Slavens v. Millard County et al

Filing 185

MEMORANDUM DECISION denying 168 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge Evelyn J. Furse on 09/22/2013. (asp)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
MELANIE SLAVENS, as Special
Administrator of the Estate of JAMES
SLAVENS,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANTS’
MOTION TO DIMSISS
(ECF No. 168)

Plaintiff,

Case No. 2:11–CV–00568

v.

Magistrate Judge Evelyn J. Furse

MILLARD COUNTY, et al,
Defendants.

The Estate brings this action against Millard County alleging remaining causes of action
under 42 U.S.C. section 1983 for violations of the Due Process Clause and breach of contract,
including breach of the covenant of good faith and fair dealing. On September 20, 2012, the
County moved this Court under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Estate’s
claims for deprivation of constitutional rights because the Complaint fails to state a claim upon
which the Court can grant relief. (ECF No. 168.)
The Court1 read the Motion and Memorandum submitted by the County. Federal Rule of
Civil Procedure 12(b)(6) requires “[a] motion asserting any of these defenses [including failure
to state a claim]must be made before pleading if a responsive pleading is allowed.” The Estate
filed its Amended Complaint on August 19, 2013. The County filed a Motion for Judgment on
the Pleadings on August 29, 2013, and filed an answer—a responsive pleading—on September 5,
2013. Therefore, the Court denies the County’s Motion as untimely.

The parties consented to the exercise of jurisdiction by the undersigned Magistrate Judge under
28 U.S.C. section 636(c). (ECF No. 8.)

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DATED this 22nd day of September, 2013.
BY THE COURT:
________________________________
Evelyn J. Furse
United States Magistrate Judge

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