Opinion
Civil Action No. 12-cv-00147-CMA-KLM
04-24-2012
MARC A. KURTZ, Plaintiff, v. STATE OF NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT DIVISION OF WORKERS COMPENSATION, STATE OF NEW JERSEY OFFICE OF SPECIAL COMPENSATIONS FUNDS (SECOND INJURY FUND), PETER CALDERONE, Director and Chief Judge, and BRADLEY HENSON, SR., Supervising Judge, Defendants.
MINUTE ORDER
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff's Motion to Strike Affirmative
Defenses [Docket No. 36; Filed April 24, 2012] (the "Motion"). Plaintiff asks the Court to strike Defendants' pending Motion to Dismiss Amended Complaint [#33] pursuant to Fed. R. Civ. P. 12(f).
Rule 12(f) provides that, on motion or sua sponte, "[t]he court may strike from a pleading an insufficient defense . . . ." Pursuant to Rule 7(a), only certain filings constitute a pleading, e.g., a complaint, or an answer to a complaint. A Rule 12(b) motion does not constitute a pleading, and is not subject to Rule 12(f). E.g., Sanchez v. United Parcel Serv. Inc., No. CV10-1586 PHX DGC, 2011 WL 3510908, *2 (D. Ariz. Aug. 10, 2011) ("A Rule 12(b) motion is not a pleading, and therefore is not subject to Rule 12(f)."). Accordingly, IT IS HEREBY ORDERED that the Motion is DENIED.
IT IS FURTHER ORDERED, sua sponte, that Plaintiff shall file a Response to Defendants' Motion to Dismiss on or before May 9, 2012. No further extensions of time will be granted. If Plaintiff fails to file a Response to the Motion to Dismiss, the Court will recommend that this matter be dismissed for Plaintiff's failure to prosecute.
The Court reminds Plaintiff that, to the extent that he feels he cannot bear the responsibility at this time, he may voluntarily dismiss his case without prejudice pursuant to Fed. R. Civ. P. 41(a). However, while the case is pending, it remains Plaintiff's legal obligation to comply with the Federal Rules of Civil Procedure, the Local Rules in this District, and all orders of this Court. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).