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Tolling Considerations When Filing a Partial Motion to Dismiss

Federal Rule of Civil Procedure 12(a) requires a defendant to serve an answer “within 21 days after being served with the summons and complaint.” The time for serving an answer changes if a defendant serves a motion under Rule 12. In that case, “if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action . . . .” Fed. R. Civ. P. 12(a)(4)(A).

The question then arises whether a Rule 12(b) motion to dismiss directed at only a portion of the complaint still tolls the time for answering the entire complaint, or whether the movant must still respond to the portion of the complaint of which the motion was not directed. See Gerlach v. Michigan Bell Tel. Co., 448 F. Supp. 1168, 1174 (E.D. Mich. 1978) (“F.R.C.P. 12 does not explicitly address the issue of whether the filing of a motion under F.R.C.P. 12(b) also alters the time within which the moving party must respond to claims in the complaint not addressed in the motion.”).

At least one court has ruled that because “[s]eparate counts are, by definition, independent bases for a lawsuit . . . the parties are responsible to proceed with litigation on those counts which are not challenged by a motion under F.R.C.P. 12(b).” Gerlach, 448 F. Supp. at 1174.

However, “the weight of the limited authority on this point is to the effect that the filing of a motion that only addresses part of a complaint suspends the time to respond to the entire complaint, not just to the claims that are the subject of the motion.” 5B Charles Wright et al., Fed. Prac. & Proc. Civ. § 1346 (3d ed. 2019 update); see also Beaulieu v. Bd. of Trustees of Univ. of W. Fla., No. 3:07CV30 RVEMT, 2007 WL 2020161, at *2 (N.D. Fla. July 9, 2007) (collecting cases for the same proposition).This is because “the minority approach would require duplicative sets of pleadings in the event that the Rule 12(b) motion is denied and cause confusion over the proper scope of discovery during the motion’s pendency.” Id.

With these considerations in mind, litigants who are responding to or filing a partial motion to dismiss should review the applicable jurisdiction’s caselaw to determine whether there is controlling authority on this issue before assuming that filing the partial motion to dismiss automatically tolls the time to file an answer to the entire complaint.