McLean v. Spring Mountain Treatment Center

Filing 11

ORDER denying 9 Stipulation; Signed by Magistrate Judge Nancy J. Koppe on 8/3/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRIAN MCLEAN,

Case No.: 2:18-cv-01056-GMN-NJK

Plaintiff(s),
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Order

v.
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[Docket No. 9]
SPRING MOUNTAIN TREATMENT
CENTER,
Defendant(s).

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Pending before the Court is a stipulation to extend the deadline to respond to the complaint

17 until 14 days after the early neutral evaluation. Docket No. 9.
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The normal course is for an early neutral evaluation to occur after the filing of a response

19 to the complaint, cf. Local Rule 16-6(d), at which point the parties are formally before the Court.
20 It is not uncommon for early neutral evaluations to proceed notwithstanding the pendency of a
21 motion to dismiss1 and, indeed, the briefing of such motion can help the parties understand the
22 strengths and weaknesses of the case. Moreover, to the extent a defendant wishes to avoid the cost
23 of challenging the sufficiency of the complaint until after an early neutral evaluation, it can file an
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The stipulation references a “responsive pleading” to which an opposition and reply brief
will be filed. See Docket No. 9 at 1-2. A motion to dismiss is not a “responsive pleading.” See,
26 e.g., Morrison v. Mahoney, 399 F.3d 1042, 1046-47 (9th Cir. 2005); Doe v. United States, 58 F.3d
494, 497 (9th Cir. 1995). Nonetheless, given the reference to subsequent briefing, the Court
27 assumes that Defendant anticipates filing a motion to dismiss. To the extent the anticipated filing
is otherwise, nothing herein prevents the parties from filing a renewed stipulation that so clarifies
28 and also explains why a different outcome is appropriate based on that clarification.
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1 answer initially and then file a motion for judgment on the pleadings after the early neutral
2 evaluation. See Fed. R. Civ. P. 12(c); see also In re Dynamic Random Access Memory (DRAM)
3 Antitrust Litig., 516 F. Supp. 2d 1072, 1083 (N.D. Cal. 2007) (“The standard applied by the court
4 in treating a motion for judgment on the pleadings is the same as that applied by the court in
5 considering motions to dismiss under FRCP 12(b)(6)”).
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In short, the stipulation has not provided sufficient justification to depart from the normal

7 course.2 Accordingly, the stipulation is DENIED.
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IT IS SO ORDERED.

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Dated: August 3, 2018
______________________________
Nancy J. Koppe
United States Magistrate Judge

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To be clear, nothing herein prevents the parties from settling this case on their own prior
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