Dipilato v. Rudd & Diamond, P.A. et al

Filing 98

ORDER denying 94 Motion to Dismiss as waived; denying as moot 97 Motion for Extension of Time to File Response. Signed by Judge James I. Cohn on 9/2/2011. (prd)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 10-62492-CIV-COHN ANGELA DIPILATO, individually, Magistrate Judge Seltzer Plaintiff, vs. RUDD & DIAMOND, P.A., a Florida corporation, PETER A. DIAMOND, individually, MICHAEL RUDD, individually, OCEAN 4660, LLC, a Florida limited liability company, COMERICA BANK, a Michigan corporation, and REMO POLSELLI, individually, Defendants. _______________________________________/ ORDER DENYING DEFENDANT COMERICA BANK’S MOTION TO DISMISS AS UNTIMELY UNDER FED. R. CIV. P. 12(b)(6) THIS CAUSE is before the Court upon transfer of the case to the undersigned, Defendant Comerica Bank’s Motion to Dismiss Plaintiff’s Second Amended Complaint [DE 94] and Plaintiff’s Motion to Extend Time to File a Response [DE 97]. The Court has carefully considered the motions and is otherwise fully advised in the premises. Plaintiff Angela DiPilato (“Plaintiff”), acting pro se, filed a lengthy Second Amended Complaint [DE 58] on March 30, 2011. The prior assigned judge granted the parties’ request for a stay during settlement negotiations [DE 62]. After notice that this effort was unsuccessful, the prior Court reopened the case on June 29, 2011 [DE 69]. On July 25, 2011, Defendants Peter Diamond, Michael Rudd and Rudd & Diamond, P.A. moved to dismiss the Second Amended Complaint [DE 77]. Defendant Coamerica Bank filed its Answer to the Second Amended Complaint on July 28, 2011 [DE 83], while Defendants Ocean 4660 and Remo Polselli filed Answers on August 15, 2011 [DE’s 95 and 96]. After the prior assigned judge entered a recusal, this case was transferred to the undersigned [DE 88]. On August 11, 2011, two weeks after filing its Answer, Defendant Coamerica Bank filed a motion to dismiss the Second Amended Complaint based upon Federal Rule of Civil Procedure 12(b)(6) [DE 94]. Plaintiff has moved to extend her time to file her opposition to the motion to dismiss [DE 97]. Upon a simple review of the docket, it appears that Comerica Bank has waived its right to file a Rule 12(b)(6) motion because it had already filed a responsive pleading. After listing seven defenses that may be filed in a motion, Rule 12(b) states that “[a] motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.” Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002) (“because a responsive pleading – an answer – had been filed, under the plain language of Rule 12(b), a motion to dismiss would have been inappropriate”). This does not mean that Comerica Bank has waived its defense of failure to state a claim, it just means that it has waived its right to file a Rule 12(b) motion. Accordingly, it is ORDERED AND ADJUDGED as follows: 1. Defendant Comerica Bank’s Motion to Dismiss Plaintiff’s Second Amended Complaint [DE 94] is hereby DENIED as moot by operation of Fed. R. Civ. P. 12(b); 2. Plaintiff’s Motion to Extend Time to File a Response [DE 97] is hereby DENIED as moot. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 2nd day of September, 2011. Copies furnished to: Angela DiPilato, pro se (via CM/ECF regular mail) counsel of record on CM/ECF 2

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