Opinion

Harrington v. Veritext, LLC

Court
District Court, S.D. Florida
Filed
Jan 29, 2025
Cited by
0 cases
Authority
More cited than 33.8%

noting that “Rule 11 applies to pro se plaintiffs”

How later courts described this case

  • noting that “Rule 11 applies to pro se plaintiffs”
  • noting that a non-dispositive matter is one that does not “dispose[] of a claim or defense of any party”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-CV-22787-MOORE/Elfenbein

JONATHAN HARRINGTON,

Plaintiff,

v.

VERITEXT, LLC,

Defendant.

_________________________________/

ORDER ON PLAINTIFF’S MOTION TO COMPEL ANSWER

THIS CAUSE is before the Court on pro se Plaintiff Jonathan Harrington’s (“Plaintiff”)

Motion to Compel Defendant’s Answer1 (the “Second Motion to Compel Answer”), ECF No. [95]

at 1, 4, 10. The Honorable K. Michael Moore referred this case to me “to take all necessary and

proper action as required by law regarding all pre-trial, non-dispositive matters and for a Report

and Recommendation on any dispositive matters.” ECF No. [6]. For the reasons explained below,

it is ORDERED and ADJUDGED that the Second Motion to Compel Answer, ECF No. [95], is

DENIED.2

I. BACKGROUND

On June 10, 2024, Plaintiff filed a state-court action against Defendant Veritext, LLC

1 In ECF No. [95], Plaintiff filed both a Response to Defendant’s Motion to Dismiss and a Motion to

Compel Defendant’s Answer. This Order addresses only the request for relief within ECF No. [95] —

Plaintiff’s request for an order compelling Defendant to file an answer — and does not address the merits

of the pending Motion to Dismiss, see ECF No. [93]. The undersigned will issue a separate report and

recommendation on the pending Motion to Dismiss, ECF No. [93], in due course.

2 Because the Second Motion to Compel involves a non-dispositive matter, I resolve it with an Order instead

of a Report and Recommendation. See, e.g., Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th

Cir. 2007) (noting that a non-dispositive matter is one that does not “dispose[] of a claim or defense of any

party”).

(“Defendant”) in the Eleventh Judicial Circuit Court in and for Miami-Dade County, Florida. See

ECF No. [1-2]. Plaintiff’s state court complaint sought $500,000,000 in damages in connection

with a transcript Defendant produced of a Florida Board of Bar Examiners hearing that occurred

in Miami-Dade County. See ECF No. [1-2] at 2, 31. About six weeks later, on July 22, 2024,

Defendant removed Plaintiff’s state-court action to this Court based on diversity of citizenship.

See ECF No. [1].

Sometime thereafter, Plaintiff filed a Motion to Compel an Answer (the “First Motion to

Compel Answer”), ECF No. [15] at 1. In the First Motion to Compel Answer, Plaintiff argued

that Defendant was required to answer his Complaint and asked the Court to compel Defendant to

do so. See ECF No. [15] at 1–2. The Court denied the First Motion to Compel Answer because

Defendant timely filed its Motion to Dismiss the Complaint instead of filing an answer, as it was

permitted to do by Federal Rule of Civil Procedure 81(c). See ECF No. [30] at 4–5.

About three months later — after Plaintiff filed an Amended Complaint, ECF No. [92],

and Defendant filed a Motion to Dismiss the Amended Complaint, ECF No. [93] — Plaintiff filed

the Second Motion to Compel Answer, ECF No. [95] at 1, 4, 10. In the Second Motion to Compel

Answer, Plaintiff now asks the Court to compel Defendant to answer the Amended Complaint

because “there is no timely filed motion tolling the responsive deadline and because the delay in

raising [its] objections wastes judicial resources and prejudices Plaintiff.” ECF No. [95] at 4.

In response to Plaintiff’s Second Motion to Compel Answer, Defendant argues that “the

Federal Rules of Civil Procedure do not require” it “to file an answer while” its current Motion to

Dismiss, ECF No. [93], “is pending” — a fact that Plaintiff, “a recent law school graduate” would

know. See ECF No. [118] at 1. Plaintiff did not file a reply, and the time to file one has passed.

As a result, the Second Motion to Compel Answer is also now ripe for decision.

II. LEGAL STANDARDS

After a state-court action is removed to federal court, the Federal Rules of Civil Procedure

apply. See Fed. R. Civ. P. 81(c)(1). That includes Rule 12, which explains to litigants when and

how to present defenses and objections. See Fed. R. Civ. P. 12 (containing as part of its title the

phrase “Defenses and Objections: When and How Presented”). Rule 12 allows litigants to present

defenses and objections in several ways, including through a responsive pleading like an answer,

see Fed. R. Civ. P. 12(a)(1)–(3), (b), (h)(1)(B)(ii), (h)(2)(A), and through a motion, see Fed. R.

Civ. P. 12(b)–(g), (h)(1)(A), (h)(2)(B).

Indeed, Rule 12(b)(6) specifically allows litigants to assert the defense of failure to state a

claim upon which relief can be granted “by motion.” See Fed. R. Civ. P. 12(b)(6). If a party wants

to file a “motion asserting” that defense, that motion “must be made before pleading if a responsive

pleading is allowed.” Id. A complaint is a pleading for which a responsive pleading is allowed,

and an answer is that responsive pleading. See, e.g., Fed. R. Civ. P. 12(a)(1) (recognizing

implicitly, while explaining how much time a party has to serve “a responsive pleading,” that an

answer is the responsive pleading for a “summons and complaint”); Skrtich v. Thornton, 280 F.3d

1295, 1305–06 (11th Cir. 2002) (recognizing an answer as a responsive pleading to a complaint),

overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009); Vital Pharms., Inc. v.

Alfieri, 576 F. Supp. 3d 1150, 1154 (S.D. Fla. 2021) (same).

III. DISCUSSION

As noted above, in the Second Motion to Compel Answer, Plaintiff asks the Court to

compel Defendant to answer the Amended Complaint because “there is no timely filed motion

tolling the responsive deadline.” See ECF No. [95] at 4. But as Defendant notes in its Response,

it timely filed its Motion to Dismiss the day after Plaintiff filed the Amended Complaint. See ECF

CASE NO. 24-CV-22787-MOORE/Elfenbein

No. [118] at 1; ECF No. [93]. Defendant also correctly notes that the Federal Rules of Civil

Procedure — which apply to removed actions, specifically Rule 81(c)(1) — do not require an

answer while a timely motion to dismiss is pending. See ECF No. [118] at 1; Fed. R. Civ. P.

12(a)(1)-(3), (b)-(h). The Court agrees with Defendant.

Reading Rule 12 comprehensively, it is clear that a litigant who wishes to assert by motion

the defense of failure to state a claim upon which relief can be granted must file any such motion

before (or instead of) filing an answer. See Fed. R. Civ. P. 12(b)(6); Fed. R. Civ. P. 12(a)(1);

Skrtich, 280 F.3d at 1305-06; Alfieri, 576 F. Supp. 3d at 1154. As was true in the context of the

First Motion to Compel Answer, see ECF No. [30] at 4-5, Defendant did exactly that here: it

timely filed its Motion to Dismiss the Amended Complaint asserting a Rule 12(b)(6) defense

instead of filing an answer, see ECF No. [93].

IV. CONCLUSION

Accordingly, like Plaintiff's First Motion to Compel Answer, see ECF No. [30] at 4-5,

Plaintiff's Second Motion to Compel Answer, see ECF No. [95] at 1, 4, 10, is DENIED.

DONE and ORDERED in Chambers in Miami, Florida on January 29, 2025.

+> i.

MARTY FULGUEIRA ELFENBEIN

UNITED STATES MAGISTRATE JUDGE

? The Court also agrees with Defendant that Plaintiff, a recent honors graduate of a premier law school,

would know that a party is allowed to file a motion to dismiss instead of an answer. See ECF No. [118] at

1. The Court does not view Plaintiffs contention that Defendant somehow waived its right to file a motion

to dismiss by choosing not to object to the Report and Recommendation that Plaintiff's motion to amend

the complaint be granted as a “good faith argument for the extension or modification” of existing law. See

Hatteras of Lauderdale, Inc. v. Gemini Lady, 853 F.2d 848, 852 (11th Cir. 1988); cf Fla. R. Pro. Conduct

(“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless

there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for

an extension, modification, or reversal of existing law.”). As such, the Court warns Plaintiff that any similar

future contentions may be deemed frivolous and expose him to sanctions. See, e.g., Harris v. Heinrich,

919 F.2d 1515, 1516 (11th Cir. 1990) (noting that “Rule 11 applies to pro se plaintiffs”); Makere v.

Fitzpatrick, No. 23-11231, 2024 WL 2152114, at *3 (11th Cir. May 14, 2024) (same).

cc: All Counsel of Record

Jonathan Harrington

1701 S.W. 15th Court

Fort Lauderdale, FL 33311

PRO SE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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