ONEAMERICA FINANCIAL PARTNERS, INC. v. T-SYSTEMS NORTH AMERICA, INC. et al

Filing 60

ORDER denying 48 Motion to Strike 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and granting 49 Motion for Extension of Time to File Response to 2/2/2016 to the motion to dismiss. Signed by Magistrate Judge Denise K. LaRue on 1/19/2016. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ONEAMERICA FINANCIAL
PARTNERS, INC.,
Plaintiff,
vs.
T-SYSTEMS NORTH AMERICA, INC.,
et al.,
Defendants.

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No. 1:15-cv-01534-TWP-DKL

Entry and Order on Plaintiff’s Motion to Strike Defendants’ Rule 12(b)(6) Motion to
Partially Dismiss Complaint as Untimely [Dkt. #48] and Plaintiff’s Motion for
Extension of Time to Respond to Motion to Partially Dismiss Complaint [Dkt. #49]
District Judge Tanya Walton Pratt has referred the following motions to the
undersigned for ruling: Plaintiff’s Motion to Strike Defendants’ Rule 12(b)(6) Motion to
Partially Dismiss Complaint as Untimely [Dkt. #48] and Plaintiff’s Motion for Extension of
Time to Respond to Motion to Partially Dismiss Complaint [Dkt. #49].
Plaintiff contends that Defendants’ motion to dismiss should be stricken because
it was filed after Defendants answered the Complaint and Rule 12(b)(6) motions are
supposed to be filed before answering the complaint. Defendants’ Answers stated that
Plaintiff failed to state a claim. [See dkt. ## 18, 19, 22.] Defendants’ motion to dismiss
also asserts that Plaintiff has failed to state a claim and is made in part under Fed. R. Civ.
P. 12(b)(6).

A motion to dismiss for failure to state a claim can be included in an answer. Fed.
R. Civ. P. 12(h)(2). A “12(b)(6) motion filed after an answer has been filed is to be treated
as a 12(c) motion for judgment on the pleadings….” McMillan v. Collection Prof’ls Inc., 455
F.3d 754, 757 n.1 (7th Cir. 2006). Therefore, the motion to dismiss should be converted to
a Fed. R. Civ. P. 12(c) motion and the motion to strike should be denied.
Plaintiff seeks an extension of time within which to respond to Defendants’ Motion
to Partially Dismiss Complaint until 14 days after the Court rules on Plaintiff’s Motion to
Strike. In seeking the enlargement of time, Plaintiff relied on the fact that it had moved
to strike the motion to dismiss. If the motion to strike were granted, no response would
have been required. Under the circumstances, the request for additional time until after
the Court ruled on the motion to strike was reasonable, and Plaintiff has requested a
modest enlargement of time. The motion should be granted.
Accordingly, Plaintiff’s Motion to Strike Defendants’ Rule 12(b)(6) Motion to Partially
Dismiss Complaint as Untimely [Dkt. #48] is DENIED and Plaintiff’s Motion for Extension of
Time to Respond to Motion to Partially Dismiss Complaint [Dkt. #49] is GRANTED.
Plaintiff’s response to the motion to dismiss is due 14 days from the date entered below.
SO ORDERED THIS DATE: 1/19/2016

Electronic Distribution to All Counsel of Record

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