United States District Court, D. Kansas
ANTHONY J. HAMPTON, Plaintiff,
BARCLAYS BANK DELAWARE, et al., Defendants.
MEMORANDUM & ORDER
D. Crabtree United States District Judge
the court is defendant Experian Information Solutions,
Inc.'s (“Experian”) Motion to Dismiss for
Failure to State a Claim and Joinder in Equifax's Motion
to Dismiss (Doc. 87). Experian moves for dismissal under
Federal Rule of Civil Procedure 12(b)(6). But, Experian filed
an Answer (Doc. 80) to plaintiff's Amended Complaint
before moving for dismissal. And, the court cannot convert
Experian's Motion to Dismiss into a motion for judgment
on the pleadings under Federal Rule of Civil Procedure 12(c)
because the pleadings are not closed. The court thus denies
Experian's Motion to Dismiss for Failure to State a Claim
and Joinder in Equifax's Motion to Dismiss (Doc. 87).
13, 2018, plaintiff Anthony J. Hampton, proceeding pro se,
initiated this action by filing his Complaint. Doc. 1. On
August 15, 2018, Experian filed an Answer to the Complaint.
Doc. 23. On September 17, 2018, Mr. Hampton filed a First
Amended Complaint. Doc. 48. The First Amended Complaint named
nine defendants: (1) Barclays Bank Delaware; (2) Discover
Bank; (3) loanDepot.com, LLC; (4) Marketplace Loan Grantor
Trust, Series 2016-LD1; (5) Equifax, Inc.; (6) Equifax
Information Services, LLC; (7) Experian; (8) Transunion, LLC;
and (9) John Does 1-10. Five of the defendants, including
Equifax Information Services, LLC, filed motions to dismiss
under Federal Rule of Civil Procedure 12. Docs. 56, 58, 61,
78, 83. Pertinent to Experian's joinder request, Equifax
Information Services, LLC sought dismissal under Rule
12(b)(6). Doc. 83 at 2-3. The other three defendants
identified by name in the Complaint-Barclays Bank Delaware,
Experian, and Transunion, LLC-filed Answers. Docs. 53, 60,
80. Experian filed its Answer on December 4, 2018. Doc. 80.
February 11, 2019, before the court ruled on the Rule 12
motions, Experian filed its Motion to Dismiss for Failure to
State a Claim and Joinder in Equifax's Motion to Dismiss.
Doc. 87. In that motion, Experian moves for dismissal based
on the factual and legal arguments raised by Equifax
Information Services, LLC in the Motion to Dismiss filed at
Document 83. Doc. 87 at 1-2.
procedural defect in Experian's motion prevents the court
from reaching the merits of the motion. Rule 12(b) of the
Federal Rules of Civil Procedure identifies several defenses
that defendants may raise by motion. But, “[a] motion
asserting any of these defenses must be made before
pleading if a responsive pleading is allowed.”
Fed.R.Civ.P. 12(b) (emphasis added). Under “the plain
language of Federal Rule of Civil Procedure 12(b), it is
beyond dispute that a motion to dismiss brought pursuant to
Rule 12(b)(6) is untimely when presented after the filing of
an answer.” In re Rosales, Bankr. No. 12-24965
MER, 2013 WL 1397449, at *2 (Bankr. D. Colo. Apr. 5, 2013)
(quoting Stevens v. Showalter, 458 B.R. 852, 856 (D.
Md. 2011)). Because Experian filed its Answer before it moved
to join Equifax Information Services, LLC's motion, it
cannot rely on Rule 12(b)(6) as a basis for relief.
when a “motion to dismiss is made after filing the
answer, the motion should be treated as a motion for judgment
on the pleadings under Rule 12(c).” Five Star
Automatic Fire Prot., LLC v. Nuclear Waste P'ship,
LLC, Civ. No. 14-622 JCH/GBW, 2016 WL 9447764, at *2
(D.N.M. May 13, 2016) (citing Jacobsen v. Deseret Book
Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002)). But, a
party may seek dismissal under Rule 12(c) only “[a]fter
the pleadings are closed-but early enough not to delay
trial.” Fed.R.Civ.P. 12(c). When a case involves
multiple defendants, “[t]he pleadings are not closed
until all defendants have filed an answer, even when one
defendant has filed a motion to dismiss instead of an
answer.” Garvey v. Seterus, Inc., No.
5:16-cv-00209-RLV, 2017 WL 2722307, at *12 (W.D. N.C. June
23, 2017) (quoting Nationwide Children's Hosp., Inc.
v. D.W. Dickey & Son, Inc. Emp. Health & Welfare
Plan, No. 2:08-cv-1140, 2009 WL 5247486, at *1 (S.D.
Ohio Dec. 31, 2009)). And, until all defendants have filed an
answer, “a remedy under Rule 12(c) is not
available.” Scottsdale Ins. Co. v. Doe, No.
7:13-CV-00342, 2014 WL 3778510, at *3 (W.D. Va. July 30,
2014); see also Stands Over Bull v. Bureau of Indian
Affairs, 442 F.Supp. 360, 367 (D. Mont. 1977)
(“When a[ny] defendant has failed to file an answer, a
motion for judgment on the pleadings is not the correct
procedural remedy.” (citing Gen. Motors Corp. v.
Blevins, 144 F.Supp. 381, 389 (D. Colo. 1956))).
the five defendants who filed Rule 12(b) motions have not
filed answers. The pleadings thus are not closed so, the
court cannot convert Experian's Rule 12(b) Motion to
Dismiss into a Rule 12(c) motion for judgment on the
pleadings. The court must deny Experian relief because the
Federal Rules of Civil Procedure do not permit Experian to
seek dismissal for failure to state a claim given the
case's present procedural posture. But, because the court
denies Experian's motion without reaching the merits of
the motion, it denies the motion without prejudice to
Experian filing a motion for judgment on the pleadings after
all defendants either have filed answers or are dismissed
from the action.
IS THEREFORE ORDERED BY THE COURT THAT
Motion to Dismiss for Failure to State a Claim and Joinder in
Equifax's Motion to Dismiss (Doc. 87) is denied without
IS SO ORDERED.