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Gaeta v. Mercer Belanger, P.C.

United States District Court, N.D. Indiana, Hammond Division

October 27, 2016

EDWARD GAETA, Plaintiff,
v.
MERCER BELANGER, P.C., Defendant.

          OPINION AND ORDER

          JOHN E. MARTIN MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on Plaintiff's “Motion to Strike ‘Defendant's Motion to Dismiss Complaint and for Summary Judgment Pursuant to Fed. Civil Rule 12(d)' or, in the Alternative, Motion to Exclude Matters Outside of the Pleadings” [DE 13], filed by Plaintiff on September 6, 2016.

         Defendant responded on September 19, 2016 [DE 17]. Plaintiff has not replied, and the time to do so has passed.

         I. Background

         Plaintiff sued Defendant in state court in July 2016, alleging various violations of the Fair Debt Collection Practices Act. Defendant removed the case to federal court.

         Defendant's deadline to respond to the complaint was September 2, 2016. On that date, Defendant met his deadline by filing a “Motion to Dismiss Complaint and for Summary Judgment Pursuant to Fed. Civil Rule 12(d)” [DE 11].

         Plaintiff now asks the Court to strike Defendant's motion. Plaintiff says Defendant's motion: (1) violates Local Rule 7-1 by being “two motions in one”; (2) violates the Federal Rules of Civil Procedure by purporting to allow Defendant to avoid filing a responsive pleading; and (3) improperly presents matters that are not contained in Plaintiff's complaint.

         In the alternative, Plaintiff asks the Court simply to exclude the outside matters presented in Defendant's motion.

         II. Analysis

         A. The motion to strike

         The Federal Rules of Civil Procedure address striking pleadings and parts of pleadings, not motions. See Fed. R. Civ. P. 12(f) (“The court may strike from a pleading . . .”); Centrifugal Acquisition Corp. v. Moon, No. 09-327, 2010 U.S. Dist. LEXIS 7684, *3 (E.D. Wisc. Jan. 14, 2010) (“Motions to strike apply to pleadings, not motions.”). Nonetheless, the Court will address the issues Plaintiff has raised.

         1. Local Rule 7-1

         Plaintiff argues that Defendant's motion violates Local Rule 7-1(a), which requires motions to be filed separately. N.D. Ind. L.R. 7-1(a). The Rule's only exception is that “alternative” motions may be filed in a single document, but Plaintiff says that Defendant has not filed “alternative” motions because Defendant's motion is styled as a “Motion to Dismiss Complaint and for Summary Judgment, ” not a “Motion to Dismiss Complaint or for Summary Judgment” (emphasis added).

         But Federal Rule of Civil Procedure 12(d), which Defendant's motion directly cites, expressly instructs the Court to treat a Rule 12(b)(6) motion to dismiss as a Rule 56 motion for summary judgment if the motion presents matters outside the pleadings and if the Court does not exclude those matters. So while the motion's title uses the word “and, ” the motion's substance requires the Court to infer the word “or.” In other words, the Court has a choice between excluding the outside matter and treating the motion as a Rule 12(b)(6) motion to dismiss, or considering the outside matter and treating the ...


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