Scally v. Flores
- Proceeding
- district
- Area
- civil
- Panel
- Mitchell D. Dembin (author)
Analysis
Plaintiff, a pro se prisoner, moved for summary judgment arguing that defendants failed to timely respond to his complaint. The court denied the motion as moot because defendants had filed a Rule 12(b)(6) motion to dismiss in lieu of an answer.
| What the court decided | The model |
|---|---|
Plaintiff's Motion for Summary Judgment is denied as moot.“Accordingly, the Court IT IS SO ORDERED.” | agree with court The court correctly identified that the filing of a Rule 12(b)(6) motion to dismiss in lieu of an answer rendered the plaintiff's argument regarding the failure to 'respond' moot. Under Federal Rule of Civil Procedure 12(a)(1)(C), a motion to dismiss under Rule 12(b) is a valid response to a complaint and satisfies the requirement to respond within the time limit. Therefore, the premise of the plaintiff's motion for summary judgment was factually incorrect and legally insufficient to warrant summary judgment relief. |
The order itself: sound — The order is procedurally sound. It correctly applies Federal Rule of Civil Procedure 12(a)(1)(C) (implicitly) by recognizing that a Rule 12(b)(6) motion constitutes a valid response to a complaint. The citation to Gabor v. Seligmann supports the proposition that such a motion is permissible in lieu of an answer. The conclusion that the motion for summary judgment is moot follows logically from the fact that the defendants did, in fact, respond to the complaint.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TONY EUGENE SCALLY, Case No.: 22cv0182-DMS-MDD 12 Plaintiff, ORDER DENYING AS MOOT 13 v. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 14 CORRECTIONAL OFFICERS A.
FLORES and E. VEGA, 15 [ECF No. 24] Defendants. 16 17 Plaintiff is a prisoner proceeding pro se and in forma pauperis with a 18 First Amended Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 7). Before 19 the Court is Plaintiff’s Motion for Summary Judgment arguing that 20 Defendants failed to timely respond to Plaintiff’s complaint by September 6, 21 2022. (ECF No. 24). 22 On September 2, 2022, Defendants responded to Plaintiff’s complaint by 23 filing a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 24 12(b)(6). (See ECF No. 20). Defendants are entitled to file a motion to 25 dismiss pursuant to Rule 12(b) in lieu of an answer. See, e.g., Gabor v. 26 Seligmann, 222 F. App’x 577, 579 (9th Cir. 2007). Accordingly, the Court 1 IT IS SO ORDERED. Dated: September 13, 2022 Vitel bs. [ Hon. Mitchell D. Dembin 4 United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27