.3d 1079, 1081 (9th Cir. 2006) (“A Rule 12(b)(6) motion must be made before the responsive pleading.” (quoting Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004))).
“When a Rule 12(b) motion is untimely filed, however, a court may deny the motion to dismiss as untimely, or it may consider the Rule 12(b)(6) motion to dismiss as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).” Mazal Grp., LLC v. Barak, No. 18-cv-4983-DMG-FFMX, 2018 WL 11352629, at *1 (C.D. Cal. Dec. 27, 2018) (simplified); see also MacDonald, 457 F.3d at 1081 (“[T]he defendants filed their motion to dismiss after filing their answer. Thus, the motion should have been treated as a motion for judgment on the pleadings, pursuant to Rule 12(c)[.]”) (simplified).
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” FED. R. CIV. P. 12(C). “A judgment on the pleadings is properly granted when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law.” Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 591 (9th Cir. 2008) (quoting Dunlap v. Credit Prot. Ass'n, L.P., 419 F.3d 1011, 1012 n.1 (9th Cir. 2005) (per curiam)). “Analysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (simplified); see also Dworkin v. Hustler Mag. Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) (noting that “[t]he principal difference between motions filed pursuant to Rule 12(b) and Rule 12(c) is the time of filing” and the motions are “functionally identical”). In other words, as with a Rule 12(b)(6) motion, when evaluating a motion for judgment on the pleadings, “a court must assess whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Chavez, 683 F.3d at 1108 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (simplified).
II. MOTION FOR JUDGMENT ON THE PLEADINGS
Tillson filed an Answer two months before filing the instant motion. (See Def.'s Answer, ECF No. 13.) Accordingly, his Rule 12(b)(6) motion is untimely. The Court therefore construes Tillson's motion as a motion for judgment on the pleadings. See Weishampel v. Circle of Child., No. 6:18-cv-00429-AA, 2019 WL 4544269, at *3 (D. Or. Sept. 19, 2019) (“Because [the defendant] filed this Motion after filing its Answer, the Motion to Dismiss will be considered as a motion for judgment on the pleadings.”).
The Court agrees that in the absence of any specific factual allegations in the complaint about Tillson, Patterson has failed to state a plausible claim for relief. See Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007))).
Accordingly, the Court recommends that the district judge grant Tillson's motion, and dismiss Patterson's claims against Tillson without prejudice. See Knappenberger v. City of Phx., 566 F.3d 936, 942 (9th Cir. 2009) (holding that when granting a motion for judgment on the pleadings, “[l]eave to amend should be granted unless the district court ‘determines that the pleading could not possibly be cured by the allegation of other facts'”) (citations omitted); Ulloa v. Securitas Sec. Servs. USA, Inc., No. 23-cv-01752-DMR, 2023 WL 5538276, at *3 (N.D. Cal. Aug. 28, 2023) (construing the defendant's Rule 12(b)(6) motion as a motion for judgment on the pleadings and granting the motion in part with leave to amend); Weishampel, 2019 WL 4544269, at *5 (same).
The Court need not reach Tillson's alternative argument for dismissal. (Def.'s Mot. at 46.)
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT Tillson's motion to dismiss, which the Court construes as a motion for judgment on the pleadings (ECF No. 21), dismiss Patterson's claims against Tillson without prejudice, and order Patterson to file an amended complaint within thirty days if he is able to cure the pleading deficiencies discussed herein.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.