Equal Employment Opportunity Commission v. Joe Ryan Enterprises, Inc.

Filing 30

ORDER directing the Dft to provide the Court with written clarification on or before Monday, 10/29/2012, as to whether Dft's intention is to withdraw the counterclaim it asserted against Plf in its Second Amended Answer in its entirety; that if Dft does not intend to withdraw the counterclaim it asserted against Plf in its Second Amended Answer in its entirety, Dft is further ORDERED to show cause on or before Monday, 10/29/2012, as to why Dft's 29 Response to Plf's Motion to Dismiss Counterclaim in Second Amended Answer should not be stricken from the record as untimely filed. Signed by Honorable Judge Mark E. Fuller on 10/24/2012. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
JOE RYAN ENTERPRISES, INC.,

Defendant.

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CASE NO. 3:11-cv-795-MEF
(WO - Do Not Publish)

ORDER
Before the Court is Plaintiff’s Motion to Dismiss Defendant’s Counterclaim in
Defendant’s Second Amended Answer (Doc. #26) and Supporting Memorandum of Law
(Doc. #27). Specifically, Plaintiff seeks to dismiss the counterclaim asserted in Defendant’s
Second Amended Answer on the basis that: (1) it disregards the Court’s instructions in its
July 9, 2012 Order concerning the obligations of Defendant’s counsel in filing any
counterclaims (Doc. #24); (2) it fails to state a claim upon which relief can be granted; (3)
this Court lacks subject matter jurisdiction over the counterclaim; and (4) Defendant failed
to assert the counterclaim in compliance with Rules 9(a)(1)(A) and (b) of the Federal Rules
of Civil Procedure. (Doc. #26.)
On September 12, 2012, Defendant was ordered to file its response, if any, to
Plaintiff’s motion no later than October 2, 2012. (Doc. #28.) This deadline came and passed,
however, without Defendant filing any response. Instead, on October 9, 2012, a week after

its October 2, 2012 deadline, Defendant filed its Response to Plaintiff’s Motion to Dismiss
Counterclaim in Second Amended Answer. (Doc. #29.) Notably, Defendant did not file a
motion seeking the Court’s permission to file its response out of time. Nor did Defendant
provide the Court with any good cause as to why its response was filed out of time. Even
more confusing is the fact that Defendant prepared and filed a four-page response in
opposition to Plaintiff’s motion, with multiple exhibits, only to withdraw Defendant’s
counterclaim against “certain (unnamed) employees of EEOC” in the final sentence of its
response. (Doc. #29) (alterations to original).
Having considered the foregoing, Defendant is hereby ORDERED to provide the
Court with written clarification on or before Monday, October 29, 2012, as to whether
Defendant’s intention is to withdraw the counterclaim it asserted against Plaintiff in its
Second Amended Answer in its entirety. If Defendant does not intend to withdraw the
counterclaim it asserted against Plaintiff in its Second Amended Answer in its entirety,
Defendant is further ORDERED to show cause on or before Monday, October 29, 2012,
as to why Defendant’s Response to Plaintiff’s Motion to Dismiss Counterclaim in Second
Amended Answer (Doc. #29) should not be stricken from the record as untimely filed.
DONE this the 24th day of October, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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