Beal et al v. Royal Oak Bar et al

Filing 17

ORDER DENYING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT. Defendants shall file an answer to Plaintiffs' First Amended Complaint no later than March 3, 2014. After doing so, Defendants may file any other motions that are allowed by the Federal Rules of Civil Procedure. Signed by Magistrate Judge Laurel Beeler on 2/26/2014.(lblc2, COURT STAFF) (Filed on 2/26/2014)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
MICHAEL BEAL, et al.,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiffs,
v.

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No. C 13-04911 LB
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS PLAINTIFFS’
FIRST AMENDED COMPLAINT

ROYAL OAK BAR, et al.,
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[Re: ECF No. 13]
Defendants.
_____________________________________/

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Plaintiffs filed their Complaint and instituted this action in San Francisco Superior Court on

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April 29, 2011. Notice of Removal, ECF No. 1 at 1.1 They filed a First Amended Complaint on

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September 13, 2013. Id. at 2; see id., Ex. A, ECF No. 1-2 at 2 (state court docket); id., Ex. D, ECF

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No. 1-7 (First Amended Complaint). Defendants never answered or otherwise responded to it. See

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id., Ex. A, ECF No. 1-2 at 1-2.

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On October 23, 2013, Defendants removed the action to federal court. See id. After all parties

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consented to the undersigned’s jurisdiction, the court held an initial case management conference on

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February 13, 2014. 2/13/2014 Minute Order, ECF No. 12. At it, the court noted that Defendants

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had never answered the complaint, even though the time for doing so passed months before. The

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court then told Defendants’ counsel to file a “pleading” so that the record for this action is clear and

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so Defendants would avoid default (and the subsequent motion practice required to set it aside).

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document.
C 13-04911 LB
ORDER

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Defendants’ counsel told the court that he would file a “pleading” the next day.
The next day Defendants did not file an answer. Instead, Defendants filed a motion to dismiss

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under Federal Rule of Civil Procedure 12. See Motion, ECF No. 13. The court did not permit this.

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The court told Defendants’ counsel to file a “pleading,” and motions to dismiss are not “pleadings.”

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See Fed. R. of Civ. P. 7(a) (only complaints (including counter- and cross- claims), answers, and

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replies to answers are among the “pleadings” allowed in federal court); cf. Fed. R. Civ. P. (7)(a) &

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(b) (distinguishing between “motions and other papers” and “pleadings”).

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In short, the court mentioned Defendants’ failure to file an answer to the First Amended

that failure. Defendants long since missed the time for moving to dismiss. Accordingly, the court

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DENIES Defendants’ motion. Defendants shall file an answer to Plaintiffs’ First Amended

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For the Northern District of California

Complaint to give Defendants a chance to file an answer and avoid the problems that follow from

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UNITED STATES DISTRICT COURT

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Complaint no later than March 3, 2014. After doing so, Defendants may file any other motions that

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are allowed by the Federal Rules of Civil Procedure.

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IT IS SO ORDERED.
Dated: February 26, 2014
_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 13-04911 LB
ORDER

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