SAUER CONSTRUCTION, LLC
v.
UNITED STRUCTURES OF GEORGIA, LLC
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Sauer Construction moved to dismiss Counts IV and V of the Amended Counterclaim under Rules 12(b)(6) and 9(b), arguing they fail to state a claim. The court denied the motion as moot because Sauer had already filed an answer to the counterclaim, rendering any Rule 12(b) motion procedurally improper.
A Rule 12(b)(6) motion to dismiss is improper and rendered a nullity once an answer to a pleading has been filed. The motion must be made before or with the responsive pleading, not after. Therefore, Sauer's motion is denied as moot.
[1] A motion to dismiss under Federal Rule of Civil Procedure 12(b) is rendered a nullity once a responsive pleading, such as an answer, has been filed.
[2] A defendant who files an answer to a counterclaim waives the right to subsequently move for dismissal of that counterclaim under Rule 12(b)(6).
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Once an answer to a complaint is filed, any Rule 12(b) motion to dismiss is rendered a nullity.”
Establishes the core procedural rule that Rule 12(b) motions cannot be brought after an answer has been filed.
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Join FLexlaw to unlock all legal intelligenceSauer Construction filed an Answer and Affirmative Defenses to an Amended Counterclaim filed by United Structures of Georgia, LLC (Doc. 44). After fil…
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and GREAT MIDWEST INSURANCE COMPANY, Case No.: 3:24-cv-943-WWB-PDB
Defendants.
ORDER
THIS CAUSE is before the Court on Sauer Construction, LLC's (“Sauer") Motion to Dismiss Counts Four and Five of the Amended Counterclaim (Doc. 46). Therein, Sauer argues that Counts IV and V of United Structures of Georgia, LLC's Amended Counterclaim (Doc. 42 at 12–21) should be dismissed pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) for failure to state a claim.
Pursuant to Rule 12(b), motions asserting any of the defenses listed in Rule 12(b)(1) through (7) “must be made before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b). Once an answer to a complaint is filed, any Rule 12(b) motion to dismiss is rendered a nullity. Leonard v. Enter. Rent a Car, 279 F. 3d 967, 971 n.6 (11th Cir. 2002) (“After answering the complaint, the defendants filed Rule 12(b)(6) motions to dismiss the plaintiffs' claims. Under Rule 12(b), these motions were a nullity; by filing an answer, the defendants had eschewed the option of asserting by motion that the complaint failed to state a claim for relief."); see also Doolin v. Borg Warner Corp., No. 3:16-cv-778-J, 2017 WL 10841697, at *1–2 (M.D. Fla. Oct. 17, 2017).
Sauer filed an Answer and Affirmative Defenses to the Amended Counterclaim (Doc. 44). Therefore, any motion to dismiss pursuant to Rule 12(b)(6) is improper and Sauer's Motion will be denied as moot.
Accordingly, it is ORDERED and ADJUDGED that Sauer's Motion to Dismiss Counts Four and Five of the Amended Counterclaim (Doc. 46) is DENIED as moot. On or before April 21, 2025, Sauer may file an amended answer to substantively respond to Counts IV and V.
DONE AND ORDERED in Jacksonville, Florida on April 14, 2025.
WENDY W. BERGER UNITED STATES DISTRICT JUDGE
Copies furnished to: Counsel of Record