Filed: Aug. 26, 2015
Latest Update: Aug. 26, 2015
Summary: ORDER STRIKING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT SEAN F. COX , District Judge . Plaintiffs filed this action on December 3, 2014, asserting civil RICO and other fraud-related claims against Defendants. (Complaint, Doc. #1). On July 28, 2015 at 3:53 p.m., Defendants James L. Carey ("Carey) and Automated Controls & Engineering, LLC ("ACE") filed an Answer to Plaintiffs' Complaint. (Answer, Doc. #25). Also on July
Summary: ORDER STRIKING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT SEAN F. COX , District Judge . Plaintiffs filed this action on December 3, 2014, asserting civil RICO and other fraud-related claims against Defendants. (Complaint, Doc. #1). On July 28, 2015 at 3:53 p.m., Defendants James L. Carey ("Carey) and Automated Controls & Engineering, LLC ("ACE") filed an Answer to Plaintiffs' Complaint. (Answer, Doc. #25). Also on July ..
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ORDER STRIKING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT
SEAN F. COX, District Judge.
Plaintiffs filed this action on December 3, 2014, asserting civil RICO and other fraud-related claims against Defendants. (Complaint, Doc. #1).
On July 28, 2015 at 3:53 p.m., Defendants James L. Carey ("Carey) and Automated Controls & Engineering, LLC ("ACE") filed an Answer to Plaintiffs' Complaint. (Answer, Doc. #25). Also on July 28, 2015, at 3:56 p.m., Defendants Carey and ACE filed a joint "Motion to Dismiss or to Make More Definite and Certain." (Mo. to Dismiss, Doc. #26).
In their motion to dismiss, Carey and ACE argue that 1) Plaintiffs' Complaint should be dismissed pursuant to Civil Rule 12(b)(6) because Plaintiffs have failed to state a claim upon which relief may be granted, and 2) in the alternative, "Plaintiffs should be ordered to file an amended complaint making their allegations . . . more definite and certain as to the ACE Defendants." (Defs.' Motion at 2-3).
Carey and ACE's motion is premised, in part, on Civil Rule 12(b). Civil Rule 12(b) provides, in pertinent part:
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
. . . .
(6) failure to state a claim upon which relief may be granted.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. . . .
Fed. R. Civ. P. 12(b)(6) (emphasis added).
Carey and ACE's motion is also premised, in part, on Civil Rule 12(e). It provides, in pertinent part:
(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. . . .
Fed. R. Civ. P. 12(e) (emphasis added).
Defendants filed their "Motion to Dismiss or to Make More Definite and Certain" on July 28, 2015, (Doc. #26), approximately three minutes after they filed their Answer to Plaintiff's Complaint. (Doc. #25). Therefore, Defendants did not file their Motion to Dismiss "before pleading," as required by Civil Rule 12(b). Further, Defendants did not move for a more definite statement "before filing a responsive pleading," as required by Civil Rule 12(e). Accordingly, the Court shall STRIKE Defendants' Motion to Dismiss or to Make More Definite and Certain (Doc. #26) for failure to comply with Federal Rules of Civil Procedure 12(b) and 12(e).
IT IS SO ORDERED.
