United States District Court, S.D. Alabama, Southern Division
ORDER
KRISTI
K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on the Defendants'
counterclaim and motion to dismiss, for sua sponte
review and to clarify the record. (Docs. 45, 46).
Specifically,
on March 1, 2019, Plaintiff filed a Third Amended Complaint
and summons issued to all defendants (including to new
defendant) to respond to this complaint. (Doc. 37,
39). On March 15, 2019, counsel filed an appearance for all
of the defendants (including the newly named defendant).
(Doc. 41). Additional counsel for defendants appeared on
March 21, 2019. (Doc. 44). On March 22, 2016, Defendants
filed a Counterclaim against Plaintiff. (Doc. 45). A few
minutes later, Defendants filed a Rule 12(b)(6) motion to
dismiss -- for failure to state a claim upon which relief can
be granted. (Doc. 46).
The
timing is relevant because the filing of Plaintiff's
Third Amended Complaint set new response deadlines for the
defendants -- to respond to that complaint. This is
because a properly filed amended complaint supersedes prior
complaints in the case. Pintando v. Miami-Dade Hous.
Agency, 501 F.3d 1241, 1243 (11th Cir. 2007)
(quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg v.
M/V OLYMPIA VOYAGER, 463 F.3d 1210, 1215
(11th Cir.2006) (same); Smith v. West
Facilities Corp., 2005 WL 1785224, *1-2 (S.D. Ala. Jul.
26, 2005) (same). As a result, Defendants are
"allowed" to file a responsive pleading to
Plaintiff's Third Amended Complaint and are to do so
within 21 days after being served: "must serve an
answer" within that timeframe or file a Rule 12(b)
motion. Fed.R.Civ.P. Rule 12(a)(1)(A)(i) and 12(b). Notably,
Rule 12(b) provides that a Rule 12(b) motion "must be
made before pleading if a responsive pleading is
allowed." Fed.R.Civ.P. Rule 12(b) (emphasis added).
Moreover, Rule 13(a)(1) provides that a counterclaim must be
included in a pleading (e.g., an Answer). Fed.R.Civ.P. Rule
13(a)(1). Rule 7(a) defines pleadings as: 1) a complaint; 2)
an answer to a complaint; 3) an answer to a counterclaim
designated as a counterclaim; 4) an answer to a crossclaim;
5) a third-party complaint; 6) an answer to a third-party
complaint; and (7) if the court orders one, a reply to an
answer. Fed.R.Civ.P. Rule 7(a). In sum, a counterclaim is not
a "pleading," and a counterclaim cannot be filed
(typically) as a stand-alone document. Thus, the filing of
the counterclaim does not "count" against
Defendants with regard to the Rule 12(b) requirement that
such a motion be made before a responsive pleading
is filed.
As
explained in Federal Procedure, Lawyers Edition, 27A
Fed. Proc., L.Ed. § 62:201 (March 2019 Update)
(footnotes omitted, emphasis added)):
Counterclaims can only be asserted in a pleading. [ ] A
counterclaim must be pleaded as fully and distinctly and with
the same substantial requisites as an original cause of
action.[ ] Thus, a counterclaim is subject to the same
pleading requirements as a complaint.[ ] …[and] may
have to satisfy the particularity requirements of
Fed.R.Civ.P. 9(b). [ ]…
If a party is asserting a counterclaim, it should be
designated and pleaded as a counterclaim. [ ]
…where a defendant has filed no answer to the
complaint but has filed a document purporting to contain
counterclaims, such counterclaims must be dismissed or
stricken, since a counterclaim is not a pleading but must be
stated in a pleading and therefore can be asserted only in
the defendant's answer…..
…. The filing of a motion to dismiss does not allow a
defendant to file counterclaims as a stand-alone
filing….
See e.g., National Ass'n of Govt. Employees,
Inc. v. National Emergency Med. Servs. Ass'n, Inc.,
969 F.Supp.2d 59, 67 (D. Mass. 2013) ("counterclaims can
only be asserted in a 'pleading'"….[t]he
filing of a motion to dismiss does not allow a defendant to
file counterclaims as a stand-alone filing[]"). See
also Andy Thanh v. Oanh Tran, 2018 WL 4944992, *1 (C.D.
Cal. Jan. 25, 2018) (internal citations omitted)
("Under…Rules…7 and 13, Defendants may not
file a counterclaim without filing an answer. Rule 13 only
contemplates the filing of a…counterclaim in or
concurrent with “a pleading.”….This Court
does not have any power to modify the list in the interests
of justice or otherwise….A counterclaim filed
independent of any such pleading is not
permitted….Other courts have reached the same
conclusion. … The Court therefore denies
Defendants' motion for leave to add a
counterclaim[]").[1]
In this
case, Defendants' motion to dismiss was filed after
Defendants' counterclaim was filed, but before any
"pleading" by the Defendants was filed in response
to Plaintiff's Third Amended Complaint. Indeed, the
case's current procedural posture indicates that a
"responsive pleading" would have been allowed
instead of a counterclaim -- Defendants' Answer to
Plaintiff's Third Amended Complaint, which could have
included a counterclaim therein. However,
the Defendants appear to have chosen an alternative route --
a Rule 12(b) motion. And while Defendants' Answer to the
Third Amended Complaint was due 21 days after being served,
the filing of the Rule 12(b) motion suspends that deadline
and re-sets it to the following: "if the court denies
the motion or postpones its disposition until trial, the
responsive pleading must be served within 14 days after
notice of the court's action…." Fed.R.Civ.P.
Rule 12(a)(4). With the counterclaim filed in the mix,
procedural confusion in the record has resulted.
While
this may be viewed as much ado regarding form over substance,
the undersigned finds that clarity is the path for this
particular case. To accomplish just that, the undersigned
turns to what was technically filed first -- the
counterclaim. It is ORDERED that the
counterclaim is STRICKEN for lack of
compliance with the Federal Rules (e.g., not included in an
answer). This leaves Defendants' Rule 12(b)(6) motion to
dismiss. Defendants failed to file a brief in support of
their motion. The motion does not comply with S.D.AL CIV LR
7(b) which provides"…any motion filed pursuant to
Fed.R.Civ.P. 12(b)…must be supported by a
brief….filed contemporaneously with the motion.
Failure to file a brief in support….is sufficient
cause to deny the motion….''' Upon
consideration, the motion to dismiss is also
STRICKEN for lack of compliance the Local
Rules.
DONE
and ORDERED.
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