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Neff v. Standard Federal Bank

March 27, 2007

GARY NEFF, PLAINTIFF,
v.
STANDARD FEDERAL BANK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Sargus

ORDER

Defendant Standard Federal Bank has moved for an extension of time to answer the complaint based upon its filing of a motion to dismiss fewer than all of the claims in the complaint. Plaintiff has filed a memorandum on the issue simply requesting the Court to follow its customary practice in determining if such an extension should be granted.

Fed.R.Civ.P. 12(a)(4)(A) provides that the filing of a motion under Rule 12 suspends the time for filing an answer while the motion is under consideration and that an answer is due within ten days after the court's ruling on the motion. The Rule does not explicitly address the situation presented here. There appears to be only one decision holding that a defendant who moves to dismiss fewer than all the claims in a complaint must file an answer to the remaining claims at the same time rather than awaiting the court's ruling on the motion. See Gerlach v. Michigan Bell Telephone Co., 448 F.Supp. 1168 (E.D. Mich. 1978). As another court has noted, "[n]o other court has adopted the Gerlach court's reasoning or ruling ...." Ideal Instruments, Inc. v. Rivard Instruments, Inc., 434 F.Supp.2d 598, 638 (N.D. Iowa, 2006). This Court declines to adopt that decision as well. The motion for an extension (#12) is therefore granted.

Defendant's answer is due within ten days after the Court's ruling on the motion to dismiss.

Terence P. Kemp United States Magistrate Judge

20070327

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