MEMORANDUM OPINION AND ORDER
EMILY C. MARKS, Chief District Judge.
On April 4, 2019, Charles L. Burton, Jr. ("Burton"), a death row inmate, filed a complaint challenging the Alabama Department of Corrections' policy of prohibiting the presence of his religious advisor during his anticipated execution. Specifically, he asserts that the disallowance of an imam in the execution chamber is violative of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq; the Alabama Religious Freedom Amendment ("ARFA"), Ala. Const. Art I, § 3.01; and the First Amendment to the United States Constitution.1 Burton names Jefferson Dunn, the Commissioner of the Alabama Department of Corrections, as a defendant.
On April 26, 2019, the Defendant filed a document styled as "Defendant's Answer and Motion to Dismiss." (Doc. 22). The Defendant, however, did not specify the Federal Rule of Civil Procedure under which he moved to dismiss. In the document, the Defendant merely asserts in the "Response to the Prayer for Relief" that "Burton's rights under RLUIPA, ARFA, and the First Amendment will not be violated during his execution" and "asks that this matter be dismissed." (Doc. 22 at 18). There are scant references to non-controlling cases within the document. For example, in a footnote, the Defendant cites two cases from another circuit court, Jackson v. Danberg, 594 F.3d 210, 230 (3d Cir. 2010), and state court, Thompson v. Dep't of Corrs., 18 P.3d 1198, 1208 (Cal. App. 2001). (Doc. 22 at 10 n.8). Under the "Response for Prayer for Relief," the Defendant refers to Justice Kavanaugh's concurrence in Murphy v. Collier, ___ U.S. ___, ___, 139 S.Ct. 1475, 1475-76 (2019). (Doc. 22 at 18). The document itself, however, contains no briefing in support of dismissal. Additionally, under the heading "Defenses," the Defendant states that "[t]his action fails to state a claim for relief as a matter of law." (Doc. 22 at 19).
Federal Rule of Civil Procedure 7(b)(1)(B) requires that "a request for a court order must be made by motion. The motion must . . . state with particularity the grounds for seeking the order." The Defendant's general request to dismiss, embedded within the Answer, does not comply with FED.R.CIV.P. 7(b)(1)(B).
In addition to lacking particularity, the motion to dismiss is not timely. The "failure to state a claim upon which relief can be granted" is both a basis for a motion and a defense that must be asserted in a responsive pleading. See FED.R.CIV.P. 12(b)(6). Clearly, "[o]ne does not sacrifice the defense available under Rule 12(b)(6) by failing to raise it in a motion and, instead, asserting it in an answer." Canal Ins. Co. v. INA Trucking, LLC, 2017 WL 1146984, at *8 (M.D. Ala. 2017) (referencing FED.R.CIV.P. 12(b)). However, "a motion" asserting the defense of "failure to state a claim upon which relief can be granted" "must be made before pleading if a responsive pleading is allowed." Id. (citing FED.R.CIV.P. 12(b) and United States v. Alabama Dep't Mental Health, Mental Retardation, 2010 WL 447399, at *4 (M.D. Ala. 2010), aff'd sub nom. United States v. Alabama Dep't of Mental Health & Mental Retardation, 673 F.3d 1320 (11th Cir. 2012) ("Rule 12(b) requires a defendant to make a motion pursuant to 12(b)(1) or 12(b)(6) prior to filing a responsive pleading.")). An answer is a responsive pleading, and the Defendant filed one. See FED.R.CIV.P. 7(a)(2). When the Defendant filed an answer and requested dismissal in the same document, he necessarily failed to raise a Rule 12(b)(6) motion to dismiss "before pleading." Consequently, the motion to dismiss is untimely. See, e.g., Leonard v. Enter. Rent a Car, 279 F.3d 967, 971 n.6 (11th Cir. 2002) ("After answering the complaint, the defendants filed Rule 12(b)(6) motions to dismiss the plaintiffs' claims. Under Rule 12(b), these motions were a nullity; by filing an answer, the defendants had eschewed the option of asserting by motion that the complaint failed to state a claim for relief.").
In his reply, the Defendant acknowledges his error in filing a simultaneous answer and motion to dismiss, but he requests that this Court convert the motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6) into a motion for judgment on the pleadings pursuant to FED.R.CIV.P. 12(c). The Court recognizes that there are circumstances in which a Rule 12(b)(6) motion may be construed as a Rule 12(c) motion. See, e.g., Skrtich v. Thornton, 280 F.3d 1295, 1307 n.13 (11th Cir. 2002) (where the motion to dismiss was filed three months after the answer, the Court noted that a Rule 12(b)(6) motion may be construed as 12(c) motion for judgment on the pleadings); Whitehurst v. Wal-Mart Stores East, L.P., 329 F. App'x 206 (11th Cir. 2008) (per curiam) (rejecting plaintiff's argument that Rule 12(b)(6) motion was untimely because court could construe the motion to dismiss as a Rule 12(c) motion).2
Given that the Defendant's motion to dismiss is not a separate, fully briefed motion but was simply a request embedded within the Answer, the Court is not inclined to construe the motion to dismiss as a motion for a judgment on the pleadings. See In re Hornsby, 2016 WL 5107057, at *1 n.2 (S.D. Ga. Sept. 19, 2016) (determining a "hybrid pleading-motion was procedurally improper" and declining to construe the Rule 12(b)(6) motion to dismiss which was "in effect a nullity" as a Rule 12(c) motion for judgment on the pleadings under the circumstances (citations omitted)).
Moreover, even if the Court were to convert the motion to dismiss for failure to state a claim pursuant to FED.R.CIV.P. 12(b)(6) to a motion for judgment on the pleadings pursuant to FED.R.CIV.P. 12(c), the Defendant has failed to support the motion with sufficient legal analysis. The Defendant fully briefed the issues for the first time in his reply brief.
"Arguments raised for the first time in a reply brief are not properly before a reviewing court." United States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994) (citation omitted); see also United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002), cert. denied, 539 U.S. 951 . . . (2003); United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999); United States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir. 1996).
Herring v. Secretary, Dep't of Corr., 397 F.3d 1338 (11th Cir. 2005) (§2254 death penalty case).
The interests of justice are best served by denying the Defendant's motion to dismiss without prejudice, as the Defendant may be afforded the right to raise the defense asserted in the Answer by an appropriate motion in the future. See Canal, supra.
CONCLUSION
Accordingly, it is
ORDERED that the Motion to Dismiss (doc. 22) is DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD— no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
