The Federal Circuit today held that a defendant abandons its counterclaim if it moves to dismiss under Rule 12(b)(6) without reasserting the counterclaim.  The court didn’t explain why a dismissal motion tolls the time for answering and counterclaiming in the context of a motion to dismiss an original complaint but not a later one.  General Mills, Inc. v. Kraft Foods Global, Inc., No. 06-1569 (Fed. Cir. May 16, 2007).

Did the drafters of the Federal Rules of Civil Procedure really intend that a defendant moving to dismiss a second or third complaint loses its right to answer and counterclaim after decision of the motion?  Count Blawgletter dubious.

Update:  Blawgletter has slogged back through the rules and believes we’ve found the source of the problem.  The defendant, Kraft, denominated its motion as one to dismiss under Rule 12(b)(6) instead of one for judgment on the pleadings under Rule 12(c).  Rule 12(c) gives a party the option, "[a]fter the pleadings are closed", to move for judgment.  Kraft moved to dismiss before the pleadings closed.  If it had waited a few days and invoked Rule 12(c) instead of 12(b)(6), Rule 12(a)(4)(A) would have allowed it to answer and counterclaim within 10 days after notice of the court’s denial of its motion.

The court’s construction of the rules strikes Blawgletter as hypertechnical and possibly unjust.  Most judges would let the defendant off the hook in these circumstances for missing the deadline.  But this one didn’t.  So watch out.

Barry Barnett

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