United States District Court, D. New Mexico
CNSP, INC. D/B/A NMSURF, Plaintiff,
CITY OF SANTA FE, Defendant.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon “Plaintiff's
Motion to Strike Defendant City of Santa Fe's Rule
12(b)(1) Motion to Dismiss, Motion to Dismiss Plaintiff's
Claims for Violations of the New Mexico Constitution, and
Motion to Dismiss for Failure to State a Claim” (Motion
to Strike), filed April 13, 2017. (Doc. 17). Defendant filed
a response on April 17, 2017, and Plaintiff filed a reply on
April 19, 2017. (Docs. 19 and 20). Having considered the
Motion to Strike and accompanying briefing, the Court denies
the Motion to Strike.
Relevant Procedural Background
March 22, 2017, Plaintiff served its complaint and summons on
Defendant. (Doc. 6). Rather than serving an answer to the
complaint within 21 days of being served the complaint and
summons, Defendant filed three Fed.R.Civ.P. 12(b) motions to
dismiss: one on March 28, 2017, and two on April 11, 2017.
(Docs. 7, 13, and 14). See Fed. R. Civ. P. 12(b)
(allows defendants to file a Rule 12(b) motion instead of
first motion to dismiss (Motion to Dismiss One), Defendant
moves for dismissal of the entire action under Rule 12(b)(1)
asserting that the Court lacks federal subject matter
jurisdiction. (Doc. 7). In the second motion to dismiss
(Motion to Dismiss Two), Defendant moves to dismiss state
claims under Rule 12(b)(1), 12(b)(6) (failure to state a
claim upon which relief can be granted), or Rule 12(b)(7)
(failure to join an indispensable party). (Doc. 13). Finally,
in the third motion to dismiss (Motion to Dismiss Three),
Defendant moves to dismiss federal claims under Rule
12(b)(6). (Doc. 14).
makes two arguments in support of its Motion to Strike.
Plaintiff argues first that the Court should strike Motion to
Dismiss Two and Motion to Dismiss Three under Rule 12(g)(2).
Second, Plaintiff argues that the Court should dismiss all
three motions to dismiss, which collectively total 46 pages,
because D.N.M.LR-Cv 7.5 limits a motion to 27 pages.
1. Rule 12(g)(2)
Rule 12(g)(2) states:
Except as provided in Rule 12(h)(2) or (3), a party that
makes a motion under [Rule 12] must not make another motion
under [Rule 12] raising a defense or objection that was
available to the party but omitted from its earlier [Rule 12]
correctly contends that Defendant's Rule 12(b) arguments
in Motion to Dismiss Two and Motion to Dismiss Three were
available to Defendant at the time Defendant filed Motion to
Dismiss One. Defendant asserts, however, that Rule 12(g)(2)
does not bar Motion to Dismiss Two and Motion to Dismiss
Three, because those motions are excepted under Rule 12(h)(2)
12(h)(2) allows a defendant to raise a Rule 12(b)(6) defense
of “[f]ailure to state a claim upon which relief can be
granted” and a Rule 12(b)(7) defense of failure
“to join a person required by Rule 19(b)” either
in a Fed.R.Civ.P. 7(a) pleading, in a Rule 12(c) motion for
judgment on the pleadings, or “at trial.” Rule
12(h)(3) states that “[i]f a court determines at any
time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”
Defendant's Successive Rule 12(b)(1) Assertions
raises Rule 12(b)(1) assertions of lack of subject matter
jurisdiction in both Motion to Dismiss One and Motion to
Dismiss Two. Rule 12(h)(3) clearly allows the Court to
consider subject matter jurisdiction issues at any time.
Hence, the Court may consider the Rule 12(b)(1) assertion
raised in Motion to Dismiss Two.
Defendant's Successive ...