Summary
denying a post-answer Rule 12(b) motion as "improper"
Summary of this case from Johnson v. MyersOpinion
09-CV-2390 (JS) (WDW).
December 21, 2010
Louis Diez, pro se, Bethpage, NY, Attorney for Plaintiff.
Justin F. Capuano, Esq., Cullen and Dykman, LLP, Garden City, NY, Attorney for Defendant.
MEMORANDUM AND ORDER
On March 19, 2010, Defendant answered Plaintiff's pro se Complaint. See Docket No. 14. Nearly eight months later, on November 18, 2010, Defendant inexplicably moved to dismiss under FED. R. CIV. P. 12(b)(6) and (7). See Docket No. 43.
That motion is presently pending. Plaintiff has not yet formally opposed it. No matter. By answering, Defendant waived its right to seek dismissal under Rule 12(b). See Rule 12(b) ("A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed"). Accordingly, this motion is DENIED. In addition, the Court warns Defendant's attorneys that, before moving again under Rule 12(b), they should probably read the rule itself. Any similar motions in the future may result in the Court imposing sanctions under FED. R. CIV. P. 11(b)(2).
See, e.g., Grafas v. TSK Franchise Systems, Inc., 09-CV-4914, 2010 WL 2301295, at *1, 2010 U.S. Dist. LEXIS 54497, at *2 (E.D.N.Y. June 2, 2010) (a post-answer Rule 12(b)(6) motion is "improper"); Federal Ins. Co. v. M/V Villr D'Aquarius, 08-CV-8997, 2009 WL 3398266, *3 (S.D.N.Y. 2009) (Rule 12(b)(6) motion cannot be made after an answer); Leonard v. Enterprise Rent a Car, 279 F.3d 967, 971 n. 6 (11th Cir. 2002).
SO ORDERED.
Dated: Central Islip, New York
December 21, 2010