Plaintiff Theresa Hammer sued defendant The Post 4, LLC in the United States District Court for the Eastern District of Missouri. Defendant moved to dismiss some of plaintiff’s claims under Rule 12(b)(6).
Procedural History:
After plaintiff filed her complaint, the defendant requested additional time “to answer or otherwise plead” to the complaint. The court granted the defendant’s motion, giving the defendant until March 21, 2024, to file “its responsive pleading.” On March 21, the defendant filed a partial motion to dismiss along with an answer and affirmative defenses to Counts III and IV of the complaint.
Court’s Reasoning and Analysis:
The court noted that a motion to dismiss is not a pleading under the Federal Rules of Civil Procedure (Fed. R. Civ. P. 7(a) and 7(b)). Thus, the defendant did not have the court’s leave to file the partial motion to dismiss since it only asked for and received additional time to plead.
The court acknowledged that the law is unsettled on whether a partial motion to dismiss extends the time to answer the remaining portions of the complaint. However, the court stated that the better view, supported by the weight of limited authority, is that such a motion suspends the time to respond to the entire complaint, not just the claims subject to the motion. The typical practice is to file a motion to dismiss and then file an answer after the court rules on the motion, as per Fed. R. Civ. P. 12(a)(4). The defendant filed its answer to Counts III and IV before filing its partial motion to dismiss, which is contrary to Fed. R. Civ. P. 12(b), which states that a motion asserting Rule 12(b) defenses must be made before pleading if a responsive pleading is allowed. The court ultimately denied the defendant’s Partial Motion to Dismiss and ordered the defendant to file its responsive pleading by a specified date.
Schrag on Law 