United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's Motion to
Dismiss Defendant Chase Bank's Counterclaims (Doc. No.
78); Defendant Chase Bank's Motion to Strike
Plaintiff's Motion to Dismiss (Doc. No. 79); and
Plaintiff's Motion for Leave to File Motion to Dismiss
Out of Time or Alternatively to Convert to a Motion for
Judgment on the Pleadings (Doc. No. 83).
11, 2018, Plaintiff filed this action against
Chase for violations of the Fair Credit
Reporting Act in the Circuit Court of St. Louis County. The
case was removed to this Court on June 13, 2018. (Doc. No.
1). Pursuant to the Case Management Order issued on November
30, 2018, the deadline for joining parties or amending
pleadings was January 4, 2019. (Doc. No. 56). On January 3,
2019, Chase sought leave to file a counterclaim against
Plaintiff for breach of contract, suit on account, and unjust
enrichment. (Doc. No. 62). On January 4, 2019, the Court
ordered Plaintiff to file any response to Chase's motion
no later than January 8, 2019. (Doc. No. 63). Also on January
4, 2019, Plaintiff moved for leave to amend his complaint to
remove those Defendants dismissed from the case. (Doc. No.
64). Plaintiff did not respond to Chase's motion for
leave to file a counterclaim and the Court granted
Chase's motion. (Doc. No. 65). On January 16, 2019, Chase
filed its counterclaim and Plaintiff filed his First Amended
Complaint. (Doc. Nos. 66, 67). Plaintiff filed his answer and
affirmative defenses to Chase's counterclaim on January
23, 2019. (Doc. No. 68). Chase filed its answer to
Plaintiff's First Amended Complaint on January 28, 2019.
(Doc. No. 69).
February 26, 2019, Plaintiff moved to dismiss Chase's
counterclaims pursuant to Fed.R.Civ.P. 12(b)(1), (6). He
argues the Court lacks supplemental jurisdiction over
Chase's counterclaims because they do not arise from the
same case or controversy as the instant case brought under
the Fair Credit Reporting Act. (Doc. No. 78 at 4-6).
Plaintiff also argues that Chase's counterclaims are
time-barred because they were brought more than three years
after the date of the last payment and past Delaware's
statute of limitations. (Id. at 6-8). In support of
his motion to dismiss, Plaintiff submits a copy of
Chase's responses to Plaintiff's interrogatories
indicating that the last payment on the account at issue was
September 4, 2015 and that the account was closed on November
5, 2015. (Doc. No. 78-1).
has moved to strike Plaintiff's motion to dismiss as
untimely and because it relies on documents outside the
pleadings, namely interrogatory answers that Chase provided
in discovery. (Doc. No. 79 at 4-6). Alternatively, Chase
requests the Court convert Plaintiff's motion to a motion
for summary judgment and grant it leave to file an
opposition. (Id. at 7). In reply, Plaintiff argues
that the delay in filing his motion to dismiss was due to
Chase's delay in answering his discovery, and that as
long as the defense of failure to state a claim has been
asserted in the answer, courts routinely consider post-answer
motions raising the defense - although technically they are
no longer Rule 12(b) motions. (Doc. No. 82 at 3-4).
Alternatively, Plaintiff requests leave to file his motion to
dismiss out of time or convert it into a motion for judgment
on the pleadings. (Doc. No. 83).
12(b) motion technically cannot be filed after an answer has
been submitted. See Fed. R. Civ. P. 12(b) (“A
motion asserting any of these defenses must be made before
pleading if a further pleading is permitted.”); see
also Sletten & Brettin Orthodontics, LLC v. Continental
Cas. Co., 782 F.3d 931, 934 n. 2 (8th Cir. 2015).
Although the rules prevent Plaintiff from filing a Rule 12(b)
motion at this time, it does not follow that he has waived
his ability to challenge either this Court's subject
matter jurisdiction or the sufficiency of the complaint.
Indeed, the Court is required to dismiss if “at any
time” it determines that subject matter jurisdiction is
lacking. Fed. R. Civ .P. 12(h)(3). Also, a defense of failure
to state a claim upon which relief can be granted may be
raised in a motion for judgment on the pleadings under Rule
12(c), even after an answer has been filed. The Court will,
therefore, treat Plaintiff's motion as if it were based
on Rules 12(h)(3) and 12(c), as opposed to Rules 12(b)(1) and
12(b)(6). See Westcott v. City of Omaha,
901 F.2d 1486, 1488 (8th Cir. 1990). Because Chase elected to
file a motion to strike Plaintiff's motion rather than
address its merits, the Court will grant Chase leave to file
a response to Plaintiff's motion, which the Court is
construing as a motion for judgment on the pleadings.
IT IS HEREBY ORDERED that Defendant Chase
Bank's Motion to Strike Plaintiffs Motion to Dismiss 
IS FURTHER ORDERED that Plaintiffs Motion for Leave
to File Motion to Dismiss Out of Time or Alternatively to
Convert to a Motion for Judgment on the Pleadings  is
GRANTED in part and DENIED
IS FINALLY ORDERED that Defendant Chase Bank shall
within fourteen (14) days of the date of this Order, file its
response to Plaintiffs Motion to Dismiss Defendant Chase
Bank's Counterclaims, construed as a motion for judgment
on the pleadings.
Defendants Bank of America, N.A., Verizon Wireless LLC, Trans
Union, LLC, Experian Information Solutions, Equifax
Information Services, LLC, and Barclays Bank Delaware have
been dismissed from the ...