The Morrish National Republic: Federal Government Moorish Divine and National Movement of the World et al v. City of Chicago et al

Filing 97

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 5/27/2011:Before the Court are the following: (1) Plaintiffs motion to state for the public record by what authority does the court dismiss Plaintiffs prior motion to rule on docket entri es 49 and 50 89 , (2) Plaintiffs motion to strikepending motion docket entry 43 and deadline to file reply brief 91 , and (3) Plaintiffs objections to docket entry 88 93 . For the reasons stated below, the motions [89, 91] are denied and the objections 93 are overruled. Inview of this ruling, the notice of motion date of 5/31/2011 is stricken and no appearances are necessary on that date. Notices Mailed by Judge's Staff (tbk, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert M. Dow, Jr.

CASE NUMBER

10 C 1047

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

5/27/2011

The Moorish National Republic, et al. vs. City of Chicago, et al.

DOCKET ENTRY TEXT

Before the Court are the following: (1) Plaintiffs’ motion to state for the public record by what authority does
the court dismiss Plaintiffs’ prior motion to rule on docket entries 49 and 50 [89], (2) Plaintiffs’ motion to strike
pending motion docket entry 43 and deadline to file reply brief [91], and (3) Plaintiffs’ objections to docket entry
88 [93]. For the reasons stated below, the motions [89, 91] are denied and the objections [93] are overruled. In
view of this ruling, the notice of motion date of 5/31/2011 is stricken and no appearances are necessary on that
date.
O[ For further details see text below.]

Docketing to mail notices.Notices mailed by Judicial staff.

STATEMENT
Plaintiffs’ motions and objections appear to take the position that Plaintiffs are entitled to an order of default (and
perhaps a default judgment) because Defendants did not file (and have not to this date filed) an answer to
Plaintiffs’ complaint. Plaintiffs’ contention rests on a fundamental misapprehension of the Federal Rules of Civil
Procedure, which the Court explained in its May 24 minute order [88] and will further explicate here.
Federal Rule of Civil Procedure 12 governs the time to file a responsive pleading. As the Court previously noted,
Rule 12 permits a party to file a motion to dismiss a complaint instead of filing an answer. The docket sheet in
this case reflects that Defendants filed a motion to dismiss the complaint [43] on September 30, 2010. In fact,
counsel for Defendants advised the Court and Plaintiffs that Defendants would proceed in such fashion at a
September 21, 2010 status hearing and the Court set a briefing schedule on the anticipated motion to dismiss at
that time [see 40]. Briefing on the original motion to dismiss was suspended by court order [see 59] dated
November 29, 2010, following the filing by Defendants of a motion to dismiss this case on a different ground
– namely, alleged misrepresentations by Plaintiff Sheik Love EL in his IFP application. After that second motion
to dismiss was denied and Plaintiffs paid the sanction imposed in lieu of dismissal, the Court lifted the stay on
briefing of the first motion to dismiss and set a deadline for the filing of the reply brief. The salient point is that
because Defendants’ first motion to dismiss remains pending before the Court, Defendants have been (and
continue to be) under no obligation to file an answer to the complaint. Rule 12(a)(4) spells this out: “serving a
motion under this rule” – which Defendants did on September 30, 2010 – “alters these periods as follows: (A)
if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served
within 14 days after notice of the court’s action.” Fed. R. Civ. P. 12(a)(4). The bottom line is that the soonest
that an answer on behalf of Defendants conceivably could be due in this case is 14 days after the Court denies
the pending motion to dismiss in the event that the motion is in fact denied.
One final point: the fact that the motion to dismiss predates the service of the summons does not alter the
10C1047 The Moorish National Republic, et al. vs. City of Chicago, et al.

Page 1 of 2

STATEMENT
analysis. The docket sheet reflects that Defendants plainly had notice of the complaint and its contents and had
appeared in Court on this matter repeatedly long before the Marshals Service actually executed the summons –
as Plaintiffs undoubtedly were aware because they too were present in open court when counsel for Defendants
stated that the motion to dismiss would be forthcoming and a briefing schedule was set. The complaint was
available on the electronic docket from the beginning of the case. To be sure, Defendants could have waited for
proper service before filing a motion to dismiss or a responsive pleading, but they were not obligated to do so.
By filing their motion to dismiss and not raising any defect in service as a ground for dismissal, Defendants
waived any objection that they may have had concerning the manner in which they were served. The motion to
dismiss is properly before the Court, and the Court will issue a ruling on the motion by mail after considering
all of the briefing on the motion, including the reply brief due on June 14, 2011. Plaintiffs’ motions [89, 91] are
denied and the objections [93] are overruled. In view of this ruling, the notice of motion date of 5/31/2011 is
stricken and no appearances are necessary on that date.

10C1047 The Moorish National Republic, et al. vs. City of Chicago, et al.

Page 2 of 2