The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
Pending before the court is defendants' motion to dismiss under Fed. R. Civ. P. 12(b)(6). (Docket 27). For the reasons set forth below, the court denies the motion.
The following recitation includes only those facts necessary to resolve defendants' pending motion. The court incorporates by reference the more detailed factual and procedural history set forth in its previous order dated May 18, 2010. (Docket 25).
On May 3, 2010, plaintiff Aloysius Dreaming Bear, a Lakota student and graduating senior at Oelrichs High School, brought suit against the members of the school board and the superintendent of the school district. (Docket 1).
Mr. Dreaming Bear alleged defendants violated his right to free speech under the First Amendment by requiring him to wear a cap and gown over his traditional Lakota clothing at the 2010 graduation proceedings. Id. at ¶ 9. Mr. Dreaming Bear sought a preliminary and permanent injunction enjoining defendants from imposing the cap and gown policy on him and other Lakota students at the 2010 and all future graduation events. Id. at p. 3.
Mr. Dreaming Bear also sought an award of nominal damages and the costs of the action, including reasonable attorney's fees. Id. After filing the complaint, Mr. Dreaming Bear filed a motion for preliminary and permanent injunction and supporting memorandum. (Dockets 5 & 6).
On May 11, 2010, defendants filed a memorandum in opposition to Mr. Dreaming Bear's motion for injunctive relief. (Docket 21). The court held a hearing*fn1 on this matter on May 13, 2010. On May 18, 2010, the court entered an order denying Mr. Dreaming Bear's motion for injunctive relief and dismissing the complaint. (Docket 25). In a separate filing, the court entered judgment in favor of defendants. (Docket 26). Defendants now move under Fed. R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. (Docket 27). Defendants filed the motion in order "to conform to the record established in this case[.]" Id. Mr. Dreaming Bear resists defendants' motion, arguing, in pertinent part, the motion is untimely. (Docket 30). The court agrees defendants' motion is untimely.
Fed. R. Civ. P. 12(b) governs the presentation of legal defenses to claims for relief. Generally, a party asserting a defense must do so in the responsive pleading if one is required. Fed. R. Civ. P. 12(b). However, a party may assert certain enumerated defenses by motion. Relevant to this discussion is the defense of failure to state a claim upon which relief can be granted, more commonly known as a Rule 12(b)(6) motion. A motion asserting a Rule 12(b)(6) defense "must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim." Id. (emphasis added).
If a party fails to file a timely Rule 12(b)(6) motion, the party may still raise through other mechanisms the defense of failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(h) governs the waiver or preservation of the enumerated Rule 12(b) defenses. Subsection (2), which governs the defense of failure to state a claim upon which relief can be granted, provides as follows:
(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a ...