1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PROJECT SENTINEL, a California non- No. 1:19-cv-00708-DAD-EPG profit corporation, 12 Plaintiff, 13 ORDER DENYING DEFENDANT’S v. MOTION TO DISMISS 14 MEYER KOMAR, (Doc. No. 29) 15 Defendant. 16

17 18 This matter is before the court on defendant Meyer Komar’s motion to dismiss. (Doc. No. 19 29.) The court reviewed the relevant briefing and deemed the matter suitable for decision on the 20 papers pursuant to Local Rule 230(g). (Doc. No. 35.) For the reasons set forth below, the court 21 denies defendant’s motion. 22 BACKGROUND 23 On May 20, 2019, plaintiff Project Sentinel filed this action, alleging various claims 24 arising from alleged housing discrimination against defendants Meyer Komar, Jeanette Komar, 25 and Sarah Komar (“the Komars”). (Doc. No. 1) 26 The complaint states that Project Sentinel, a non-profit fair housing organization, launched 27 an investigation into the Komars’ rental practices after receiving a complaint of race 28 discrimination from one of the Komars’ neighbors. (Id. at 3.) The investigation consisted of four 1 testers calling the phone number listed on the “For Rent” sign posted outside of the Komars’ 2 rental property. (Id. at 3–5.) Two of the testers were white and two were Black, all of whom had 3 racially-identifiable characteristics. (Id.) According to Project Sentinel, the Komars “simply 4 refus[ed] to take or respond to phone calls from home-seekers believed to be Black,” while 5 “consistently return[ing] phone calls from white callers,” even though “white callers and Black 6 callers left messages mere minutes apart[.]” (Id. at 5.) 7 After defendants Jeanette Komar and Sarah Komar failed to respond to the complaint, the 8 clerk entered default against them on September 24, 2019. (Doc. No. 16.) Meyer Komar is the 9 sole remaining defendant (the “defendant”) in this action. On December 30, 2019, he moved to 10 dismiss the case. (Doc. No. 29.) Plaintiff filed its opposition on January 21, 2020; defendant did 11 not file a reply. (Doc. No. 31.) 12 LEGAL STANDARDS 13 A. Motion to Dismiss 14 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 15 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal 16 “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 17 under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th 18 Cir. 2019) (citation omitted). A plaintiff is required to allege “enough facts to state a claim to 19 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009). 23 In resolving a Rule 12(b)(6) motion, “[a]ll allegations of material fact are taken as true 24 and construed in the light most favorable to the nonmoving party.” Naruto v. Slater, 888 F.3d 25 418, 421 (9th Cir. 2018) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 26 2001)). However, the court need not accept as true allegations that are “merely conclusory, 27 unwarranted deductions of fact, or unreasonable inferences.” Sprewell, 266 F.3d at 988 (citations 28 omitted). Neither must the court “assume the truth of legal conclusions cast in the form of factual 1 allegations.” Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008) (citation 2 omitted). 3 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 4 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 5 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 6 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 7 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements, do not suffice.”). It is also inappropriate to assume that the plaintiff “can prove facts 9 which it has not alleged or that the defendants have violated the . . . laws in ways that have not 10 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 11 U.S. 519, 526 (1983). 12 ANALYSIS 13 In his three-page motion to dismiss under Federal Rule of Civil Procedure 12(b), 14 defendant categorically denies plaintiff’s claims, asserts his factual innocence, and accuses 15 plaintiff of bias by relying on “paid persons to write reports that were designed to incriminate the 16 defendant[.]” (See Doc. No. 29 at 2.) 17 A. Defendant’s Motion to Dismiss Is Untimely 18 As plaintiff points out in its opposition, defendant’s motion to dismiss is untimely. (Doc. 19 No. 31 at 5.) Any motion brought under Rule 12(b) “must be made before pleading if a 20 responsive pleading is allowed.” Fed. R. Civ. P. 12(b) (emphasis added). Here, defendant moved 21 to dismiss on December 30, 2019, nearly five months after he filed an answer on August 8, 2019. 22 (See Doc. Nos. 8, 29.) His motion is therefore untimely under Rule 12(b). See MacDonald v. 23 Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006). 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 B. Defendant Presents No Basis for the Court to Grant Judgment on the Pleadings 2 Even if the court were to treat the pending motion as one for judgment on the pleadings,1 3 see id., it still fails for lack of legal merit. The pending motion merely contains a blanket denial 4 of plaintiff’s claims and an allegation that plaintiff is biased. (Doc. No. 29 at 2.) These 5 arguments miss the purpose of a Rule 12(c) motion, which is to test the legal sufficiency of a 6 complaint and requires the court to take plaintiff’s allegations as true. See Navarro, 250 F.3d at 7 732; Marshall Naify Revocable Tr., 672 F.3d at 623. 8 Though defendant has not challenged whether any of plaintiff’s claims are adequately 9 pled or legally sufficient, the court has nonetheless taken the extra step of preliminarily reviewing 10 the complaint and concludes that plaintiff has alleged cognizable legal theories of housing 11 discrimination and sufficient facts to make its claims facially plausible. Accordingly, defendant’s 12 motion under Rule 12(b), or alternatively, Rule 12(c), must be denied. 13 C. Defendant’s Conduct in the Litigation and His Pro Se Status 14 The court also strongly suggests that defendant retain counsel if he wishes to continue 15 litigating this case. Not only have two of the defendants defaulted in this action (see Doc. No. 16 16), but the assigned magistrate judge has also noted that moving defendant Meyer Komar “has 17 already demonstrated an unwillingness to follow Court orders and abide by his legal obligations 18 in this case.” (Doc. No. 23 at 5.) Likewise, by submitting the instant motion to dismiss, which 19 was both untimely and devoid of legal merit, defendant veers dangerously close to violating Rule 20 11(b)’s requirement that parties only submit motions that have a reasonable basis in law or fact. 21 See Fed. R. Civ. P. 11(b). The court cautions defendant Meyer Komar that “[p]ro se litigants 22 1 Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay trial— 23 a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). In reviewing a motion brought under Rule 12(c), the court “must accept all factual allegations in the complaint as true 24 and construe them in the light most favorable to the nonmoving party.” Fleming v. Pickard, 581 25 F.3d 922, 925 (9th Cir. 2009). Thus, the same legal standard applicable to a Rule 12(b)(6) motion applies to a motion brought pursuant to Rule 12(c). Dworkin v. Hustler Magazine, Inc., 867 F.2d 26 1188, 1192 (9th Cir. 1989). Accordingly, “judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party’s pleadings as true, the moving party is entitled 27 to judgment as a matter of law.” Marshall Naify Revocable Tr. v. United States, 672 F.3d 620, 623 (9th Cir. 2012) (citation omitted). 28 4:40 □□ EO MAR SMMC I eT Oy VI

1 | must follow the same rules of procedure that govern other litigants”, Lee v. Rosen Music Studio, 2 | 776 F. App’x 435, 437 (9th Cir. 2019) (citation omitted),” and that “[d]istrict judges have no 3 | obligation to act as counsel or paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231 4 | (2004) (citation omitted). Any future failure to adhere to the court’s orders or the federal or local 5 } rules could result in the imposition of sanctions, up to and including the entry of judgment against 6 | defendant. 7 CONCLUSION 8 For the reasons stated above, defendant’s motion to dismiss (Doc. No. 29) is denied. 9 | IT IS SO ORDERED. si am Dated: _ June 2, 2020 J al, Al ~ i 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 > Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b). ;