IN RE: AV INDUTRIES CORP., Chapter 7, Debtor(s).
NOREEN WISCOVITCH RENTAS Plaintiff,
MUNICIPIO DE SAN JUAN, Defendant(s).
Case No. 11-08581 MCF, Adversary No. 14-00098 MCF.
United States Bankruptcy Court, D. Puerto Rico.
May 13, 2015.
OPINION AND ORDER
MILDRED CABAN FLORES, Bankruptcy Judge.
Before the Court is the Defendant’s Motion to Dismiss and Opposition thereto (Docket Nos. 36 and 40).
On September 4, 2014, Plaintiff filed an amended complaint after the Court granted Defendant’s request for a more definite statement (Docket Nos. 17 and 12). After obtaining an extension of time, Defendant answered the amended complaint on October 13, 2014 (Docket Nos. 22 and 21). Plaintiff moved to strike the answer to the amended complaint which was denied (Docket Nos. 25 and 31). On April 6, 2015, Defendant filed a motion to dismiss under the Federal Rules of Civil Procedure 12(b)(6) and a motion to stay discovery proceedings until disposition on the motion to dismiss (Docket Nos. 36 and 35). Plaintiff opposed the motion to dismiss (Docket No. 40).
According to Rule 12(b) of the Federal Rules of Civil Procedures which is made applicable by Fed. R. Bankr. P. 7012(b), “Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: . . . (b) failure to state a claim upon which relief can be granted. . . . A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b). Defendant had either a choice to answer the amended complaint or file a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b). Defendant chose to answer the amended complaint instead of filing a motion to dismiss under Rule 12(b)(6). Thus, Defendant’s motion to dismiss for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6) is denied without prejudice because a motion asserting this defense must be made before pleading, pursuant to Fed. R. Civ. P. 12(b). Consequently, the motion to stay discovery (Docket No. 35) is denied. The parties are granted 90 days to complete discovery and 30 days thereafter to file dispositive motions. If no timely dispositive motions are filed then a pretrial conference is set for 10/14/2015, at 9:00 A.M. at the U.S. Bankruptcy Court, Jose V. Toledo Federal Building and US Courthouse, 300 Recinto Sur Street, Third Floor, Courtroom 3, Old San Juan, Puerto Rico. A joint pretrial report is due seven (7) days before the pretrial conference.
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