Dye v. Washtenaw County Sheriff Department et al

Filing 12

ORDER denying without prejudice 6 Defendants' Motion to Dismiss. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DWAYNE DYE,
Plaintiff,
Case No. 2:11-cv-13967

v.
WASHTENAW COUNTY SHERIFF
DEPARTMENT, et al.,
Defendants.
/

ORDER DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION TO DISMISS
Plaintiff filed his complaint in this action on September 12, 2011. On October 3,
2011, Defendants, instead of filing an answer, filed a motion to dismiss this action under
Federal Rule of Civil Procedure 12(b)(6). Plaintiff responded on October 14, 2011, and
filed an amended complaint. Under Federal Rule of Civil Procedure 15, a party may
amend its complaint once as a matter of course within 21 days after service of a motion
filed under Rule 12(b) in lieu of a responsive pleading. See Fed. R. Civ. P. 15(a)(1)(B).
Plaintiff filed his amended complaint within the 21-day window, so it is now his operative
pleading. Therefore, because Defendants’ motion to dismiss addresses the original
complaint, it must be denied without prejudice. Accordingly,
IT IS ORDERED that Defendants’ motion to dismiss [Dkt. # 7] is DENIED
WITHOUT PREJUDICE. In accordance with Rule 12(a)(1), Defendants have 21 days

after service of Plaintiff’s amended complaint to file an answer or a renewed motion to
dismiss under Rule 12(b).1

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: October 19, 2011

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, October 19, 2011, by electronic and/or ordinary mail.

s/Lisa G. Wagner
Case Manager and Deputy Clerk
[phone]

1

On October 14, 2011, Defendants filed a “Reply to Response to Motion to
Dismiss in Lieu of Responsive Pleadings and to Renew Motion to Dismiss to Apply to
Amended Complaint.” In that filing, Defendants requested that “their Motion to Dismiss
be renewed and applied to the Amended Complaint as well, because the legal
arguments therein apply equally to the Plaintiff’s Amended Complaint and it would be a
waste of judicial resources to entertain a separate motion that re-asserts the same
arguments and legal authority.” (Defs.’ Reply Mot. Dismiss 1.) The court commends a
party’s effort to be expeditious and economical, however, Defendants cannot combine a
renewed motion to dismiss with a reply applicable to their original motion to dismiss.
Further, the court cannot entertain a hybrid motion to dismiss that purports to address
both the original and amended complaint, even if, as Defendants allege, the same legal
arguments apply to both complaints. Therefore, this filing does not amount to a
renewed motion to dismiss, which Defendants must file independently from their briefing
on the original motion to dismiss.
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