Fremantlemedia North America, Inc. v. Benelux Corporation et al

Filing 6

Response in Opposition to Motion, filed by Fremantlemedia North America, Inc., re MOTION to Dismiss filed by Defendant Benelux Corporation, Defendant Athanases Stamatopoulos (Attachments: # 1 Exhibit A to Plaintiff's Response, # 2 Exhibit B to Plaintiff's Response, # 3 Exhibit C to Plaintiff's Response, # 4 Exhibit D to Plaintiff's Response, # 5 Exhibit E to Plaintiff's Response, # 6 Proposed Order)(Matheny, Anthony)

Slip Copy Slip Copy, 2006 WL 4659837 (W.D.Tex.) (Cite as: 2006 WL 4659837 (W.D.Tex.))

Page 1

Only the Westlaw citation is currently available. United States District Court, W.D. Texas, El Paso Division. Olga YBARRA, Plaintiff, v. WAL-MART STORES, INC., Defendant. No. EP-06-CV-264-PRM. Oct. 10, 2006. Robert Leon Lovett, Lovett Law Firm, El Paso, TX, for Plaintiff. Arthur Robert Piacenti, Laura M. Enriquez, Hicks & Lucky, P.C., El Paso, TX, for Defendant. ORDER DENYING DEFENDANT'S MOTION FOR MORE DEFINITE STATEMENT PHILIP R. MARTINEZ, United States District Judge. *1 On this day, the Court considered Defendant Wal-Mart Store Texas, LP's ("Defendant") "Motion for More Definite Statement" (" Motion"), filed on September 21, 2006 in the above-captioned cause. Therein, Defendant asks the Court to require Plaintiff Olga Ybarra ("Plaintiff") to amend her complaint to include a more definite statement of certain claims pursuant to Federal Rule of Civil Procedure 12(e) ("Rule 12(e)"). Specifically, Defendant argues that Plaintiff's allegations regarding damages are inadequately stated. Def.'s Mot. for More Definite Statement ¶¶ 3-7. However, on the same day Defendant filed the instant motion, Defendant also filed a "Motion for Leave to File Amended Pleading."The Court granted that motion on September 25, 2006, and Defendant's amended answer was filed that day. Accordingly, Defendant now asks the Court to require Plaintiff to amend her complaint to include a more definite statement of certain claims, despite Defendant having already filed a responsive pleading to those claims. After due consideration, the Court is of the opinion that Defendant's Motion should be denied. Rule 12(e) allows the Court to require a party to provide a more definite statement "if a pleading to which a responsive pleading is permitted is so vague or am-

biguous that a party cannot reasonably be required to frame a responsive pleading."FED.R.CIV.P. 12(e).Rule 12(e) clearly requires that the motion be made before the party has filed its response. Various courts have confirmed this interpretation. See, e.g., Marx v. Gumbinner, 855 F.2d 783, 792 (11th Cir.1988); Daugaard v. Baldwin, No. CIV.A.98-612-ST, 1999 WL 778585, at *5 (D.Or. Sept. 17, 1999). The Court recognizes that since Defendant's instant Motion was filed on the same day as its "Motion for Leave to Amend Pleading," the instant Motion may have been filed "before" the responsive pleading, and thus not barred by a strict reading of Rule 12(e). The Court nonetheless determines that Defendant's Motion should be denied. Rule 12(e) does not allow a party to request a more definite statement simply for "a lack of detail in the complaint," but rather "when a party is unable to determine the issues he must meet." Cox v. Maine Maritime Academy, 122 F.R.D. 115, 116 (D.Me.1988). Having already filed a responsive pleading, Defendant cannot show, as required by Rule 12(e), that the original pleading was "so vague or ambiguous" such that it "cannot reasonably be required" to respond. FED.R.CIV.P. 12(e). Accordingly, IT IS ORDERED that Defendant's "Motion for More Definite Statement" (Docket No. 7) is DENIED. W.D.Tex.,2006. Ybarra v. Wal-Mart Stores, Inc. Slip Copy, 2006 WL 4659837 (W.D.Tex.) END OF DOCUMENT

EXHIBIT E
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