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Rowlette v. Mortimer

United States District Court, D. Idaho

July 19, 2018

KELLI ROWLETTE, an individual, SALLY ASHBY, an individual, and HOWARD FOWLER, an individual, Plaintiffs,
v.
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

          David C. Nye, U.S. District Court Judge

         I. INTRODUCTION

         On June 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 Strike.

         II. PROCEDURAL HISTORY

         Plaintiffs filed their Complaint in this matter on March 30, 2018. Dkt. 1.

         OGA 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. 17.

         The 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.

         III. DISCUSSION

         Plaintiffs' 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.

         While 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 this topic.

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 unprepared.

616 F.2d 1089, 1093 (9th Cir. 1980) (emphasis added). Numerous district and circuit courts have followed this pattern, [1] often quoting Aldabe, as well as Wright and ...


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