UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
January 4, 2011
THOMAS A. LUBRANO, PLAINTIFF,
THE STATE OF NEW YORK,
THE COUNTY OF SUFFOLK,
THE TOWN OF BROOKHAVEN, DAVID A. PATERSON, STEVE LEVY, MARK LESKO, DEFENDANTS.
The opinion of the court was delivered by: Seybert, District Judge:
MEMORANDUM & ORDER
Defendants have written to the Court requesting clarification regarding what briefing schedule applies to their proposed motions to dismiss. See Docket Nos. 11, 21, 22. As far as the Court can figure, at least the New York State and Suffolk County Defendants contend that they have neither been properly served, nor waived service. Thus, these Defendants contend that Rule 12(a)'s timeframes do not apply to their proposed motions. The Court rules as follows:
The New York State Defendants*fn1 and Suffolk County Defendants shall file and serve their moving papers by January 31, 2011. The New York State Defendants, who are apparently aware of this litigation (see Docket No. 11), are directed to file a Notice of Appearance before that date.
The Town of Brookhaven Defendants' proposed motion to dismiss is a different matter. On August 6, 2010, these Defendants filed a Verified Answer. Thus, they can no longer move to dismiss under FED. R. CIV. P. 12(b), because, as the Rule itself states, "[a] motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed."
See, e.g., Diez v. Wash. Mut. Bank, 09-CV-2390, 2010 U.S. Dist. LEXIS 135457, at *1 (E.D.N.Y. Dec. 21, 2010) (denying a post-answer Rule 12(b)(6) motion as "improper"); Federal Ins. Co. v. M/V Villr D'Aquarius, 08-CV-8997, 2009 WL 3398266, *3 (S.D.N.Y. 2009) (Rule 12(b)(6) motion cannot be made after an answer); Leonard v. Enterprise Rent a Car, 279 F.3d 967, 971 n.6 (11th Cir. 2002). To that end, absent both explanation and the Court's express permission, the Court will not entertain a Rule 12(b) motion from the Town of Brookhaven Defendants. If the Town of Brookhaven Defendants seek dismissal under some other rule*fn2 (e.g., a FED.R. CIV. P. 37 motion predicated on a failure to comply with discovery), that motion should be filed by January 31, 2011.
Plaintiff shall respond to any motions to dismiss by February 28, 2011. Replies, if any, are due March 14, 2011.
The Clerk of the Court is directed to serve a copy of this Order upon:
Susan M. Connolly, Esq. State of New York Office of the Attorney General Suffolk Regional Office 300 Motor Parkway, Suite 205 Hauppauge, NY 11788
Joanna Seybert, U.S.D.J.
Central Islip, New York