Coble

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

INTRODUCTION

Plaintiffs Lisa Coble (“Coble”) and Randell Parker (“Parker”) filed a First Amended Complaint (“FAC”) against Defendants Mark DeRosia and the City of Delano on February 14, 2011. Defendants move to dismiss the FAC pursuant to Rule 12(b)(1) and Rule 12(h)(3) of the Federal Rules of Civil Procedure. In their motion, Defendants argue, inter alia, that Coble lacks standing to bring her claims and that Parker, as bankruptcy trustee, is judicially estopped from pursuing Coble’s claims. Defendants frame their judicial estoppel argument as part of their motion to dis miss for lack of subject matter jurisdiction under Rules 12(b)(1) and 12(h)(3). Judicial estoppel, however, is an affirmative defense and does not attack jurisdiction. See Fed.R.Civ.P. 8(c). Therefore, Defendants’ judicial estoppel argument is more properly considered under Rule 12(b)(6). See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910 , 166 L.Ed.2d 798 (2007) (a complaint may be subject to dismissal under Rule 12(b)(6) if the face of the pleadings establish the affirmative defense). For the reasons that follow, the motion is granted…