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Louis Diez v. Washington Mutual Bank

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


December 21, 2010

LOUIS DIEZ, PLAINTIFF,
v.
WASHINGTON MUTUAL BANK,
(IN THE PROCESS OF BECOMING JPMORGAN CHASE BANK, N.A.) DEFENDANT.

The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM AND ORDER

On March 19, 2010, Defendant answered Plaintiff's pro se Complaint. See Docket No. 14. Nearly eight months later, on November 18, 2010, Defendant inexplicably moved to dismiss under FED. R. CIV. P. 12(b)(6) and (7). See Docket No. 43.

That motion is presently pending. Plaintiff has not yet formally opposed it. No matter. By answering, Defendant waived its right to seek dismissal under Rule 12(b). See Rule 12(b) ("A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed").

Accordingly, this motion is DENIED.*fn1 In addition, the Court warns Defendant's attorneys that, before moving again under Rule 12(b), they should probably read the rule itself. Any similar motions in the future may result in the Court imposing sanctions under FED. R. CIV. P. 11(b)(2).

SO ORDERED.

Joanna Seybert, U.S.D.J.

Dated:

Central Islip, New York


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