Marie et al v. American Red Cross et al
Filing
126
OPINION AND ORDER granting 113 motion. Defendants American Red Cross and Mary McCord may have until June 10, 2013 to respond to the Amended Complaint. Signed by Magistrate Judge Norah McCann King on 6/03/13. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SISTER MICHAEL MARIE, et al.,
Plaintiffs,
Vs.
Case No. 2:11-cv-474
Judge Watson
Magistrate Judge King
AMERICAN RED CROSS, et al.,
Defendants.
OPINION AND ORDER
This action was filed on June 1, 2011, Complaint, Doc. No. 2, and
defendants American Red Cross and Mary McCord filed a motion to
dismiss on August 22, 2011, Doc. No. 12.
That motion was granted on
March 30, 2012, Opinion and Order, Doc. No. 35, and plaintiffs
thereafter filed an Amended Complaint, Doc. No. 37.
Defendants
American Red Cross and Mary McCord filed a partial motion to dismiss
the Amended Complaint on June 4, 2012. Doc. No. 41.
The date by which
all discovery was to have been completed was December 14, 2013.
Order, Doc. No. 69;
Opinion and Order, Doc. No. 110.
Motions for
summary judgment were filed on January 14, 2013, Doc. Nos. 85, 87.
The Court granted the moving defendants’ partial motion to dismiss on
March 19, 2013, dismissing plaintiff’s § 1983 claims in Counts One
through Three of the Amended Complaint as against both defendants
American Red Cross and Mary McCord and Counts Four through Six as
against defendant McCord.
Opinion and Order, Doc. No. 107.
motions for summary judgment remain pending.
The
This matter is now before the Court on these defendants’ Motion
for Leave to Answer Amended Complaint After Resolution of the Motion
for Summary Judgment (“Defendants’ Motion”), Doc. No. 113.
These
defendants seek leave to defer the filing of an answer to the Amended
Complaint until 21 days after the resolution of their pending motion
for summary judgment.
These defendants argue that Fed. R. Civ. P. 12
“is silent on any time period for filing an answer after” a partial
motion to dismiss is granted and that “[n]o party will be prejudiced
by the grant of this motion.”
Defendants’ Motion, p. 2.
Plaintiffs have filed a response to Defendants’ Motion
(“Plaintiff’s Response”), Doc. No. 119.
Plaintiffs argue that,
regardless of the timing, they will be prejudiced if these defendants
are permitted to file an answer because plaintiffs have not had the
opportunity to conduct discovery regarding any affirmative defenses
that may be asserted in the answer.
Id. at p. 3.
In the alternative,
plaintiffs argue that these defendants should not be permitted to
assert affirmative defenses in their answer and that discovery should
be reopened.
Id.
These defendants have filed a reply, Doc. No. 23, restating their
argument that Fed. R. Civ. P. 12 does not provide a time for serving
an answer under the circumstances of this case, i.e., after the grant
of a partial motion to dismiss.
Defendants’ argument to the contrary notwithstanding, Rule 12 of
the Federal Rules of Civil Procedure addresses this issue.
In
general, a defendant must serve an answer “within 21 days after being
served with the summons and complaint.”
2
Fed. R. Civ. P.
12(a)(1)(A)(i).
If an amended complaint is filed, an answer “must be
made within the time remaining to respond to the original pleading or
within 14 days after service of the amended pleading, whichever is
later.”
Fed. R. Civ. P. 15(a)(3).
However, “[u]nless the court sets
a different time,” the service of a motion to dismiss under Rule 12(b)
alters the time to respond: “[I]f the court denies the motion or
postpones its disposition until trial, the responsive pleading must be
served within 14 days after notice of the court’s action.”
Civ. P. 12(a)(4)(A).
Fed. R.
Rule 12(a)(4)(A) also applies in circumstances
where, as here, a defendant files a motion to dismiss that is only
partially dispositive.
See Compton v. City of Harrodsburg, 287 F.R.D.
401 (E.D. Ky. 2012); Sun v. Rickenbacker Collections, 5:10-cv-1055,
2012 WL 2838782, at *2 (N.D. Cal. July 10, 2012); Talbot v. Sentinel
Ins. Co., Ltd., 2:11-cv-1766, 2012 WL 1068763, at *4 (D. Nev. Mar. 29,
2012) (collecting cases holding that a partial motion to dismiss tolls
the time to respond under Rule 12(a)(4)); Kent v. Geren, 07-cv-2202,
2008 WL 150060 (D. Colo. Jan. 11, 2008); 5B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1346 (3d ed.).
Considering the current posture of the case, defendants American
Red Cross and McCord were required to file a response to the Amended
Complaint within fourteen days of the Court’s March 19, 2013
resolution of their partial motion to dismiss.
Doc. No. 107.
See Opinion and Order,
These defendants have not filed a responsive pleading
within the time permitted by Rule 12.
Plaintiffs argue that they will
be prejudiced if these defendants are now permitted to file an answer
because plaintiffs will have been deprived of the opportunity to
3
conduct discovery regarding any affirmative defenses asserted in that
answer.
Plaintiffs’ Response, p. 3.
Defendants American Red Cross and McCord have offered no
persuasive reason why the filing of a response to the Amended
Complaint should be further delayed.
However, the Court also
concludes that plaintiffs will not be prejudiced by permitting these
defendants to file a responsive pleading at this juncture.
The
discovery completion date had already passed and the motions for
summary judgment had been fully briefed at the time the partial motion
to dismiss was granted.
Had these defendants filed a response to the
Amended Complaint in a timely fashion, plaintiffs would be in no
better position than they are today.
Accordingly, Defendants’ Motion, Doc. No. 113, is GRANTED in
part.
Defendants American Red Cross and Mary McCord may have until
June 10, 2013 to respond to the Amended Complaint.
June 3, 2013
s/Norah McCann King
.
Norah McCann King
United States Magistrate Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?