Opinion
No. 2:01-cv-610-FTM-29DNF
January 9, 2003
ORDER
This matter comes before the Court on plaintiff's Motion to Dismiss Counterclaim (Doc. #44), filed on August 26, 2002. Defendant's Response (Doc. #47) in opposition was filed on September 23, 2002. Plaintiff seeks to dismiss the Counterclaim (Doc. #38) filed by Divco Construction Corporation.
In deciding a motion to dismiss, the Court must accept all factual allegations in the Counterclaim as true and take them in the light most favorable to defendant. Christopher v. Harbury, ___ U.S. ___, 122 S.Ct. 2179, 2181 (2002). A Counterclaim should not be dismissed unless it appears beyond doubt that defendant can prove no set of facts that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted); Marsh v. Butler County, Alabama, 268 F.3d 1014, 1022 (11th Cir. 2001) (en banc). To satisfy the pleading requirements of Fed.R.Civ.P. 8, a Counterclaim must simply give the plaintiff fair notice of what the defendant's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). However, dismissal is warranted under Fed.R.Civ.P. 12(b)(6) if, assuming the truth of the factual allegations of defendant's counterclaim, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir. 1992). Having reviewed the Counterclaim, the Court finds that plaintiff has not satisfied the dismissal standard, and therefore the motion will be denied.
Accordingly, it is now
ORDERED:
plaintiff's Motion to Dismiss Counterclaim (Doc. #44) is DENIED. DONE AND ORDERED at Fort Myers, Florida, this 9th day of January, 2003.