United States District Court, D. Idaho
KELLI ROWLETTE, an individual, SALLY ASHBY, an individual, and HOWARD FOWLER, an individual, Plaintiffs,
GERALD E. MORTIMER, M.D., LINDA G. McKINNON MORTIMER, and the marital community comprised thereof, and OBSTETRICS AND GYNECOLOGY ASSOCIATES OF IDAHO FALLS, P.A., an Idaho professional corporation, Defendants.
MEMORANDUM DECISION AND ORDER
C. Nye, U.S. District Court Judge
13, 2018, Defendants Gerald Mortimer and Linda G. McKinnon
Mortimer (the “Mortimers”) filed a Motion to
Dismiss in the instant case. Dkt. 16. On June 18, 2018,
Defendant Obstetrics and Gynecology Associates of Idaho
Falls, P.A. (“OGA”), filed a Motion to Dismiss as
well. Dkt. 17. On June 26, 2018, Plaintiffs filed a Motion to
Strike the two motions as untimely. Dkt. 19. In light of the
Motion to Strike, the Court suspended the briefing schedule
on the two Motions to Dismiss and set an expedited briefing
schedule on the Motion to Strike. Dkt. 22. The Motion to
Strike has now been fully briefed and is ripe for the
Court's review. Having reviewed the record, the Court
finds that the parties have adequately presented the facts
and legal arguments in the briefs. Accordingly, in the
interest of avoiding further delay, and because the Court
finds that the decisional process would not be significantly
aided by oral argument, the Court decides the Motion on the
record without oral argument. Dist. Idaho Loc. Civ. R.
7.1(d)(2)(ii). For the reasons set forth below, the Court
finds good cause to DENY the Motion to
filed their Complaint in this matter on March 30, 2018. Dkt.
filed an Answer on May 4, 2018. Dkt. 10. Approximately six
weeks later, on June 19, 2018, OGA filed a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt.
Mortimers filed their joint Answer on May 29, 2018. Dkt. 13.
Approximately two weeks later, on June 13, 2018, the
Mortimers filed a Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6). Dkt. 16.
argument in support of their Motion to Strike is one
paragraph and reads in its entirety as follows:
Under Federal Rule of Civil Procedure 12(b)(6), a defendant
may move to dismiss a complaint for failure to state a claim
upon which relief may be granted. Fed.R.Civ.P. 12(b)(6).
“A Rule 12(b)(6) motion must be made before the
responsive pleading.” MacDonald v. Grace Church
Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006) (quoting
Elvig v. Calvin Presbyterian Church, 375 F.3d 951,
954 (9th Cir. 2004)) (internal quotations and citations
omitted). Because Defendants filed their answers prior to the
motions to dismiss, Defendants' Rule 12(b)(6) motions are
untimely and should not be considered.
Dkt. 19-1, at 2.
Plaintiffs correctly cite the general rule, they fail to
recognize that there is a mechanism for hearing a Rule
12(b)(6) Motion even when filed after a responsive pleading.
As Defendants note in their opposing briefs, that mechanism
is Rule 12(h). This allows for the Court to
“convert” a Rule 12(b)(6) Motion into a Rule
12(c) Motion if the substantive arguments were raised in the
responsive pleadings. This procedure is best explained in
Aldabe v. Aldabe, the seminal Ninth Circuit case on
Rule 12(h)(2) specifically authorizes use of the latter
motion to raise the defense of failure to state a claim.
Because it is only after the pleadings are closed that the
motion for judgment on the pleadings is authorized (Rule
12(c)), Rule 12(h)(2) should be read as allowing a motion
for judgment on the pleadings, raising the defense of failure
to state a claim, even after an answer has been filed.
Under that interpretation, Rules 12(c) and 12(h)(2) together
constitute a qualification of Rule 12(b)(6). The case for
adopting such a position is further strengthened where, as
here, each of the answers included the defense of failure to
state a claim. The motions to dismiss were not based on new
arguments for which appellant could claim to have been
616 F.2d 1089, 1093 (9th Cir. 1980) (emphasis added).
Numerous district and circuit courts have followed this
pattern,  often quoting Aldabe, as well as
Wright and ...