Fortkamp v. Timothy Roberson, ABN AMRO MTG. GROUP d.b.a. CT Corporation System et al

Filing 19

REPORT AND RECOMMENDATIONS - Plaintiff's Motion for Judgment on the Pleadings is untimely and should be denied without prejudice to its renewal after the pleadings are closed. Plaintiff is also notified that her Motion does not constitute a suff icient response to the Motion To Dismiss. He response was due to be filed not later than March 2, 2015, and is now untimely. Objections to R&R due by 3/20/2015. Signed by Magistrate Judge Michael R Merz on 3/3/2015. (kpf1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
YVONNE FORTKAMP,
Plaintiff,

-

vs

:

Case No. 3:14-cv-458
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

-

ABN AMRO MORTGAGE GROUP, et al.,
Defendants.

:

REPORT AND RECOMMENDATIONS

This case is before the Court on Plaintiff’s Motion for Ruling on the Pleadings (Doc. No.
18). Plaintiff notes that instead of filing an answer to her Complaint, Defendants filed a motion
to dismiss the Complaint. She complains that the motion “is in avoidance of an answer” and
Fed. R. Civ. P. 12 requires an answer in twenty-one days after service (Motion, Doc. No. 18,
PageID 121).
The motion to which Plaintiff refers is Defendants’ Motion to Dismiss for Failure to State
a Claim Upon Which Relief Can Be Granted (Doc. No. 12). That motion was made under Fed.
R. Civ. P. 12(b)(6) and raised the affirmative defense of res judicata as well as generally
arguing that Plaintiff has not pled sufficient facts to sustain a claim for relief.
Plaintiff is mistaken in her interpretation of Fed. R. Civ. P. 12. The Rule does require an
answer, but also permits a defendant to raise a number of defenses by motion before it files an

1

answer. Fed. R. Civ. P. 12(a)(4) expressly says that a defendant’s time to file an answer is
extended until fourteen days after the court decides a motion under Rule 12(b). Furthermore,
Fed. R. Civ. P. 12(c) permits a motion for judgment on the pleadings only after the pleadings are
“closed,” meaning after the answer is filed.
Plaintiff’s Motion for Judgment on the Pleadings is untimely and should be denied
without prejudice to its renewal after the pleadings are closed. Plaintiff is also notified that her
Motion does not constitute a sufficient response to the Motion To Dismiss. He response was due
to be filed not later than March 2, 2015, and is now untimely.
March 3, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

2