Jupiter Aluminum Corporation v. Sabaitis et al

Filing 50

OPINION AND ORDER DENYING AS MOOT IN PART and DENYING IN PART 37 Amended MOTION for Extension of Time to File (motion to dismiss state law claims) by Defendant Scrap Metal Services, LLC. Signed by Magistrate Judge Paul R Cherry on 3/15/2016. (lhc) Modified on 3/17/2016 (lhc).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JUPITER ALUMINUM CORPORATION, )
Plaintiff,
)
)
v.
)
)
PHILIP J. SABAITIS, LOREN D. JAHN, )
SCRAP METAL SERVICES, LLC,
)
MICHAEL L. THOMPSON, GMI
)
SERVICES LLC d/b/a GMI RECYCLING )
SERVICES, INC., and GARY S.
)
LONGORIA,
)
Defendants.
)

CAUSE NO.: 2:16-CV-30-RLM-PRC

OPINION AND ORDER
This matter is before the Court on Scrap Metal LLC’s Motion for Extension of Time to
Address State Law Claims [DE 37], filed by Defendant Scrap Metal LLC (“Scrap Metal”) on
February 26, 2016. Plaintiff Jupiter Aluminum Corporation filed a response on March 14, 2016. In
the motion, Scrap Metal requests an extension of time to move, answer, or otherwise respond to the
state law claims in the Complaint. Scrap Metal has previously filed a partial motion to dismiss the
complaint under Rule 12.
Regarding an extension of time to file an answer to the state law claims, no motion is needed.
When a party files a partial motion to dismiss, the deadline for filing a responsive pleading regarding
the unchallenged claims is automatically extended to fourteen days after the motion to dismiss is
resolved. See Fed R. Civ. P. 12(a)(4)(A); Shah v. KIK Int’l LLC, No. 3:06-CV-712, 2007 WL
1876449, at *1 (N.D. Ind. June 26, 2007) (finding, pursuant to the previous version of Rule
12(a)(4)(A), a ten-day period after a ruling on a partial motion to dismiss in which to respond to all
counterclaims); Oil Express Nat., Inc. v. D’Alessandro, 173 F.R.D. 219, 221 (N.D. Ill. 1997)

(“Plaintiffs have until ten (10) days after this Court resolves the partial motion to dismiss to file a
responsive pleading regarding any of KIK’s remaining counterclaims.”).
Regarding Rule 12 defenses to the state law claims, the defenses under Rule 12(b)(2)-(5) are
waived in future motions because there is a previously filed Rule 12 motion. See Fed. R. Civ. P.
12(h)(1)(A). The defense of lack of subject matter jurisdiction may be raised at any time, so no
extension is needed. See Fed. R. Civ. P. 12(h)(3). After an initial motion to dismiss under Rule 12,
the defenses under 12(b)(6) or (7), though not waived, may only be raised in a pleading, in a motion
for judgment on the pleadings, or at trial. Fed. R. Civ. P. 12(h)(2). The timing for these three ways
to raise the defenses will fall either at or after the requested deadline given by Scrap metal, so no
motion is necessary.
Though the defenses listed in Rule 12(b)(6)-(7) are not waived, Scrap Metal requests an
extension of time to make a motion under Rule 12. Rule 12(g)(2) places limits on motions brought
under Rule 12 in the interest of avoiding piecemeal litigation. Ennenga v. Starns, 677 F.3d 766, 773
(7th Cir. 2012). Consequently, Scrap Metal’s motion impliedly requests not only an extension of
deadlines but also the Court’s permission to contravene the Rule 12(g)(2) limitation on successive
Rule 12 motions. Scrap Metal has not identified, and the Court has not found, any authority
permitting the Court to allow Scrap Metal to avoid the 12(g)(2) limitation on motions.
Based on the foregoing, the Court hereby DENIES as moot in part and DENIES in part
Scrap Metal LLC’s Motion for Extension of Time to Address State Law Claims [DE 37]. The
motion is denied as moot to the extent it requests an extension of time to file an answer to the state
law claims, to file a motion to dismiss based on lack of subject matter jurisdiction, or to raise a

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defense in accordance with Rule 12(h)(2). The motion is denied to the extent it requests an extension
of time to file or permission to file a motion to dismiss under 12(b)(2)-(7).
SO ORDERED this 15th day of March, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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