Sokal et al v. Upsher-Smith Laboratories, Inc. et al

Filing 12

ATTACHED ORDER denying 10 Motion to Dismiss. Signed by Judge Richard A. Lazzara on 2/13/2007. (CCB)

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Sokal et al v. Upsher-Smith Laboratories, Inc. et al Doc. 12 Case 8:07-cv-00213-RAL-TGW Document 12 Filed 02/13/2007 Page 1 of 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JUDITH SOKAL as Personal Representative to the Estate of Wilbur Denny Arant, GARY S. ARANT, DEBORA A. ARANT, and CHRISTOPHER D. ARANT, Plaintiffs, v. UPSHER-SMITH LABORATORIES, INC., HEALTHSOUTH REAL PROPERTY HOSPITAL OF SARASOTA, L.P., and ALBERTSON'S, INC. d/b/a SAV-ON PHARMACY, Defendants. / ORDER CASE NO: 8:07-cv-213-T-26TGW Upon due consideration, Defendant Albertson's Partial Motion to Dismiss or Strike Plaintiff's Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. 10) is denied because it is a nullity in light of the filing of its answer and affirmative defenses. As the Eleventh Circuit Court of Appeals has noted, "by filing an answer, the defendant[] ha[s] eschewed the option of asserting by motion [under Rule 12(b)(6)] that the complaint failed to state a claim for relief." Leonard v. Enterprise Rent A Car, 279 F. 3d 967, 971 n.6 (11th Cir. 2002). DONE AND ORDERED at Tampa, Florida, on February 13, 2007. s/Richard A. Lazzara RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE COPIES FURNISHED TO: Counsel of Record

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