3:24-cv-00943
M.D. Fla.
Apr 14, 2025

SAUER CONSTRUCTION, LLC, Plaintiff, v. UNITED STRUCTURES OF GEORGIA, LLC, WESETERN SUERTY COMPANY and GREAT MIDWEST INSURANCE COMPANY, Defendants.

Case No.: 3:24-cv-943-WWB-PDB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

April 14, 2025

ORDER

THIS CAUSE is before the Court on Sauer Construction, LLC‘s (“Sauer“) Motion to Dismiss Counts Four and Five of the Amended Counterclaim (Doc. 46). Therein, Sauer argues that Counts IV and V of United Structures of Georgia, LLC‘s Amended Counterclaim (Doc. 42 at 12-21) should be dismissed pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) for failure to state a claim.

Pursuant to Rule 12(b), motions asserting any of the defenses listed in Rule 12(b)(1) through (7) “must be made before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b). Once an answer to a complaint is filed, any Rule 12(b) motion to dismiss is rendered a nullity. Leonard v. Enter. Rent a Car, 279 F.3d 967, 971 n.6 (11th Cir. 2002) (“After answering the complaint, the defendants filed Rule 12(b)(6) motions to dismiss the plaintiffs’ claims. Under Rule 12(b), these motions were a nullity; by filing an answer, the defendants had eschewed the option of asserting by motion that the complaint failed to state a claim for relief.“); see also Doolin v. Borg Warner Corp., No. 3:16-cv-778-J, 2017 WL 10841697, at *1-2 (M.D. Fla. Oct. 17, 2017).

Sauer filed an Answer and Affirmative Defenses to the Amended Counterclaim (Doc. 44). Therefore, any motion to dismiss pursuant to Rule 12(b)(6) is improper and Sauer‘s Motion will be denied as moot.

Accordingly, it is ORDERED and ADJUDGED that Sauer‘s Motion to Dismiss Counts Four and Five of the Amended Counterclaim (Doc. 46) is DENIED as moot. On or before April 21, 2025, Sauer may file an amended answer to substantively respond to Counts IV and V.

DONE AND ORDERED in Jacksonville, Florida on April 14, 2025.

WENDY W. BERGER

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

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