Wilborn v. Wolf ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HAROLD L. WILBORN Case No.: 20cv1981-LAB (BGS) 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. EX PARTE MOTION FOR LEAVE TO FILE JUDGMENT ON 14 ALEJANDRO MAYORKAS THE PLEADINGS 15 Defendant. 16 17 Plaintiff Harold Wilborn submitted a document for filing, captioned as follows: 18 “Plaintiff’s Request (Motion) for Judicial Notice, Joint Motion(s), (1) Constitutional 19 Violation of Fifth Amendment Under Title VII. (2) Motion for Judgment on the 20 Pleading 12(c).” [sic] Most of the document consists of citations and legal 21 arguments strung together. It also improperly seeks to bring renewed requests for 22 reconsideration of scheduling and procedural issues that have no effect on the 23 outcome of this case, and for which reconsideration was already denied. However, 24 it appears Wilborn is also trying to file a motion for judgment on the pleadings. The 25 Court therefore construes this document as an ex parte motion for leave to file a 26 judgment on the pleadings raising the arguments mentioned in the motion. So 27 construed, the motion is DENIED. 28 / / / 1 The motion says Wilborn has repeatedly called for a hearing date on a 2 motion and has left messages, but has not received a call back. The Court has 3 not, however, received any calls or voicemails from Wilborn. In any event, the 4 Court understands that Wilborn would like to file a motion for judgment on the 5 pleadings, and that he wants the Court to set a hearing date. 6 While judgment on the pleadings can be available to a plaintiff in some 7 circumstances, see Fed. R. Civ. P. 12(c) (providing that “a party” can move for 8 judgment on the pleadings), it is unavailable here, where Defendant’s time to file 9 a responsive pleading has not yet expired. See id. (permitting a party to move for 10 judgment on the pleadings after the pleadings are closed). See also Doe v. United 11 States, 419 F.3d 1058, 1061 (9th Cir. 2005) (holding that motion for judgment on 12 the pleadings filed before defendant answered should have been denied as 13 premature). 14 The nature of Wilborn’s claims also makes it impossible for him to prevail on 15 a Rule 12(c) motion. As the plaintiff in this employment discrimination case, he 16 bears the burden of establishing a prima facie case by a preponderance of 17 evidence. See Kimbrough v. Sec. of U.S. Air Force, 764 F.2d 1279, 1282 (9th Cir. 18 1985) (citing Tex. Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 252–53 19 (1981)). Only after this does the burden shift. Kimbrough at 1282–83. Ultimately, 20 he bears the burden of proof. Id. Wilborn’s motion is based solely on his own 21 allegations, which are not enough to make out a prima face case. See Outlaw v. 22 United Airlines, Inc., 2011 WL 1135165, at *6 (D. Haw. Mar. 24, 2011) (holding 23 that plaintiff’s unsupported and conclusory allegations were insufficient to establish 24 a prima facie case for discrimination). To prevail on a 12(c) motion, Wilborn would 25 need to present evidence. But if he did this, his motion would instead be treated 26 as one for summary judgment under Fed. R. Civ. P. 56. See Hal Roach Studios v. 27 Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). 28 / / / 1 This is the latest in a series of confused and futile motions. Before filing any 2 ||more motions, Wilborn is directed to wait until Defendant files his answer or other 3 ||response, or until the time for Defendant to answer or respond has expired. 4 5 IT IS SO ORDERED. 6 || Dated: May 19, 2021 8 Honorable Larry Alan Burns 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28