BTL INDUSTRIES INC v. REJUVA FRESH LLC

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BTL INDUSTRIES, INC., 	)
)
Plaintiff 	)
)
v. 	) 	No. 1:23-cv-00032-LEW
)
REJUVA FRESH LLC et al., 	)
)
Defendants 	)
RECOMMENDED DECISION ON MOTION FOR PARTIAL DEFAULT1
BTL Industries, Inc., moves for the entry of a partial default on the basis that
Rejuva Fresh LLC has failed to timely respond to Counts VI-IX of BTL’s complaint
(ECF 	No. 	16). 	See 	Motion 	for 	Entry 	of 	Partial 	Default 	(ECF 	No. 	22);
Fed. R. Civ. P. 55(a). 	Rejuva Fresh opposes the motion, arguing that its partial
motion to dismiss (ECF No. 19) automatically tolled the answer deadline for the
claims 	not 	subject 	to 	its 	motion 	to 	dismiss. 	See 	Opposition 	(ECF 	No. 	23);
Fed. R. Civ. P. 12(a)(4)(A). 	BTL disagrees and argues that Rejuva Fresh’s delay in
answering 	is 	causing 	BTL 	ongoing 	harm 	and 	needlessly 	delaying 	discovery.
See Reply (ECF No. 25).
Under “modern procedure, defaults are not favored by the law and any doubts
usually will be resolved in favor of the defaulting party.” Widi v. U.S. Dep’t of Just.,
No. 1:11-cv-00113-JAW, 2013 WL 503090, at *1 (D. Me. Feb. 11, 2013) (cleaned up).
1 Authority is somewhat mixed on whether a motion for default is dispositive. See Ohai v. Delta Cmty.
Credit Union, No. 1:20-cv-02220-SCJ-AJB, 2020 WL 10227662, at *1 n.1 (N.D. Ga. Dec. 15, 2020)
(rec. dec.) (collecting cases), aff’d, 2021 WL 2679033 (N.D. Ga. Jan. 13, 2021). As such, I have erred
on the side of making a recommended decision.
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Thus, although it “is unclear from the language of Rule 12(a) whether service of a
Rule 12(b) motion directed at only parts of a [complaint] enlarges the period of time
for answering the remaining portions of the [complaint],” the “majority rule” is that
a partial motion to dismiss “suspends the time to respond to the entire complaint, not
just to the claims that are the subject of the motion.” 	5B Arthur R. Miller et al.,
Federal Practice and Procedure § 1346, Westlaw (database updated Apr. 2023)
(collecting cases).
After considering the parties’ arguments, I see no reason to depart from the
majority rule that, under Rule 12(a), Rejuva Fresh’s partial motion to dismiss tolled
the time for it to answer the claims not subject to its motion.2 	To hold otherwise
“would require duplicative sets of pleadings in the event that the” motion to dismiss
“is denied and cause confusion over the proper scope of discovery during the motion’s
pendency.” 	Id. 	Accordingly, I recommend that the Court DENY BTL’s motion for
partial default.
NOTICE
A party may file objections to those specified portions of a Magistrate
Judge’s 	report 	or proposed 	findings 	or 	recommended 	decisions 	entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the District
Court is sought, together with a supporting memorandum, within fourteen
(14) days after being served with a copy thereof. 	A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
2 Wright & Miller identifies only one case where a court has refused to apply Rule 12(a)’s enlargement
of time in the context of a partial motion to dismiss: Gerlach v. Mich. Bell Tel. Co., 448 F. Supp. 1168,
1174 (E.D. Mich. 1978). See 5B Federal Practice and Procedure § 1346 n.17. But since “the issuance
of the Gerlach decision, no court has relied on its reasoning or followed its ruling.” Tingley Sys., Inc.
v. CSC Consulting, Inc., 152 F. Supp. 2d 95, 122 (D. Mass. 2001); see also Gruber v. Tenn. Bd. of Trs.,
No. 2:21-CV-00039, 2022 WL 256295, at *1 (M.D. Tenn. Jan. 26, 2022) (“[Gerlach] seemingly stands
alone like an Appaloosa in a herd of Thoroughbreds, and this Court declines to follow its lead.”
(cleaned up)).
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Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the District Court and to appeal the District Court’s
order.
Dated: May 23, 2023
/s/ Karen Frink Wolf
United States Magistrate Judge
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