Scott v. Morgan et al

Filing 43

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Shanta Pribbles Motion to Dismiss (Doc. 33 ) is DENIED without prejudice. Signed by District Judge John A. Ross on 10/8/15. (JAB)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION KERWIN D. SCOTT, Plaintiff, vs. JERRY W. MORGAN, et al., Defendants. ) ) ) ) ) ) ) ) ) Case No. 4:14-CV-01853-JAR MEMORANDUM AND ORDER This matter is before the Court on Defendant Shanta Pribble’s Motion to Dismiss (Doc. 33). Defendant moves to dismiss Plaintiff Kerwin Scott’s claim against her pursuant to Federal Rule of Civil Procedure 12(b)(6). However, a Rule 12(b)(6) Motion to Dismiss “must be made before pleading if a responsive pleading is allowed” and Defendant filed an answer prior to filing her Motion to Dismiss.1 FED. R. CIV. P. 12(b). Therefore, Defendant’s Motion to Dismiss is untimely. Although the Court could construe Defendant’s Motion as a Motion for Judgment on the Pleadings pursuant to 12(c), the Court is unsure that this is Defendant’s intent. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). If Defendant would like to move for judgment on the pleadings, Defendant may do so in a separate motion. Accordingly, IT IS HEREBY ORDERED that Defendant Shanta Pribble’s Motion to Dismiss (Doc. 33) is DENIED without prejudice. Dated this 8th day of October, 2015. _______________________________ JOHN A. ROSS UNITED STATES DISTRICT JUDGE 1 Defendant Shanta Pribble filed an answer on January 6, 2015 (Doc. 16) and her Motion to Dismiss on April 9, 2015 (Doc. 33). 1

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