ABDEL-FATTAH
v.
BELAL
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The court held that a motion to dismiss filed after an answer is a nullity and must be denied.
Defendants, appearing pro se, filed a motion to dismiss Plaintiff's complaint after they had already answered it. The motion also failed to comply wit…
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This cause came on for consideration without oral argument on the following motion filed herein: MOTION: MOTION TO DISMISS AND REQUEST FOR HEARING ON MOTION TO DISMISS (Doc. No. 17) FILED: May 30, 2023
THEREON it is ORDERED that the motion is DENIED. Defendants, appearing pro se, have filed a motion to dismiss Plaintiff’s complaint and request a hearing thereon. Doc. No. 17. On review, however, the motion fails to comply with the Local Rules, including Local Rules 3.01(a) and 3.01(g). Id. Moreover, Defendants have previously answered the complaint. See Doc. No. 11. So, their motion to dismiss for failure to state a claim is “a nullity.” See 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.”); Fed. R. Civ. P. 12(b) (“A motion asserting [several defenses, to include improper venue and failure to state a claim], must be made before pleading if a responsive pleading is allowed.”). See also Doolin v. Borg Warner Corp., No. 3:16-cv-778-J-34PDB, 2017 WL 10841697, at *1 (M.D. Fla. Oct. 17, 2017) (“[Dl]istrict courts routinely deny motions to dismiss which are filed simultaneously with or after an answer is filed.” (citations omitted)). For these reasons, Defendants’ Motion to Dismiss and Request for Hearing on Motion to Dismiss (Doc. No. 17) is DENIED. DONE and ORDERED in Orlando, Florida on June 1, 2023.
LESLIE NOFFMAN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to: Counsel of Record Unrepresented Parties