Holley et al v. CVS Caremark Corporation et al

Filing 41

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 8/11/2016. (mlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
SADIE MAE HOLLEY, by and through her
Mother and Next Friend, Sara B. Holley,
et al.,
Plaintiffs,
v.
CVS CAREMARK CORPORATION, et al.,
Defendants.

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Case No. 4:16-cv-00017
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Plaintiff Sadie Mae Holley (Sadie), a minor suing by and through her mother and next
friend, plaintiff Sara B. Holley (Ms. Holley), moves for default judgment against defendants
CVS Caremark Corporation, CVS Pharmacy, Inc., Virginia CVS Pharmacy, LLC, and CVS
Pharmacy, Store #3793, Hook-SupeRx, LLC (collectively, CVS). (Dkt. No. 28.) Sadie also
moves, in the alternative, for an extension of time to disclose expert witnesses. In response, CVS
moves for leave to file a later answer. (Dkt. No. 34.) The court does not believe that an oral
hearing would be helpful in deciding these motions; thus, it will rule without one. W.D. Va. Civ.
R. 11(b).
On December 30, 2015, Sadie and Ms. Holley filed this action in a Virginia state court.
Sadie alleges a claim for negligence, and Ms. Holley alleges a claim for intentional infliction of
emotional distress. On April 4, 2016, CVS removed the action to this court and, two days later,
moved for leave to file a late responsive pleading. The court granted the motion, giving CVS
until April 8 to file a responsive pleading. On April 7, CVS moved to dismiss Mrs. Holley’s

claim under Federal Rule of Civil Procedure 12(b)(6). It did not, however, file a responsive
pleading to Sadie’s claim. The court denied CVS’s motion to dismiss on August 3.
Since CVS did not file a responsive pleading to her claim on or before April 8, Sadie
contends that it is in default. To support her argument, Sadie relies on a nearly forty-year-old
case from the Eastern District of Michigan—Gerlach v. Michigan Bell Telephone Company, 448
F. Supp. 1168 (E.D. Mich. 1978). There, the court held that moving to dismiss fewer than all
the claims of a complaint under Rule 12(b)(6) does not toll the time for responding to the
remaining claims. Id. at 1174. But the Gerlach court is on a lonely island: Virtually every other
court that has considered the issue has rejected the Gerlach court’s rule, holding instead that a
Rule 12(b)(6) motion to dismiss does suspend the time to respond to any unchallenged claims.
See, e.g., Ideal Instruments, Inc. v. Rivard Instruments, Inc., 434 F. Supp. 2d 598, 638 (N.D.
Iowa 2006) (collecting cases). Indeed, it appears that just one court over the past 30-plus years
has chosen to follow the Gerlach court, and that court was not convinced that the Gerlach
court’s rule applies in all cases. Coca-Cola Fin. Corp. v. Pure Tech Plastics LLC, No. 1:12-cv00949, 2012 U.S. Dist. LEXIS 191395, at *2 (N.D. Ga. July 9, 2012) (“Although there may be
some instances when a partial motion to dismiss extends the time to answer all counts, this case
does not present such an instance.”)
While the Fourth Circuit has not yet weighed in on this issue, several other district courts
within the Fourth Circuit have, and they have all reached the opposite conclusion as the Gerlach
court. Take, for instance, the Eastern District of Virginia’s decision in Godlewski v. Affiliated
Computer Services, Inc., 210 F.R.D. 571 (E.D. Va. 2002). There, the court held that “Rule
12(b)(6) motions . . . expand time for answering the entire pleading until 10 [now 14] days after
receiving notice of the Court’s resolution of the Rule 12(b)(6) motion.” Id. at 573; accord

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Justice v. Dimon, No. 3:10-cv-00413, 2011 U.S. Dist. LEXIS 60127, at *6 (W.D.N.C. June 6,
2011). In reaching this conclusion, the court rejected the Gerlach court’s rule and instead
adopted the majority view, explaining:
This Court chooses to follow the majority approach. As other courts
have noted, if the courts require a defendant to answer in piecemeal fashion, a
procedural thicket would emerge. Thorny questions would arise as to how the
case should proceed pending resolution of the motion. In the interests of
efficiency for all parties, including the courts, it is best to stall the proceedings on
all counts until after the court rules on the Rule 12(b)(6) motion. In addition, any
potential abuses or dilatory tactics which the minority approach seeks to prevent
can also be guarded against under the majority approach through the use of Rule
11 sanctions to deter abuse.
Godlewski, 210 F.R.D. at 572–73 (internal quotation marks and citation omitted).
Like the Godlewski court, this court is persuaded that the majority view is correct and
thus adopts it here. Consequently, when CVS filed its motion to dismiss Ms. Holley’s claim
under Rule 12(b)(6), its time to respond to Sadie’s claim was suspended until the court ruled on
the motion. After such a ruling, CVS would then have 14 days to respond to Sadie’s claim. Fed.
R. Civ. P. 12(a)(4).
Because 14 days have not yet passed since the court ruled on CVS’s motion to dismiss
Ms. Holley’s claim, CVS is not in default on Sadie’s claim. Accordingly, the court will deny
Sadie’s motion for default judgment and deny CVS’s motion for leave to file a late answer as
moot.
With respect to her alternative motion for an extension of time to disclose expert
witnesses, Sadie does not adequately explain why such relief is necessary at this time. The court
will thus deny the motion without prejudice. If she continues to believe that the expertdisclosure deadline in the scheduling order needs to be extended after receiving this decision,
then she may refile the motion with an adequate explanation, and it will be referred to the

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magistrate judge for resolution. Sadie may also contact the magistrate judge directly about any
other discovery issues.
An appropriate order will issue.
Entered: August 11, 2016.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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