Unpublished Dispositiondouglas D. Bennett, Plaintiff-appellant, v. Ford Motor Credit Co., Defendant-appellee, 848 F.2d 188 (6th Cir. 1988)

ORDER

The plaintiff moves to strike counsel for the defendant and the defendant's brief on appeal from the district court's judgment dismissing this civil rights case. 42 U.S.C. § 1983. The appeal has been referred to panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In the plaintiff's motion to strike, he argues that the defendant failed to file an answer in the district court and, therefore, is not entitled to defend this appeal. The defendant did file a motion to dismiss in the district court. Under Fed. R. Civ. P. 12(b), a motion to dismiss for lack of jurisdiction should be filed before an answer is filed. Accordingly, the defendant is entitled to defend this appeal.

In his complaint, the plaintiff alleges that the defendant illegally repossessed the plaintiff's truck without a prior judicial hearing. The district court entered an opinion holding that the defendant did not act under color of state law for purposes of 42 U.S.C. § 1983. See Gary v. Darnell, 505 F.2d 741, 742 (6th Cir. 1974); Turner v. Impala Motors, 503 F.2d 607, 611 (6th Cir. 1974). We agree with the conclusions of the district court for the reasons stated in its opinion.

The motion to strike is denied. The judgment of the district court is affirmed under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.