Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02313-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-2313-JLK-CBS GLN COMPLIANCE, INC., Plaintiff, v. UNITED AIRLINES, INC, d/b/a UNITED BIZJET HOLDINGS, BIZJET CHARTERS, INC., AND BIZJET SERVICES, INC., and JONATHAN ROSS, Defendants.

DEFENDANT JONATHAN ROSS'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT

Defendant Jonathan Ross ("Ross"), through his undersigned counsel, hereby submits the following Response in Opposition to Plaintiff, GLN Compliance Group, Inc.'s ("GLN") Motion for Entry of Default and in support thereof states: 1. GLN's Application for Entry of Default is unfounded and should be denied. In

accordance with Fed.R.Civ.P. 12(a)(4), Ross's responsive pleading is not due until the Court rules on Ross's pending Motion to Dismiss for Improper Venue, or Alternatively to Transfer Venue and Motion to Dismiss Outrageous Conduct Claim ("Motion to Dismiss") (Docket # 89). 2. Rule 12(a) provides in relevant part:

(4) Unless a different time is fixed by court order, the service of a motion permitted under this rule alters these periods of time as follows: (A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after notice of the court's action;..." Fed.R.Civ.P. 12(a)(4).

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3.

Federal courts interpreting this Rule are in accord -- no responsive pleading is

required until the Court rules on a pending motion to dismiss. Ashby v. McKenna, 331 F. 3d 1148, 1151-1152 (10th Cir. 2003) (due to pending motion to dismiss, defendant did not have an obligation to file an answer and an entry of default for defendant's failure to answer would have been incorrect as a matter of law); Sunshine Kitchens, Inc. v. Alanthus Corporation, 66 F.R.D. 15, 17 (S.D.Fla. 1975) (motion for entry of default against defendant is not warranted as no responsive pleading is due until the court disposes of pending motion to dismiss); Wickstrom v. Ebert, 101 F.R.D. 26, 33 (E.D. Wis. 1984) (challenges to service, venue and the sufficiency of the complaint preclude a default even if pursued in the absence of a responsive pleading) (citing 10 Wright & Miller, Federal Practice and Procedure § 2682 at 409-410 (2d ed. 1983)). 4. Ross's timely filing of his Motion to Dismiss suspended the time for Ross to file an

answer to GLN's First Amended Complaint notwithstanding that Ross's Motion to Dismiss contained an alternative request for a transfer of venue pursuant to 28 U.S.C § 1404(a). Finnegan v. University of Rochester Medical Center, 180 F.R.D. 247, 249 (W.D.N.Y. 1998) (pending partial motion to dismiss suspends time for defendant to file an answer.) 5. As set forth more fully in Ross's Motion to Dismiss and Reply in support thereof

(Docket #97), Ross's Motion to Dismiss for improper venue is proper because Ross immediately raised the defense of improper venue when it first became "available," upon the issuance of the Court's October 16, 2007 Order (Docket # 87) dismissing the various United defendants from this action. Fed.R.Civ.P. 12(g). Both the plain language of Rule 12(g) and the federal courts' interpretation of that rule provide that a party cannot be deemed to have waived a defense that was not "then available" to the party, when the party makes its first defensive move. See Motion to Dismiss and Reply in support thereof (Docket #s 89 and 97); Holzsager v. Valley Hospital,

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646 F.2d 792, 795-796 (2d Cir. 1981) (determining that defendant Valley Hospital did not waive its defense of lack of personal jurisdiction by seeking removal of the case to federal court and by earlier seeking dismissal of the case on other grounds and stating, "[i]n any event a party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made, especially when it does raise the objections as soon as their cognizability is made apparent."); Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983) (finding that defendant Eli Lilly & Co. did not waive its defense of lack of personal jurisdiction by failing to raise it in its answer because "[i]t could not waive a defense involving facts of which it was not, and could not have been expected to have been, aware"). 6. GLN neither addresses nor acknowledges the Rule 12(g) exception to the waiver

rule in its Application for Entry of Default. But this exception is clearly stated in applicable case law ­ even in those cases GLN cited in support of its Motion for Entry of Default. See T&R Enter., Inc. v. Continental Grain Co., 613 F.2d 1272, 1277 (5th Cir. 1980) (Rule 12(g) provides "if a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted."). (Emphasis supplied). Because the exception regarding the "then available" defense is clearly applicable to these facts, Ross cannot be deemed to have waived this defense. Id. 7. Because Ross timely filed his Motion to Dismiss for improper venue when that

defense first became "available," Ross's time for filing an answer to GLN's First Amended Complaint is suspended in accordance with Rule 12(a)(4)(A) (service of a motion under Rule 12 suspends time for filing responsive pleading until 10 days after the court denies the motion or

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notifies the parties that court is postponing disposition of the motion); Ashby, 331 F. 3d at 11511152; Sunshine Kitchens, Inc., 66 F.R.D. at 17; Wickstrom, 101 F.R.D. at 33. WHEREFORE, based on the foregoing Response, the Motion to Dismiss For Improper Venue, Or, Alternatively, To Transfer Venue And Motion To Dismiss Outrageous Conduct Claim, and the Reply in support thereof, defendant Jonathan Ross respectfully requests that the Court dismiss GLN Compliance Group, Inc.'s Application for Entry of Default and for such other and further relief as the Court deems just and proper under the circumstances. RESPECTFULLY submitted this 10th day of December, 2007. KAMLET SHEPHERD & REICHERT, LLP

Amy E. Arlander___________________ Stephen D. Gurr, No. 19789 Amy E. Arlander, No. 33200 Kamlet Shepherd & Reichert, LLP 1515 Arapahoe Tower One, Suite 1600 Denver, CO 80202 Attorneys for Defendant Jonathan Ross

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 10th day of December, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to: Mark T. Barnes, Esq. Brownstein Hyatt & Farber, P.C. 410 17th Street, 22nd Floor Denver, CO 80202 Telephone: 303-223-1100 Fax: 303-223-1111 E-mail: [email protected] Michah E. Marcus, Esq. Kirkland & Ellis LLP 200 E. Randolph Drive Chicago, IL 60601 Telephone: 312-861-2165 Fax: 312-861-2200 E-mail: [email protected] Elizabeth A. Starrs Daniel A. Wartell STARRS MIHM & CASCHETTE LLP 707 Seventeenth Street, Suite 2600 Denver, CO 80202 Telephone: 303-592-5900 Fax: 303-592-5910 E-mail: [email protected] [email protected]

/s/ Diana Brechtel

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