Bryant v. Griffin et al

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JOE N. BRYANT, III 	PLAINTIFF/COUNTER
DEFENDANT
v. 	No. 4:24-cv-491-DPM
LESTER GRIFFIN and GRIFFIN
PLANTING CO., INC.
v.
BROWN PELICAN FARMS, LLC
ORDER
DEFENDANTS
DEFENDANT/COUNTER
CLAIMANT
The parties are at odds over pleading niceties. 	In a composite
paper, 	Bryant 	answered 	Brown Pelican's 	amended 	counterclaims,
moved to dismiss them for failing to state claims, asserted affirmative
defenses (including all his Rule 12(b) defenses), and responded to what
Bryant believed was Brown Pelican's 12(b)(6) motion to dismiss his first
amended complaint. 	In response, Brown Pelican has moved to strike
the motion to dismiss embedded in Bryant's pleading.
Brown Pelican is correct: 	Bryant did not follow the best practice
here. 	A motion is not a pleading or a proper part of a pleading.
But 	stretching 	preservation 	of 	an 	affirmative 	defense 	into 	a
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quasi-motion to dismiss in an answer is fairly common.
Consider 	Brown 	Pelican's 	last 	pleading. 	"Brown 	Pelican
affirmatively states that the First Amended Complaint fails to state a
claim 	upon 	which 	relief 	may 	be 	granted 	and, 	therefore, 	must 	be
dismissed 	pursuant 	to Rule 12(b)(6) of the Federal Rules of Civil
Procedure." 	Doc. 40 at ,r 78. 	Unlike Bryant, Brown Pelican didn't
include a "Motion to Dismiss" heading or say it "moves" to dismiss
Bryant's complaint. 	Compare Doc. 43 at 8. 	But Brown Pelican went
beyond what was 	required for preservation - it specified the relief
sought. 	Though less than a full-throated motion, this was more than
was 	necessary 	to 	avoid 	waiving 	the 	defense. 	Bryant 	read 	it as
motion-ish, and, to be cautious, responded in a sentence. 	Doc. 43 at 9.
A motion to strike is too big a gun to use against Bryant's errant
paragraph 74. 	A call or an email to counsel opposite confirming that
these words were all about preservation should have been sufficient.
If 	this 	was 	done, 	but bore 	no 	fruit, 	that would 	be 	disappointing.
If 	necessary, 	a 	precautionary 	response 	would 	have 	been 	fine.
Instead, 	the Court has received eighteen pages 	of argument about
all this.
The Court construes both sides' papers as preserving the 12(b)(6)
defense, nothing more. 	That's the substance. Motion to strike, Doc. 46,
denied. Please focus on the merits.
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So Ordered.
D .P. Marshall Jr.
United States District Judge
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