(PS) Winters, et al v. Jordan, et al, No. 2:2009cv00522 - Document 123 (E.D. Cal. 2010)
Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 6/15/2010 ORDERING that defendant Valerie Logsdon's 77 answer to plaintiffs' Third Amended Complaint is stricken without prejudice to refiling. If necessary, Logsdon may file an answe r to the Third Amended Complaint within 14 days after the court has fully resolved her special 72 motion to strike and motion to dismiss. The court will resolve Logsdon's special motion to strike and motion to dismiss through a separate order and/or proposed findings and recommendations.(Duong, D)
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(PS) Winters, et al v. Jordan, et al Doc. 123 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BRENT ALLEN WINTERS, et al., 11 Plaintiffs, No. 2:09-cv-00522 JAM KJN PS v. 12 ORDER DELORES JORDAN, et al., 13 14 15 Defendants. ______________________________/ On October 9, 2009, defendant Valerie Logsdon filed a special motion to strike 16 plaintiffs’ Third Amended Complaint pursuant to California Code of Civil Procedure § 425.16, 17 and a timely motion to dismiss plaintiffs’ Third Amended Complaint pursuant to Federal Rule of 18 Civil Procedure 12(b)(6). (See Dkt. Nos. 72.) However, Logsdon simultaneously filed an 19 answer to plaintiff’s Third Amended Complaint. (Dkt. No. 77.) As stated below, the 20 undersigned will strike Logsdon’s answer, subject to refiling if necessary, and will consider the 21 pending motions. 22 “A Rule 12(b)(6) motion must be made before the responsive pleading.” Elvig v. 23 Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004) (emphasis in original); see also 24 Dent v. Cox Commc’ns Las Vegas, Inc., 502 F.3d 1141, 1143 n.3 (9th Cir. 2007). Here, 25 Logsdon has presented the court with a novel circumstance by filing a Rule 12(b)(6) motion and 26 an answer at the same time, and before the close of pleadings. It appears that Logsdon intended Dockets.Justia.com 1 that the court consider her Rule 12(b)(6) motion notwithstanding the fact that she filed an answer 2 to the operative pleading on the same day. The undersigned construes the answer as having been 3 protectively filed. The undersigned will strike, sua sponte, Logsdon’s answer pursuant to Federal 4 Rule of Federal Procedure 12(f)(1), subject to refiling, if necessary, after the court has resolved 5 Logsdon’s special motion to strike and motion to dismiss. 6 For the foregoing reasons, IT IS HEREBY ORDERED that: 7 1. 8 9 Defendant Valerie Logsdon’s answer to plaintiffs’ Third Amended Complaint (Dkt. No. 77), is stricken without prejudice to refiling. 2. If necessary, Logsdon may file an answer to the Third Amended 10 Complaint within 14 days after the court has fully resolved her special motion to strike and 11 motion to dismiss (Dkt. Nos. 72). The court will resolve Logsdon’s special motion to strike and 12 motion to dismiss through a separate order and/or proposed findings and recommendations. 13 14 IT IS SO ORDERED. DATED: June 15, 2010 15 16 17 18 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 2
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