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CNSP, Inc. v. City of Santa FE

United States District Court, D. New Mexico

February 9, 2018

CNSP, INC. D/B/A NMSURF, Plaintiff,
v.
CITY OF SANTA FE, Defendant.

          MEMORANDUM OPINION AND ORDER

         This 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.

         A. Relevant Procedural Background

          On 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 filing answer).

         In the 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).

         B. Discussion

         Plaintiff 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] motion.

         Plaintiff 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) and (3).

         Rule 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.”

         a. Defendant's Successive Rule 12(b)(1) Assertions

         Defendant 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.

         b. Defendant's Successive ...


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