Filing motion to dismiss amended complaint does not necessarily toll time to file answer
August 01, 2007

In an interesting decision yesterday, the Federal Circuit addressed an unusual procedural issue: does filing a motion to dismiss toll the time to respond to an amended complaint? The answer, according to the court, is yes, as long as the time to respond to the original complaint has not yet elapsed. Otherwise, as the defendant here found out, an answer must be filed within 10 days, rather than 10 days after the motion is decided.

Ordinarily, because of Rule 12(a)(4), filing a motion under Rule 12 tolls the time to respond to a complaint until 10 days after the motion is decided. However, the court noted that the express language of the Rule is limited to "these periods of time," meaning the periods of time permitted to file an answer in Rule 12(a), which include only (1) 20 days after service of summons and complaint, (2) 60 (or 90) days after a request for waiver of service is sent, or (3) 60 days after service on the United States or its officers, agencies, or employees.

The time to respond to an amended complaint is found in Rule 15(a), which provides that:

A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

Ordinarily, when a motion to dismiss is filed, the time for responding to the original complaint will not have elapsed. In such a case, filing another Rule 12 motion in response to an amended complaint makes the answer due "within the time remaining for response to the original pleading." However, in this case, the original complaint had already been answered (and the time to answer had apparently passed), so when the amended complaint was filed, Kraft had only the 10 days provided by Rule 15(a) to respond, even though Kraft successfully moved to dismiss the complaint.

This case illustrates how important a careful reading of the applicable Rules are to a case, as because Kraft did not answer the amended complaint, its counterclaims that it asserted in the original answer were no longer pending. As a result, if Kraft wishes to pursue its counterclaims at this point, it must file a new action to do so, rather than proceeding in the same lawsuit.

To read the full decision in General Mills, Inc. v. Kraft Foods Global, Inc., click here.

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