Irwin Financial Corporation, et al v. EMPP, Inc.

Filing 22

ORDER denying as moot 15 Motion to Dismiss Counts/Claims. Signed by Judge David G Campbell on 9/9/2008.(NVJ)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Irwin Financial Corporation, an Indiana ) ) corporation; and Irwin Mortgage ) Corporation, and Indian corporation, ) Plaintiffs/Counterdefendant, ) ) ) vs. ) E.M.P.P., Inc., an Arizona corporation, ) ) Defendant/Counterclaimant. ) ) )

No. CV-08-631-PHX-DGC ORDER

Irwin Mortgage Corporation has filed a motion to dismiss EMPP's counterclaim and an alternative motion for a more definite statement. Dkt. #15. EMPP has responded by filing an amended counterclaim. Dkt. #21. Because a motion to dismiss is not a "responsive pleading" within the meaning of Rule 15 of the Federal Rules of Civil Procedure, EMPP was entitled to file its amended counterclaim as a matter of course. See Fed. R. Civ. P. 15(a); Allwaste, Inc. v. Hecht, 65 F.3d
1523, 1530 (9th Cir. 1995) (citing Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d

1393, 1401 (9th Cir. 1986)). In light of the amended counterclaim, the Court will deny the motion to dismiss the original counterclaim and the alternative motion for a more definite statement as moot.

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IT IS ORDERED that Irwin Mortgage Corporation's motion to dismiss counterclaim and alternative motion for more definite statement (Dkt. #15) are denied as moot. DATED this 9th day of September, 2008.

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