United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Rule 12(f) Motion to Strike
Second F.R.C.P. 12(b)(6) Motion or Have it Deemed an Amended
Motion Replacing the First Amended Petition with Incorporated
Arguments (R Doc. 26) filed on August 29, 2019. Defendants filed
their Opposition (R. Doc. 28) on September 5, 2019.
advances two arguments in support of her Motion to Strike.
First, Plaintiff suggests that Defendants' Second Motion
to Dismiss (R. Doc. 17) is untimely because it was filed more
than 21 days after their first Motion to Dismiss (R. Doc.
12). Second, Plaintiff argues that Defendants' Second
Motion to Dismiss be stricken on the grounds that the
arguments raised therein have already been presented in the
first Motion to Dismiss.
Plaintiff suggests that the analysis falls under Fed.R.Civ.P.
15, Fed.R.Civ.P. 12 is applicable. Fed.R.Civ.P. 12(g)(2)
provides that “[e]xcept as provided in Rule 12(h)(2) or
(3), a party that makes a motion under this rule must not
make another motion under this rule raising a defense or
objection that was available to the party but omitted from
its earlier motion.” Fed.R.Civ.P. 12(h)(2), however,
provides the following:
to state a claim upon which relief can be granted, to join a
person required by Rule 19(b), or to state a legal defense to
a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
12(h) exempts a Rule 12(b)(6) motion from the waiver
provisions and, as set forth above, specifically provides
that such a motion may be raised up to and during trial.
See Albers v. Bd. of Cty. Comm'rs of Jefferson Cty.,
Colo., 771 F.3d 697, 701-04 (10th Cir. 2014) (defendants
had not waived a successive failure to state a claim argument
because Rule 12(h)(2) explicitly allows the objection even at
trial, and Rule 12(h)(1)'s waiver provision only applies
to objections under 12(b)(2)-(5)).
Court notes that this is not a circumstance where a Rule
12(b)(6) motion has been filed and denied, and then the
defendant files successive motions that could have been
brought in the original one. Although the Court need not
decide this issue, in that circumstance, it may be that a
responsive pleading must still be filed in accordance with
Rule 12(a)(4)(A). Even in that case, courts have noted that
the defense could still file a Rule 12(c) motion for judgment
on the pleadings Walzer v. Muriel Siebert & Co.,
447 Fed. App'x 377, 379 (3d Cir. 2011). The Court also
does not find that the defendant has intentionally sought to
circumvent the local rules pertaining to page limitations, as
neither motion is particularly lengthy. Any prejudice on that
basis is eliminated by allowing separate oppositions to be
Second Motion to Dismiss (R. Doc. 17), which asserts a
failure to state a claim upon which relief can be granted,
will not be stricken on the basis that it is untimely, or
that the arguments raised therein have been waived.
Court now turns to Plaintiff's argument that Defendants
“have already argued those matters stated in their
Second Motion.” (R. Doc. 26-2 at 2). To the contrary,
Defendants' Second Motion to Dismiss (R. Doc. 17) seeks
to dismiss Plaintiff's § 1983 claims, which argument
is not advanced in Defendants' first Motion to Dismiss
(R. Doc. 12). The Court, therefore, does not agree that
Defendants' Second Motion to Dismiss raises arguments
already advanced in their first Motion to Dismiss. While all
of the arguments are under the umbrella of Fed.R.Civ.P.
12(b)(6), the bases for these arguments are not duplicative.
Accordingly, Plaintiff's Motion to Strike (R. Doc. 26) on
the grounds of redundancy of arguments presented will be
denied. In addition, both motions are briefed and ready for
resolution. By addressing the arguments raised in both
motions and their respective oppositions, there is no
prejudice or harm to any party.
the foregoing, IT IS ORDERED that the 12(f)
Motion to Strike Second F.R.C.P. 12(b)(6) Motion or Have it
Deemed an Amended Motion Replacing the First Amended Petition