United States District Court, D. South Dakota, Western Division
CHEVAL INTERNATIONAL and AUGUST K. ANDERSON, Plaintiffs,
SMARTPAK EQUINE, LLC, Defendant.
JEFFREY L. VIKEN, Chief Judge.
Plaintiffs Cheval International and August K. Anderson (hereinafter collectively referenced as "Cheval") commenced this action against SmartPak Equine, LLC ("SmartPak") on February 24, 2014, by filing a summons and complaint with the Clerk of Court. (Dockets 1 & 4). SmartPak was served with the summons and complaint on February 27, 2014. (Docket 6). Attorney Thomas Fritz filed a notice of appearance on SmartPak's behalf on March 17, 2014. (Docket 7). Initially, SmartPak had until March 20, 2014, to answer Cheval's complaint. Fed.R.Civ.P. 12(a)(1)(A)(i) (A defendant must serve its answer within 21 days after being served with a summons and complaint.).
However, on March 19, 2014 the parties filed a "stipulated motion to extend time to file answer to complaint." (Docket 8). In this motion, SmartPak and Cheval "jointly move[d] this Court to extend the deadline by thirty (30) days for Defendant SmartPak Equine LLC to file and serve its Answer, which would extend the deadline to April 18, 2014." Id. On March 20, 2014, the court granted the parties' stipulated motion and ordered defendant to "file its answer by April 18, 2014." (Docket 9). On April 18, 2014, SmartPak filed a motion to dismiss Cheval's claims for failure to state a claim under Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Docket 10).
Cheval did not respond to the merits of SmartPak's motion to dismiss. (Dockets 17, 18, 21). Rather, Cheval asserts that SmartPak failed to file and serve its Rule 12(b)(6) motion to dismiss by the March 20, 2014, deadline and, as a result, SmartPak has not yet served its answer to Cheval's complaint. (Dockets 17, 18, 21). On these grounds, Cheval moves for a default judgment against SmartPak under Rule 55(a). (Dockets 17 at p.1; 18 at pp. 6-8). Cheval urges the court not to take judicial notice of SmartPak's exhibits 3 and 5 through 18 when considering SmartPak's Rule 12(b)(6) motion to dismiss. (Docket 21 at p. 7, n.1); see also Dockets 12-3 & 12-5 to 12-18 (The exhibits SmartPak requests the court to judicially notice which Cheval opposes.).
Cheval alternatively requests a court order requiring SmartPak to answer plaintiffs' complaint within five days of the entry of the court's opinion resolving SmartPak's motion to dismiss. (Docket 18 at pp. 1, 7.) If the court determines SmartPak's motion to dismiss was timely filed, Cheval requests 21 days from the date of the court's order to respond to the merits of SmartPak's motion to dismiss under Rule 6. Id. Additionally, if the court finds a default judgment is not warranted, Cheval requests the entry of a scheduling order under Rule 16(b). (Dockets 18 at p. 7). SmartPak agreed to the appropriateness of the parties holding a Rule 26(f) conference while its motion to dismiss was pending. (Dockets 20 at p. 6; 20-1 at p. 1).
1. SmartPak Timely Filed Its Motion to Dismiss
Cheval claims the court should enter a default judgment in its favor because SmartPak failed to timely file its motion to dismiss. Cheval asserts it joined in SmartPak's motion to extend the time in which SmartPak could file and serve its answer to Cheval's complaint with the understanding that SmartPak's "answer" would comport with "pleadings" as enumerated in Rule 7. (Docket 18 at pp. 4-6). Cheval argues SmartPak's Rule 12(b)(6) motion to dismiss was not an "answer" at all, and the court's order granting SmartPak until April 18, 2014, to file its "answer" is inapplicable to a motion to dismiss. Id. Cheval claims SmartPak's motion to dismiss should be denied as untimely filed after the expiration of the original March 20, 2014, deadline in which SmartPak was required to respond to Cheval's complaint. (Docket 21 at pp. 5-6). Cheval further asserts "the only plausible purpose for SmartPak's Motion to Dismiss is to delay these proceedings." Id. at 6. "Unless another time is specified... [a defendant must]... serv[e] a responsive pleading [including an answer]... within 21 days after being served with the summons and complaint...." Fed.R.Civ.P. 12(a)(1) (emphasis added). "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading.... But a party may assert the defense [of failure to state a claim upon which relief can be granted] by motion." Fed.R.Civ.P. 12(b). "A motion asserting [the defense of failure to state a claim upon which relief can be granted] must be made before pleading if a responsive pleading is allowed." Fed.R.Civ.P. 12(b). It naturally follows that "[a]ny effective extension of time granted to a defendant to file an answer, such as this extension, preserves the right to move under 12(b)." Gray v. Lewis & Clark Expeditions, Inc., 12 F.Supp.2d 993, 995 (D. Neb. 1998) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1361, at 449 (2d ed. 1990)).
Courts have long accepted the premise that where a "an extension of time has been allowed for filing a responsive pleading, logic and reason... appear to dictate that the extension should apply to a [Rule 12(b)] motion as well." Bechtel v. Liberty Nat. Bank, 534 F.2d 1335, 1341 (9th Cir. 1976) (citing Didactics Corp. v. Welch Scientific Co., 291 F.Supp. 890 (N.D. Ohio 1968)); see also Gray, 12 F.Supp.2d at 995; Ward v. City of Philadelphia, Civ. A. No. 87-2746, 1988 WL 131362, at *3 (E.D. Pa. Nov. 29, 1988) ("An extension of time for the filing of a responsive pleading, such as an answer, would apply with equal force to the filing of a Rule 12 motion."); Blanton v. P. Mut. Life Ins. Co., 4 F.R.D. 200, 205 (W.D. N.C. 1944) (holding that in the context of a motion for a bill of particulars or to strike under Rule 12(e) and (f), respectively, where a defendant was granted an enlargement of time to answer the complaint, "it carried with it an enlargement of time for filing any preliminary motion"); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1361, at 97 (3d ed. 2004) ("Of course, any effective extension of the period in which to serve a responsive pleading preserves the right to make a motion under Rule 12(b) during the enlarged time."); but see Ju Shu Cheung v. Dulles, 16. F.R.D. 550, 552 (D. Mass. 1954) ("While I realize there is a split of authority, I prefer the view that an extension of time for answer', without more, should not be taken to extend the time for filing dilatory or other pleas. The order should be explicit.... If the defendant has other pleadings in mind this should be made evident at the time that an extension is requested.").
Although there may be a split of authority as to whether an extension of time to answer a complaint also extends the time for further pleadings, this court finds that it does. As demonstrated above, the great weight of authority on the issue supports the court's interpretation that an "extension of time granted to a defendant to file an answer... preserves the right to move under 12(b)." Gray, 12 F.Supp.2d at 995. Furthermore, where the pleading raises a Rule 12(b)(6) defense, which could also be raised in the answer or on the merits at trial, best practices dictate that the merits of the pleading be addressed at the outset of the lawsuit. Ward, 1988 WL 131362, at *2.
The court does not accept Cheval's invitation to parse the extension language and factual background of every case where courts ultimately upheld this general principle. Cheval joined in SmartPak's motion for an extension of time in which to answer Cheval's complaint. If Cheval sought to exclude other responsive pleadings from the extension, the joint motion should have clearly delineated the limits of the extension.
2. Judicial Notice
SmartPak requests the court take judicial notice of nineteen separate exhibits under Federal Rule of Evidence 201(b) when adjudicating its Rule 12(b)(6) motion to dismiss. (Dockets 11 at p. 4; 12-1 to 12-19). The documents subject to SmartPak's request include: a certificate of amendment of Cheval's certificate of limited partnership from the South Dakota Secretary of State; certificates from the United States Patent and Trademark Office; screenshots of Cheval's website; screenshots of SmartPak's website following keyword searches of the website; screenshots of the search results obtained after performing keyword searches on Google; a screenshot of the website for Springtime, Inc.; a screenshot of the website for Your Guide to Garlic for Horse Nutrition; a Google website screenshot describing how a Google search works; a ...