MCCURDY v. SMITH et al

Filing 14

ORDER dismissing without prejudice 13 Motion for Extension of Time to Respond to Plaintiff's Complaint. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARK MCCURDY,
Plaintiff,
v.
DONALD SMITH, et al.,
Defendants.

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1:13-cv-00277-JAW

ORDER ON DEFENDANTS’ MOTION TO EXTEND TIME TO RESPOND TO
PLAINTIFF’S COMPLAINT
On July 26, 2013, Mark McCurdy filed a complaint in this Court for
declaratory and injunctive relief against Donald Smith and Betsy Fitzgerald
pursuant to 42 U.S.C. § 1983. Compl. (ECF No. 1). On October 21, 2013, the
Defendants moved to dismiss the Complaint for lack of jurisdiction. Defs.’ Mot. to
Dismiss (ECF No. 12). On the same day, they also filed a motion to extend time to
respond to the Complaint until “twenty-one . . . days from . . . the date the Court
rules on the motion to dismiss if the ruling is that the Court has subject matter
jurisdiction.” Mot. to Extend Defs.’ Time to Resp. to Pl.’s Compl. (ECF No. 13). Mr.
McCurdy has not had time to respond to the motion to extend time, but the Court
assumes that he objects to the motion.
The Defendants’ motion is largely superfluous.

Federal Rule of Civil

Procedure 12(a)(1)(A)(i) fixes twenty-one days after a party is served with the

summons and complaint as the day a responsive pleading is due. However, Rule
12(a)(4)(A) provides:
Unless the court sets a different time, serving a motion under this rule
alters these periods as follows:
(A) If the court denies the motion or postpones its disposition until
after trial, the responsive pleading must be served within 14 days after
notice of the court’s action.
By rule, therefore, the Defendants are not required to serve a responsive pleading
until 14 days after they receive notice of the Court’s action on their pending motion
to dismiss, if the Court denies it. As the Defendants ask for twenty-one days from
the date of the Court’s ruling on the pending motion to dismiss, the effect of their
motion is to seek to extend the fourteen day period in Rule 12(a)(4)(A) by seven
days.
The Court dismisses the motion without prejudice.

The Court is well

acquainted with Mr. McCurdy from other matters and it is aware that he is
especially sensitive to any Court rulings before he has responded.

In fact, in

another matter when the Court granted what seemed to be a non-controversial
motion to stay without first hearing his position, Mr. McCurdy moved for this
Judge’s recusal on the ground that the Court had treated him “as a non-entity, a
mere spectator to these proceeding[s].” United States v. McCurdy, 1:06-cr-00080JAW, Mot. for Recusal at 13 (ECF No. 288) (Jan. 14, 2013).
As this motion extends the period for serving a responsive pleading by only
seven days and as Mr. McCurdy has not yet had an opportunity to respond, the
Court DISMISSES the motion for extension without prejudice.
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Of course, the

Defendants are free to file a motion to extend the time to respond within the
fourteen day period for response if they elect to do so.
The Court DISMISSES without prejudice Defendants’ Motion to Extend
Defendants’ Time to Respond to Plaintiff’s Complaint (ECF No. 13).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 22nd day of October, 2013

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