IN THE SUPERIOR COURT OF THE
STATE OF RIDGEWAY
THEUNKNOWNSAVAGX,
Plaintiff,
v,
SHADOWCULTURE, in their official capacity
as a Corporal of the Ridgeway County Sheriff’s
Office,
GOODBUGGATTI, in their official capacity as
a Senior State Trooper of the Ridgeway State
Police,
Defendant.
DEFENDANT’S RESPONSE TO
PLAINTIFF’S MOTION TO STRIKE
Hon. EffortlessBrit
Docket Number: RSC-CV-3946
The Defendant’s, Corporal ShadowCulture and Trooper goodbugggatti, through the
Department of Justice, hereby respond in opposition to the Plaintiff’s Motion to Strike the
currently pending dismissal motion. Plaintiff has improperly jumped the gun and moves to strike
the motion as a cheap alternative, inconsistent with the procedural rules.
INTRODUCTION
1. Plaintiff moves to strike the currently pending Defendant’s Motion to Dismiss, citing Rid.
R. Civ. P. 12(3) by claiming it is either redundant, immaterial, impertinent, or scandalous.
This motion to strike is based upon a misunderstanding of procedural rules, and
specifically when a motion to dismiss may be filed before any formal answer. Plaintiff
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claims that a motion to dismiss is not allowed to be filed before a responsive pleading,
and therefore should not even be considered by this Court.
2. The Rules say otherwise, and the Court should acknowledge that.
3. Plaintiff has left out a key rule, that is Rule 12(1), which expressly states that a defendant
can raise certain defenses by motion, and that such motion “shall be made before a
pleading if a responsive pleading is allowed.”
4. Thus, in order to survive Plaintiff’s Motion to Strike, the Defendant’s need to prove that
(1) Their Motion to Dismiss raises at least one of the specified defenses under Rule
12(1); and (2) a responsive pleading is allowed in this matter.
ARGUMENT
I. THE MOTION TO DISMISS IS AUTHORIZED BY RULE 12(1)(5)
5. Under Rid. R. Civ. P. 12(1), a defendant may make a motion asserting a specific defense
before pleading, if a responsive pleading is allowed.
6. There are only eight specific defenses which a defendant can raise in a motion before a
pleading.
7. Here, Defendant’s Motion raises the fifth defense, which is failure to state a claim upon
which relief can be granted. See Rid. R. Civ. P. 12(1)(5).
8. Rule 12 thus resolves Plaintiff’s argument, as it clearly allows Defendant’s to make their
motion before a pleading. The procedural rules clearly define that a motion to dismiss is
not a pleading, but may be raised before one is made.
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9. If the Court agreed with Plaintiff’s Motion to Strike, it would go against the rule which
states “except that the following defenses may at the option of the pleader be made by
motion…shall be made before pleading if a responsive pleading is allowed.”
10. Therefore, the Court should deny Plaintiff’s Motion because Defendant’s are allowed to
make a motion to dismiss for failure to state a claim under Rule 12(1)(5) before pleading.
II. PLAINTIFF’S OWN CITATION OF RULE 7(1) ACTUALLY SUPPORTS
DEFENDANT’S
11. Plaintiff states that under Rule 7(1), a motion to dismiss is not an acceptable pleading.
Defendant’s agree.
12. That does not mean a motion to dismiss is prohibited. It only means that a motion is
simply a motion, and not a pleading.
13. In CRUM v. CIRCUS CIRCUS ENTERPRISES (2000) , the defendants did not file an1
answer, but rather a motion to dismiss, and the Court held that “a motion to dismiss is not
a “responsive pleading” within the meaning of Rule 15”.2
14. Further, Defendant’s submit that Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 216 F.3d 764 (9th Cir. 2000) actually demonstrates when a
pleading is made. Indeed, the circumstances of that case is very similar to the issue at
hand. Here, the defendants never filed an answer “or any other type of responsive
pleading” but instead, a motion to dismiss. Just like in CRUM, the Court held that “a
2 Citing Rule 15 of the Federal Rules of Civil Procedure
1 The full citation for this case is Gail Crum, Plaintiff-appellant, v. Circus Circus Enterprises; Circus Circus Casinos,
Inc.; Circus Circus Hotel Casino, Defendants-appellees, 231 F.3d 1129 (9th Cir. 2000). It can be found here: Justia
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motion to dismiss is not a pleading” (citing Fed. R. Civ. P. 7(a), and quoting Miles v.
Department of Army, 881 F.2d 777, 781 (9th Cir. 1989).
III. THE MOTION TO STRIKE IS PROCEDURALLY FAULTED
15. Plaintiff makes another improper request for relief under Rule 12(3), which can only be
made to strike a pleading, not a motion.
16. Plaintiff cannot possibly ask to strike the motion using a rule for pleadings, while also
claiming no pleading has been made. It makes no senese, and is a misapplication of the
rules.
IV. THE ABSENCE OF AN ANSWER IS NOT A PROCEDURAL DEFECT
17. Plaintiff’s motion to strike attempts to speed up the process, and bypass defendant’s
ability to object to the Complaint before answering. In their motion, Plaintiff repeatedly
claims that Defendants “have not filed an answer.”
18. However, Defendants cannot file an answer because of the pending Rule 12 motion.
19. Rule 12(5) states that “service of a motion under this rule alters the periods fixed by
subdivision 4”.
20. Rule 12(4) sets out the time in which a defendant shall answer to a complaint. In this
case, the Defendants are officers sued in their official capacity, and therefore they had
ninety-six (96) hours to respond. See Rid. R. Civ. P. 12(4)(2). Defendant’s filed a timely
Rule 12 motion, which altered the 96 hours.
21. Accordingly, the Court should rule on the pending motion before looking towards a
responsive pleading by the Defendants.
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CONCLUSION
22. For these reasons, Plaintiff’s Motion to Strike should be denied, and the Plaintiff should
be made to respond to the pending Motion to Dismiss.
Respectfully submitted,
Counsel for the Defendant’s
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