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Williamson v. Grano

United States District Court, D. New Mexico

November 26, 2018

JERRY WILLIAMSON and HORACE WINCHESTER, Plaintiffs, [1]
v.
MARC GRANO, as personal representative of the Estate of CAROL CANTRELL; and JACK CANTRELL, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION TO STRIKE

         THIS MATTER comes before the Court upon Defendants' Motion to Strike, filed September 24, 2018 (Doc. 33). Having reviewed the parties' briefs and applicable law, the Court finds that Defendant's motion is not well-taken and, therefore, is denied.

         BACKGROUND

         This case originated as a wrongful death lawsuit in state court, filed in the County of San Miguel, Fourth Judicial District Court, on March 29, 2018. In that lawsuit, Defendant Marc Grano, as personal representative of decedent Carol Cantrell, is suing Plaintiff Jerry Williamson for Ms. Cantrell's allegedly wrongful death from a fatal complication of untreated diabetes. Mr. Williamson is member/owner of WW Healthcare, L.L.C. which does business as Princeton Place, a skilled nursing facility located in Albuquerque, New Mexico. On May 9, 2018, Plaintiff Williamson (the defendant in the state court action) filed this separate federal action to compel arbitration of all matters related to the care and treatment that Ms. Cantrell received at Princeton Place.

         Defendants seek to strike several pleadings filed by Plaintiff relating to Plaintiff's Motion to Compel Arbitration, collectively referred to as Plaintiffs' Motion to Compel Arbitration:

• Williamson's Motion and Memorandum of Law in Support of His Motion to Compel Arbitration (Doc. 3);
• Plaintiff Williamson's Reply in Support of His Motion to Compel (Doc. 28); and
• Horace Winchester's Notice of Joinder in both Plaintiff's Motion and Reply and Notice of Completion of Briefing on Plaintiffs' Motion to Compel Arbitration (Docs. 29 and 31, respectively).

         DISCUSSION

         Plaintiffs' Motion to Compel Arbitration was filed on May 10, 2018. Defendants have not filed a response. Defendants have filed two Motions to Dismiss Amended Complaint to Compel Arbitration, both pursuant to Rule 12(b) and both of which have been fully briefed: one motion addresses the merits based on the arbitration agreement at issue here (Doc. 24) while the other seeks dismissal on jurisdictional grounds (Doc. 36).[2]

         Defendants claim they are not required to file a response to Plaintiffs' Motion to Compel Arbitration at this time for two reasons. First, Defendants contend that it is not appropriate to serve a response when a jurisdictional challenge is pending. In an e-mail exchange, counsel for Defendants advised counsel for Plaintiffs that Defendants' Rule 12 jurisdictional motion tolled deadlines for responding to dispositive motions, just as it tolls the filing of an answer to a complaint. See Doc. 33-2 at 2 (e-mail exchange). Second, defense counsel believes that the Court cannot grant relief to Plaintiffs based on their motion to compel arbitration because the complaint has been amended. Defense counsel therefore takes the position that Plaintiffs would have to re- file their motion to compel arbitration before the Court could consider it. Doc. 33-2 at 2. However, neither of these reasons are legally legitimate excuses for not responding to Plaintiffs' motion to compel arbitration:

         First, Defendants misunderstand the federal procedural rules with regard to tolling of the time period for the filing of responsive pleadings. Rule 12(b) states that “[a] motion asserting [12b] defenses (such as lack of jurisdiction) must be made before pleading if a responsive pleading is allowed.” However, a “motion” is not a pleading. Fed.R.Civ.P. 7(a) lists the documents which constitute a “pleading”:

(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a ...

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