United States District Court, M.D. Alabama, Northern Division
VANESSA E. DIXON, Plaintiff,
NATIONAL SECURITY OF ALABAMA, INC., d/b/a DTA SECURITY SERVICES, Defendant.
REPORT AND RECOMMENDATION
A. BAKER, UNITED STATES MAGISTRATE JUDGE
Vanessa Dixon, sues her former employer, Defendant DTA
Security Services, for racial discrimination. This matter is
before the court on the Defendant's Motion to Dismiss or
in the Alternative for More Definite Statement (Doc. 17) to
which the Plaintiff filed a memorandum in opposition (Doc.
Because Defendant has now answered Plaintiff's amended
complaint, it is the recommendation of the
undersigned Magistrate Judge that the Motion to Dismiss or in
the Alternative for More Definite Statement (Doc. 17) be
denied as moot.
filed an EEOC Complaint against Defendant in January 2018.
(Doc. 1). On February 28, 2018, she filed a two-count amended
complaint against Defendant for claims of race discrimination
in violation of Title VII and Section 1981. (Doc. 8). Both
the initial and amended complaint were filed pro se.
On April 6, 2018, Defendant filed a motion to dismiss seeking
to dismiss, in part, certain claims and damages sought by the
amended complaint. (Doc. 17). Through counsel, Plaintiff
filed a response in opposition arguing her amended complaint
states a claim for relief and that her Section 1981 claim is
not time-barred. (Doc. 21). Defendant filed a reply conceding
that in the event Plaintiff's Section 1981 claim arises
under the Civil Rights Act of 1991, then the claim would have
a four-year statute of limitations and would not be
time-barred. (Doc. 25).
to the court ruling on Defendant's motion to dismiss,
Defendant answered Plaintiffs amended complaint. (Doc. 30).
When a motion to dismiss is pending, a defendant is not
required to file an answer until the court disposes of the
motion. See Lockwood v. Beasley, 211 Fed.Appx. 873,
876 (11th Cir. 2006). Courts in this circuit have held that a
motion to dismiss is rendered moot when a defendant files an
answer prior to the court ruling on the motion. See
Veltre v. Sliders Seaside Grill, Inc., No.
3:15-CV-1102-J-32JBT, 2016 WL 524658, at *1 (M.D. Fla. Feb.
10, 2016) (“Where, as here, an Answer was filed prior
to the resolution of the motion to dismiss, the motion
becomes moot.”); Brisk v. City of Miami Beach,
Fla., 709 F.Supp. 1146, 1147 (S.D. Fla. 1989)
(“Once the defendants filed their answer, it became
procedurally impossible for the Court to rule on the motion
to dismiss.”); Thornton v. City of St. Petersburg,
Fla., No. 8:11-CV-2765-T-30TGW, 2012 WL 2087434, at *2
(M.D. Fla. June 8, 2012) (“If a Defendant files an
Answer contemporaneously with a motion to dismiss, that
motion is rendered moot.”); Keh v. Americus-Sumter
Cty. Hosp. Auth., No. 1:03-CV-68-2(WLS), 2006 WL 871109,
at *2 (M.D. Ga. Mar. 31, 2006), aff'd sub nom. Keh v.
Americus & Sumter Cty. Hosp., 377 Fed.Appx. 861
(11th Cir. 2010) (“it is technically impossible to
challenge the sufficiency of an allegation in a complaint, as
one does in a motion to dismiss, while simultaneously
admitting or denying the same allegation, as one does in an
motion seeks partial dismissal of the amended complaint, or
in the alternative, a more definite statement. A motion for
more definite statement under Fed.R.Civ.P. 12(e) may be
granted only when a plaintiff's complaint is “so
vague or ambiguous that the party cannot reasonably prepare a
response.” Fed.R.Civ.P. 12(e). Clearly, here, the
amended complaint was not so vague because Defendant was able
to answer it.
reasons set forth above, it is the
recommendation of the Magistrate Judge that
Defendant's Motion to Dismiss or in the Alternative for
More Definite Statement (Doc. 17) be denied as
has fourteen days from this date to file written objections
to the Report and Recommendation's factual findings and
legal conclusions. Accordingly, it is hereby
ORDERED that any objections to the Report
and Recommendation shall be filed on or before
September 5, 2018. A party's failure to
file written objections waives that party's right to
challenge on appeal any unobjected-to factual finding or
legal conclusion the district judge adopts from the Report
and Recommendation. See 11th Cir. R. 3-1; see also
28 U.S.C. § 636(b)(1).
 The court set the motion for hearing
on August 8, 2018. (Doc. 26). Counsel for Defendant failed to
appear for the hearing, and the court issued an order to show
cause to which defense counsel ...