Opinion
Case No. 4:14-CV-01889-JAR
04-06-2015
LUCAR, LLC, Plaintiff, v. TRADENET ENTERPRISES, INC. d/b/a VANTAGE LED, Defendant.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Tradenet Enterprises, Inc. d/b/a Vantage LED's Motion to Dismiss (Doc. 13). Defendant moves to dismiss Plaintiff Lucar, LLC's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). However, a Rule 12(b)(6) Motion to Dismiss "must be made before pleading if a responsive pleading is allowed" and Defendant filed an answer prior to filing its Motion to Dismiss. FED. R. CIV. P. 12(b). Therefore, Defendant's Motion to Dismiss is untimely. Although the Court could construe Defendant's Motion as a Motion for Judgment on the Pleadings pursuant to 12(c), the Court is unsure that this is Defendant's intent. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). If Defendant would like to move for judgment on the pleadings, Defendant may do so in a separate motion.
Defendant's answer was filed on November 25, 2014 (Doc. 6).
Accordingly,
IT IS HEREBY ORDERED that Defendant Tradenet Enterprises, Inc. d/b/a Vantage LED's Motion to Dismiss (Doc. 13) is DENIED without prejudice.
Dated this 6th day of April, 2015.
/s/_________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE