Opinion
Civil Action No. 12-cv-00736-WYD-KMT
05-11-2012
LUCAS DEMAESTRI, Plaintiff, v. AARGON AGENCY, INC., Defendant.
Chief Judge Wiley Y. Daniel
ORDER
THIS MATTER is before the Court on Plaintiff's Motion for Default Judgment, filed May 7, 2012 [ECF No. 17]. Plaintiff served Defendant Aragon Agency, Inc. with a copy of the Summons and Amended Complaint on April 12, 2012 [ECF No. 10]. On May 1, 2012, Defendant Aragon filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) [ECF No. 13]. Rule 12(b)(6) states that a party may assert the defense of failure to state a claim upon which relief can be granted by motion, and that a motion asserting this defense must be made before pleading if a responsive pleading is allowed. Rule 12(a)(4) further provides that the service of such a motion alters the period for answering a complaint. Moomchi v. Univ. of N.M., 72 F.3d 138 (10 Cir. 1995); Fed. R. Civ. P. 12. Since Defendant Aragon submitted a timely defensive pleading in the form of its motion to dismiss, it cannot be deemed to have been in default. Therefore, it is hereby
ORDERED that Plaintiff's Motion for Default Judgment, filed May 7, 2012 [ECF No. 17] is DENIED.
BY THE COURT:
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WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE