Azike v. Knutdson

Filing 27

ORDER that the Defendant's Motion to Dismiss 15 is denied without prejudice, subject to re-assertion; the Plaintiff's Motion to Amend the Complaint 18 isgranted; the Plaintiff's Objection to Motion to Dismiss 19 is denied as moot ;the Plaintiff immediately will file the Amended Complaint that now appears at Filing No. 18-2, without any change, as a separate docket entry; and both Defendants, E-Loan and Eric Knutdson, will respond to the Amended Complaint within the time allowed by Fed. R. Civ. P. 15(a). Ordered by Judge Laurie Smith Camp. (CJP)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA UGONWA AZIKE, Plaintiff, v. E-LOAN, INC., and ERIC KNUTDSON, d/b/a CAR NATION, Defendants. ) ) ) ) ) ) ) ) ) ) CASE NO. 8:09CV37

ORDER

This matter is before the Court on Defendant E-Loan, Inc.'s ("E-Loan") Motion to Dismiss (Filing No. 15), filed pursuant to Fed. R. Civ. Pro. 12(b)(6), and the Plaintiff's Motion to Amend the Complaint (Filing No. 18). The Court denies without prejudice E-Loan's Motion to Dismiss, subject to reassertion. Fed. R. Civ. Pro. 12 only permits the filing of a Motion to Dismiss pursuant to section (b)(6) so long as the Defendant files the Motion before filing a responsive pleading. See Fed. R. Civ. Pro. 12(b)(6)("A motion asserting [a 12(b)(6)] defens[e] must be made before pleading if a responsive pleading is allowed."). Because E-Loan has already filed its Answer (Filing No. 8), Fed. R. Civ. Pro. 12(b) does not permit the subsequent filing of a 12(b)(6) Motion to Dismiss. The Court grants the Plaintiff's Motion to Amend the Complaint (Filing No. 18). In granting the Plaintiff's Motion to Amend the Complaint, the Court orders both Defendants, E-Loan and Eric Knutdson, to file a responsive pleading in compliance with Fed. R. Civ. Pro. 15(a).

ACCORDINGLY: IT IS ORDERED: 1. The Defendant's Motion to Dismiss (Filing No. 15) is denied without prejudice, subject to re-assertion; 2. The Plaintiff's Motion to Amend the Complaint (Filing No. 18) is granted; 3. The Plaintiff's Objection to Motion to Dismiss (Filing No. 19) is denied as moot; 4. The Plaintiff immediately will file the Amended Complaint that now appears at Filing No. 18-2, without any change, as a separate docket entry; and 5. Both Defendants, E-Loan and Eric Knutdson, will respond to the Amended Complaint within the time allowed by Fed. R. Civ. P. 15(a).

DATED this 4th day of May, 2009. BY THE COURT:

s/Laurie Smith Camp United States District Judge

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