Cunningham v. Schopp et al

Filing 47

ORDER STRIKING MOTION TO DISMISS AND VACATING HEARING AND SETTING DEADLINE BY WHICH PLAINTIFF SHALL FILE MOTION FOR LEAVE TO FILE AMENDED COMPLAINT. Motion for Leave to File An Amended Complaint due by 11/24/2014. Signed by Judge JEFFREY S. WHITE on 11/3/14. (jjoS, COURT STAFF) (Filed on 11/3/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ARCHIBALD CUNNINGHAM,
Plaintiff,

For the Northern District of California

United States District Court

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No. C 14-03033 JSW
ORDER STRIKING MOTION TO
DISMISS AND VACATING
HEARING AND SETTING
DEADLINE BY WHICH
PLAINTIFF SHALL FILE
MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT

v.
MARIA SCHOPP, et al.,
Defendants.

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On July 2, 2014, Plaintiff filed the Complaint in this case. (Docket No. 1.) On July 22,

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2014, Defendants Maria Schopp and Mary Wang filed their Answer. (Docket No. 7.) On

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September 5, 2014, Defendants Schopp and Wang filed a joinder to the motion to dismiss filed

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by the City and County of San Francisco. (Docket No. 30.) On September 12, 2014, the Court

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denied the joinder without prejudice to filing a proper motion to dismiss. (Docket No. 34.)

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Because this case had been reassigned from another district court judge, the Court inadvertently

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overlooked the fact that Schopp and Wang had filed an Answer before filing their joinder.

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Pursuant to Federal Rule Civil 12(b), a motion asserting the defense of failure to state a

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claim on which relief may be granted, “must be made before pleading if a responsive pleading

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is allowed.” An answer is a “pleading.” Fed. R. Civ. P. 7(a)(2). Ms. Schopp and Ms. Wang’s

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motion to dismiss under Rule 12(b)(6) is untimely and procedurally improper.1 Because they

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filed an Answer, they should have filed a motion for judgment on the pleadings. Fed. R. Civ. P.

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The Court also notes that Defendants’ legal analysis in support of their motion
to dismiss is woefully inadequate. Defendants must do more than assert Plaintiff’s claims
are “defective” and make reference to statutes and case law. Rather, the Defendants should
apply that law to the facts alleged in Plaintiff’s complaint.
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12(c1). Accordingly, the Court STRIKES the motion to dismiss and VACATES the hearing

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scheduled for December 19, 2014.

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In his case management statement and his response to an Order to Show Cause, Plaintiff

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has stated that he intends to seek leave to file an amended complaint. Accordingly, the Court

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HEREBY ORDERS Plaintiff to file his motion for leave to file an amended complaint by no

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later than November 24, 2014. Because this case is related to earlier filed cases, Plaintiff shall

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notice his motion for a hearing that is open and available for terminal digits 1 and 2.

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IT IS SO ORDERED.
Dated: November 3, 2014
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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