Barnes v. Mortell et al

Filing 47

ORDER by Judge Kandis A. Westmore denying 34 Motion to Dismiss. (kawlc1, COURT STAFF) (Filed on 10/16/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KRISTINE BARNES,

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Case No. 14-cv-02373-KAW

Plaintiff,
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ORDER DENYING DEFENDANTS'
MOTION TO DISMISS

v.
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RICK MORTELL, et al.,

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Dkt. No. 34

Defendants.

United States District Court
Northern District of California

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On September 12, 2014, individual defendants Eric (Rick) Mortell, Darlene Mortell, and

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Erika Mortell filed a motion to dismiss Plaintiff Kristine Barnes’ complaint pursuant to Federal

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Rule of Civil Procedure 12(b)(6). (Defs.’ Mot., Dkt. No. 34 at 2.)1
Defendants, however, have already answered the complaint and, therefore, cannot properly

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file a motion to dismiss. Should Defendants wish to properly assert that one or more claims are

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barred by the applicable statute of limitations, they may file a motion for judgment on the

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pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Notwithstanding, Defendants’ motion seeks resolution of several issues of disputed fact

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that may only be adjudicated by way of a motion for summary judgment. Fed. R. Civ. P. 56.

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Summary judgment is appropriate when, after adequate discovery, there is no genuine issue as to

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material facts and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v.

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Catrett, 477 U.S. 317, 322-23 (1986). For example, whether Defendants Darlene Mortell and

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Erika Mortell were ever employed full time by Bay Islands Enterprises Investments, S.A. de C.V.

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is an issue of fact that cannot be resolved on a motion to dismiss or on a motion for judgment on

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The named corporate defendants did not join in this motion.

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the pleadings. Also, the truth of the allegations in the complaint cannot be decided on a motion to

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dismiss or a judgment on the pleadings, because all allegations are treated as true.

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Defendants are again advised to obtain counsel, as the corporate entities involved must

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appear through an attorney licensed to practice in the jurisdiction. See, e.g., D-Beam Ltd. P'ship v.

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Roller Derby Skates, Inc., 366 F.3d 972, 973 (9th Cir. 2004).

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United States District Court
Northern District of California

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In light of the foregoing, the Court finds this matter suitable for resolution without oral
argument pursuant to Civil Local Rule 7-1(b), and DENIES Defendants’ motion to dismiss.
IT IS SO ORDERED.
Dated: October 16, 2014
______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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