Dortch v. BellSouth Telecommunications, Inc.

Filing 18

Order denying 17 MOTION to Dismiss filed by BellSouth Telecommunications, Inc.. The parties have not complied with the Scheduling Order regarding the joint statement setting out the present status of settlement negotiations. Settlement Position now due by 10/19/2011. Signed by Magistrate Judge Bert W. Milling, Jr on 10/13/2011. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

GABRIEL DORTCH,

:
:
Plaintiffs,
:
:
v.
:
:
BELLSOUTH COMMUNICATIONS, INC., :
:
Defendant.
:

CIVIL ACTION 10-0669-KD-M

ORDER

Plaintiff has filed a Motion to Dismiss (Doc. 17).
Plaintiff’s Motion is DENIED (Doc. 17).
This action was filed in the Mobile County Circuit Court on
November 1, 2010 by Plaintiff against Defendant, claiming fraud
and deceit (see Doc. 1).

The action was removed to this Court

on December 3, 2010 (Doc. 1).

Defendant filed an answer to the

complaint on December 6, 2010 (Doc. 4).
was September 30, 2011 (Doc. 11).

The discovery cutoff

Defendant filed its Motion to

Dismiss on October 12, 2011 on the basis of Rule 12(b)(6) of the
Federal Rules of Civil Procedure (Doc. 17).
Rule 12(b) states that “[e]very defense to a claim for
relief in any pleading must be asserted in the responsive
pleading if one is required.”

As noted previously, Defendant

filed an answer on December 6, 2010 (Doc. 4).
1

Rule 12(b) further states that “a party may assert the
following defenses by motion:

[] failure to state a claim upon

which relief can be granted.”

Fed.R.Civ.P. 12(b)(6).

However,

the rule goes on to state that “[a] motion asserting any of
these defenses must be made before pleading if a responsive
pleading is allowed.”

Fed.R.Civ.P. 12(b) (emphasis added).

In this action, responsive pleadings were required.
Accordingly, the filing of this Motion, just before motions for
summary judgment are due,1 comes too late.

See Leonard v.

Enterprise Rent a Car, 279 F.3d 967, 971 n.6 (11th Cir. 2002)
(“After answering the complaint, the defendants filed Rule
12(b)(6) motions to dismiss the plaintiffs' claims.

Under Rule

12(b), these motions were a nullity; by filing an answer, the
defendants had eschewed the option of asserting by motion that
the complaint failed to state a claim for relief).

Because

Defendant did not avail itself of the opportunity to file this
Motion in a timely manner, as set out in Fed.R.Civ.P. 12(b), it
comes too late and must be DENIED.
The Court further notes that the Rule 16(b) Scheduling
Order also instructed the parties as follows:

“On or before

September 30, 2011, the parties shall confer for the purpose of

1

Motions for summary judgment are due no later than October 21,
2011 (Doc. 11, ¶ 11).

2

discussing settlement and shall file with the Clerk of Court a
joint statement setting out the present status of settlement
negotiations (without disclosing figures) and whether mediation
or a settlement conference would be helpful” (Doc. 11, ¶ 12)
(emphasis in original).

As of this date, the parties have not

complied with the Scheduling Order in this regard.

Therefore,

the parties are ORDERED to file this statement with the Court,
not later than October 19, 2011.
DONE this 13th day of October, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

3