Summary
dismissing as moot a motion to dismiss when the defendant filed an answer while a Report and Recommendation on the motion to dismiss was pending
Summary of this case from Telebrands Corp. v. 1byone Prods. Inc.Opinion
Case No. 3:15-cv-1102-J-32JBT
02-10-2016
JESSICA VELTRE, Plaintiff, v. SLIDERS SEASIDE GRILL, INC., Defendant.
ORDER
THIS CAUSE is before the Court on Defendant Sliders Seaside Grill, Inc.'s Motion to Dismiss Plaintiff's Complaint (Doc. 4), filed on October 9, 2015, and the Report and Recommendation by the assigned United States Magistrate Judge (Doc. 14), filed on January 26, 2016. Defendant filed an Answer, Affirmative Defenses, and Counterclaim on February 8, 2016. (Doc. 15.)
"A defendant is not required to file an answer until [the] court disposes of the motion to dismiss." Smith v. Bank of America, N.A., No. 2:11-cv-676-FtM-29DNF, 2014 WL 897032, at *9 (M.D. Fla. Mar. 6, 2014) (citing Lockwood v. Beasley, 211 F. App'x 873 (11th Cir. 2006)). Where, as here, an Answer was filed prior to the resolution of the motion to dismiss, the motion becomes moot. See id. ("An Answer filed contemporaneously with the filing of a Motion to Dismiss renders the motion moot and makes it procedurally impossible for the Court to rule on the motion to dismiss." (quotation marks omitted)); Zucco Partners, LLC v. Findwhat.com, Nos. 2:05-cv-201-FtM-29DNF, 2:05-cv-213-FtM-29DNF, 2:05-cv-233-FtM-29DNF, 2:15-cv-236-FtM- 29DNF, 2:05-cv-271-FtM-29DNF, 2005 WL 5921170, at *1 n.2 (M.D. Fla. July 27, 2005) (denying as moot defendants' motions to dismiss in light of answers filed by defendants).
Accordingly, it is hereby
ORDERED:
1. Defendant's Motion to Dismiss (Doc. 4) is MOOT.
2. The Clerk is directed to terminate the Report and Recommendation (Doc. 14).
DONE AND ORDERED in Jacksonville, Florida the 10th day of February, 2016.
/s/_________
TIMOTHY J. CORRIGAN
United States District Judge ab
Copies: Honorable Joel B. Toomey
United States Magistrate Judge Counsel of record