FCA Construction Company, LLC v. Singles Roofing Company, Inc. et al

Filing 33

MEMORANDUM OPINION AND ORDER denying 19 Defendant's Motion to Dismiss for Lack of Prosecution (Written Opinion). Signed by Judge Ann D. Montgomery on 05/10/2011. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

FCA Construction Company, LLC,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 09-3700 ADM/AJB

v.
Singles Roofing Company, Inc. and
Robert Durchslag,
Defendants.

______________________________________________________________________________
Tim L. Droel, Esq., and J. Matthew Berner, Esq., Hellmuth & Johnson, PLLC, Edina, MN, on
behalf of Plaintiff.
Robert Durchslag, pro se.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the undersigned United States District Judge for a ruling on
Defendant Robert Durchslag’s (“Durchslag”) “Motion to Dismiss for Want of Prosecution”
[Docket No. 19]. For the reasons stated below, Durchslag’s motion is denied.
II. BACKGROUND
Plaintiff FCA Construction Company, LLC (“FCA Construction”) filed this action on
December 23, 2009 alleging causes of action including breach of contract, civil theft, and
conversion. On December 9, 2010, the parties held a telephone conference with Chief
Magistrate Judge Arthur J. Boylan. According to Durchslag, during the conference, Judge
Boylan ordered FCA Construction to amend its Complaint to clarify whether the claims it was
asserting were against Durchslag or Defendant Singles Roofing Company, Inc., or both. That
same day, Judge Boylan issued a Pretrial Scheduling Order [Docket No. 17] establishing

February 1, 2011, as the deadline for amended pleadings. The deadline passed and FCA
Construction did not file an amended pleading. On February 10, 2011, Durchslag filed the
instant motion.
III. DISCUSSION
While Defendant argues that Judge Boylan ordered FCA Construction to file an amended
complaint, the Pretrial Scheduling Order does not include such a condition. The Pretrial
Scheduling Order merely states: “All motions which seek to amend the pleadings or add parties
must be served by February 1, 2011.” Beyond this, the Order makes no reference to an amended
complaint, much less require one.
Moreover, for amendments other than those as a matter of course, Rule 15(a)(2) states: “ .
. . a party may amend its pleading only with the opposing party’s written consent or the court’s
leave.” (Emphasis added). The language is permissive, not mandatory. There is no authority to
suggest that Plaintiff was required to file an amended Complaint.1

1

In his reply brief, Durchslag also seeks dismissal for failure to plead fraud with
particularity. However, Durchslag’s motion was titled “Motion to Dismiss for Want of
Prosecution” and his opening brief confines the basis for dismissal to FCA Construction’s failure
to prosecute. Because Durchslag raised the insufficiency of the pleading issue for the first time
in his reply brief and FCA Construction has not had an adequate opportunity to respond, the
Court declines to consider this issue. See Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 564 n.1
(8th Cir. 2003) (courts generally do not consider arguments raised for the first time in a reply
brief).
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IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Robert Durchslag’s Motion to Dismiss [Docket No. 19] is
DENIED.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: May 10, 2011.

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