MARCHI v. M&T BANK, et als

Filing 6

MEMORANDUM/ORDER that plaintiff may, on or before March 21, 2016, file a response to the defendants motion to dismiss. Signed by Judge Kevin McNulty on 2/29/16. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANNE MARIE MARCHI,
Plaintiff,

Civ. No. 15-cv-5725 (KM)

MEMORANDUM and ORDER
HUDSON CITY SAVINGS BANK, A
SUBSIDIARY OF HUDSON CITY
BANCORP., INC.,
Defendant
Defendant has filed a motion to dismiss the complaint under Fed. R. Civ.
P. 12(b)(6) for failure to state a claim (FDCF no. 4). Plaintiff has filed a response
(ECF no. 5), but the response states only that Defendant’s motion should be
struck as untimely pursuant to Fed. R. Civ. P. 12(f). Plaintiff requests 20 days
to respond to any portion of the motion that is not struck.
The motion to dismiss was not filed late. The time to answer or otherwise
move in response to a complaint is within 21 days after service. See Fed. R.
Civ. P. 12(a)(1), 12(b). The complaint was filed July 23, 2015. Plaintiff mailed
the complaint to defendant on August 3, 2005 (plaintiff’s return of service, ECF
no. 3). I set aside any issues of adequacy of service, because defendant does
not raise it. See Fed. R. Civ. P. 12(b). In cases where mailing is sufficient, 3
days are added to the party’s time to respond. Fed. R. Civ. P. 26(c). Defendant’s
answer or motion in response to the complaint was therefore due by August 27,
2015. This motion to dismiss was filed on August 25, 2015.
This pro se plaintiff is presumably unfamiliar with the procedures of the
Court. I therefore must express the following warning to both sides: It is for
the Court, not an opposing party, to decide that a motion is late and need not
be answered. A party who chooses not to respond to a motion, believing it is

late, ordinarily takes the risk that the court will disagree, or that the court will
excuse the lateness. This time, I will permit the plaintiff to file a response
within 20 days. Next time, I may not.
IT IS THEREFORE, this 29th day of February, 2016,
ORDERED that plaintiff may, on or before March 21, 2016, file a
response to the defendant’s motion to dismiss.

KEVIN MCNULTY
United States District J dge