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Partial Motions to Dismiss and the Issue of Timeliness

Partial Motion to Dismiss to steer clear of storm clouds

Introduction

Per the Federal Rules of Civil Procedure, an answer or motion to strike or dismiss generally has to be filed within 21 days after service of the complaint.  The time for answering the complaint is automatically extended if the defendant serves upon the plaintiff a timely motion permitted under Rule 12, including a Rule 12(b) motion to dismiss the claim or claims asserted in the complaint.

The defendant can also elect to file a partial motion to dismiss that is directed to only some of the claims asserted in the complaint.  As Rule 12 does not specifically authorize such partial motions, there is some ambiguity as to whether a defendant’s submission of a partial motion to dismiss extends the time within which it must respond to any claims that are not addressed in its motion.  The issue is of prime importance as the consequences can be default judgment entered against a defendant who fails to respond to some of the plaintiff’s claims or waiver of counterclaims against the plaintiff.

The Standards – Majority and Minority views

The vast majority of courts addressing this issue has held that when a defendant timely files a motion to dismiss under Federal Rules of Civil Procedure, Rule 12(b), Fed.R.Civ.P., Rule 12(a)(4)(A) extends the time to file an answer as to all claims, including those not addressed by the motion to dismiss.  A pending motion to dismiss, although it may only address some of the claims alleged, tolls the time to respond to all claims under Rule 12(a)(4).

 Gerlach v. Michigan Bell Telephone Co. is the seminal case expressing the minority view that Rule 12(a) does notsuspend a defendant’s obligation to respond to the plaintiff’s claims that are not the subject of the defendant’s partial motion to dismiss.  The defendant in Gerlach  moved to dismiss four of the six counts asserted in the plaintiffs’ employment discrimination suit arguing it was not obligated to answer the remaining counts until the court issued a ruling on its motion.  Eventhough the federal court in Michigan agreed that the defendant should be “entitled to narrow the scope of the litigation,” it stated that such an effort did not suspend its obligation to respond to the counts remaining in the complaint. The court held that “[s]eparate counts are, by definition, independent bases for a lawsuit and the parties are responsible to proceed with litigation on those counts which are not challenged by a motion under [Rule] 12(b).” However, the Gerlachcourt exercised its discretion not to enter a default judgment because it would have been an unnecessarily harsh remedy given the fact that plaintiff had not been severely prejudiced by the delay in receiving a responsive pleading.

Despite the fact that the majority of US courts have declined to follow the Gerlach court’s reasoning, its decision, and recent authority clearly opposing such a holding, it still remains that a few courts continue to recognize and uphold the minority view.

The primary advantages of the majority view are reducing inefficient, duplicative pleadings and narrowing the scope of discovery to save parties the expense of exploring the factual predicate for claims that have no legal merit.  The minority view also has its advantages – it discourages defendants from using partial motions to dismiss as an improper litigation tactic to delay the adjudication of a case.

Conclusion

Although the weight of authority holds that the filing of a partial motion to dismiss suspends the time for answering the entire complaint, and not merely the claims that are the subject of the motion, case law addressing this issue is not conclusive.  Therefore unless and until there is binding authority conclusively establishing whether or not Rule 12(a)(4)(A) automatically extends the time to answer the complaint’s remaining counts, it is advisable to file a motion for an extension of time to respond to the remaining counts when filing a partial motion to dismiss.  This approach protects the defendant’s interests in the litigation by minimizing the risk of a default judgment being entered on the counts to which the defendant has not responded or inadvertent waiving of compulsory counter claims.

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