Apex Colors Inc v. Chemworld International Limited, Inc. et al

Filing 452

OPINION AND ORDER denying 434 Motion to Dismiss for Failure to State a Claim. The Court declines to award sanctions as requested by Plaintiff in its response brief. Signed by Magistrate Judge Paul R Cherry on 1/6/17. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
APEX COLORS, INC.,
Plaintiff,
v.
CHEMWORLD INTERNATIONAL
LIMITED, INC., et al,
Defendants.

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CAUSE NO.: 2:14-CV-273-PRC

OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Second Amended
Consolidated Complaint [DE 434], filed by Defendants Chemworld International Limited, Inc.,
Chemworld International Limited, LLC, Atul Modi, Manoj Modi, and Paul Bykowski on November
15, 2016. Plaintiff Apex Colors, Inc. filed a response on November 29, 2016, arguing that the
Motion to Dismiss is untimely and should otherwise be denied on the merits. Defendants have not
filed a reply, and the time to do so has passed.
Plaintiff filed the Second Amended Consolidated Complaint on September 13, 2016. The
deadline for Defendants to respond was September 27, 2016. See Fed. R. Civ. P. 15(a)(1)(3). No
answer was filed. The instant Motion to Dismiss was filed on November 15, 2016, seven weeks after
a response was due.
Federal Rule of Civil Procedure 12(b) provides that certain defenses, including the failure
to state a claim upon which relief can be granted–may be asserted by motion “made before
pleading.” Fed. R. Civ. P. 12(b). Defendants have provided no explanation for the untimely filing
and have not asked the Court to extend the deadline to respond to the Second Amended
Consolidated Complaint. Therefore, the instant motion is untimely and is denied on that basis. See
Gillo v. Gary Cmty. Sch. Corp., No. 2:14-CV-99, 2014 WL 3767680, at *2-3 (N.D. Ind. July 31,
2014).

Moreover, as argued by Plaintiff, Defendants’ substantive arguments are not well taken.
First, Defendants argue that Plaintiff was required to attach evidence to the Second Amended
Complaint to “substantiate” its allegations. Federal Rule of Civil Procedure 8(a) requires notice
pleading, which is met by stating a claim that is plausible on its face. See Huri v. Office of the Chief
Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 833 (7th Cir. 2015) (“Plausibility does not
mean probability: a court reviewing a 12(b)(6) motion must ‘ask itself could these things have
happened, not did they happen.’” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Defendants
do not argue that Plaintiff has failed to state a claim. Defendants offer no law supporting their
argument that Plaintiff was required to attach “supporting exhibits.” Defendants’ argument is not
well taken, and the motion to dismiss is denied on this basis.
Second, Defendants are also arguing that Plaintiff is required to plead allegations that would
anticipate and refute Defendants’ defense that Finos, not Apex, was the true owner of the assets that
Apex has accused Defendants of stealing and misappropriating. “A complaint states a claim on
which relief may be granted whether or not some defense is potentially available. This is why
complaints need not anticipate and attempt to plead around defenses.” United States v. Northern
Trust Co., 372 F.3d 886, 888 (7th Cir. 2004). Defendants’ arguments related to its defenses are not
well taken, and the motion to dismiss is denied on this basis.
Based on the foregoing, the Court hereby DENIES the Defendants’ Motion to Dismiss
Second Amended Consolidated Complaint [DE 434]. In the Court’s discretion, the Court declines
to award sanctions under 28 U.S.C. § 1927 as requested by Plaintiff in its response brief.
So ORDERED this 6th day of January, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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