United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is defendant Joseph Sorge's motion to dismiss. (Doc. # 16). Plaintiff James Parker filed a response in opposition, or in the alternative, counter motion for leave to amend (doc. # 17) and defendant filed a reply (doc. #18).
On or about October 29, 2011 plaintiff and defendant were riding motorcycles together on a trip to Red Rock Canyon. Each operated his own motorcycle. While riding, plaintiff was injured in a one rider, one motorcycle accident. Defendant owned the motorcycle plaintiff was riding at the time of the crash.
Plaintiff alleges that he was operating the motorcycle "at the request and direction of [d]efendant" and that defendant knew plaintiff "had little to no experience riding a motorcycle." Plaintiff further alleges that defendant "voluntarily assumed the duty to provide direction and instruction to the [p]laintiff" on how to appropriately operate a motorcycle, in part, because defendant chose the route they would take to Red Rock Canyon.
Plaintiff initiated this case in the Eighth Judicial District, and defendant removed the case to federal court. (Doc. # 1). Plaintiff alleges that defendant's negligent instruction of plaintiff caused, or at least contributed to plaintiff's motorcycle accident. ( See doc. # 1).
a) Timeliness of defendant's motion to dismiss
Fed. R. Civ. P. 12(b) provides in pertinent part that motions to dismiss for a failure to state a claim upon which relief can be granted "must be made before pleading if a responsive pleading is allowed." Fed.R.Civ.P. 12(b). Here, defendant filed an answer (doc. # 7) on January 7, 2014 to plaintiff's complaint ( see doc. # 1). In his answer, defendant pleaded plaintiff's failure to state a claim upon which relief can be granted as his first affirmative defense. ( See doc. # 1). Approximately six months later, on June 20, 2014, defendant then filed its motion to dismiss plaintiff's complaint. (Doc. # 16).
Plaintiff alleges that defendant's motion to dismiss is untimely under Fed.R.Civ.P. 12(b), because defendant filed an answer to the complaint prior filing the instant motion to dismiss. Plaintiff argues that the mandatory wording of Fed.R.Civ.P. 12(b) requires defendant's motion to dismiss be disqualified. The court disagrees with plaintiff's conclusion and will consider defendant's motion as a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c).
II. Legal Standard
When an answer is filed before a motion to dismiss is filed, the latter then becomes a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980); see also Moonin v. Nevada ex rel. Dep't of Pub. Safety, No. 3:12-CV-00353-LRH, 2014 WL 204915 at *2 (D. Nev. Jan 17, 2014). Under Fed.R.Civ.P. 12(c), "[a]fter 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).
The legal standard for motions for judgment on the pleadings under Fed.R.Civ.P. 12(c) is "functionally identical" to motions to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
In reviewing a motion for judgment on the pleadings 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). Judgment on the pleadings is appropriate when, taking everything in the 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. MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006).
The court will, therefore, review defendant's motion to dismiss as a Fed.R.Civ.P. 12(c) motion ...