United States District Court, D. Colorado
ORDER
Kristen L. Mix, United States Magistrate Judge.
ENTERED
BY MAGISTRATE JUDGE KRISTEN L. MIX
This
matter is before the Court on Plaintiff's Motion
to Strike, or in the Alternative Dismiss,
Counter-Complaint [#110][1] (the “Motion”).
Defendant filed a Response [#112] in opposition to the Motion
[#110], and Plaintiff filed a Reply [#117]. The Court has
reviewed the Motion, Response, Reply, the entire case file,
and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Motion [#110]
is DENIED in part, to the extent Plaintiff
seeks to strike Defendant's counterclaims.[2] The Court is
concurrently issuing a separate Recommendation regarding the
portion of the Motion [#110] seeking dismissal of the
counterclaims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
I.
Background
As
relevant here, in the Motion [#110], Plaintiff asks the Court
to fully strike the counterclaims asserted by Defendant in
his Answer, Counterclaim[s], and Demand for Jury on
Counterclaim[s] [#109]. The sequence of events underlying the
basis for this Motion is crucial to its resolution, and the
Court therefore begins there.
On
October 23, 2017, Plaintiff initiated this lawsuit against
Defendant, who initially proceeded as a pro se litigant.
Compl. [#1]. Defendant's answer or other
response to the Complaint [#1] was originally due on November
15, 2017. Summons [#6]. Defendant's deadline to
answer or otherwise respond to the Complaint [#1] was
extended by the Court to December 22, 2017. Minute
Order [#16]. On that date, Defendant filed a Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2) and (6) [#19] (the
“Motion to Dismiss”) through his newly-acquired
counsel. On April 5, 2018, after the Motion to Dismiss [#19]
was fully briefed, Defendant's counsel was permitted to
withdraw, again leaving Defendant to proceed as a pro se
litigant. Minute Order [#59]. On July 5, 2018, the
Motion to Dismiss [#19] was granted in part and denied in
part. Order [#69]. Accordingly, Defendant's
answer or other response to the Complaint [#1] was due to be
filed by July 19, 2018. Fed.R.Civ.P. 12(a)(4)(A) (“[I]f
the court denies the [Rule 12] motion . . ., the responsive
pleading must be served within 14 days after notice of the
court's action . . . .”). Defendant did not meet
this deadline, and Plaintiff did not file any motion
regarding Defendant's failure to do so. However, on
August 1, 2018, Plaintiff filed an opposed Motion for Leave
to Amend Complaint and to Amend Scheduling Order [#71] (the
“Motion to Amend”). On October 19, 2018, the
Court partly granted the Motion to Amend [#71], including, in
relevant part, extending the deadline for joinder of parties
and amendment of pleadings to August 1, 2018 (the date the
Motion to Amend [#71] was filed), and permitting the filing
of Plaintiff's Amended Complaint [#88]. Order
[#87]. Defendant's answer or other response to the
Amended Complaint [#88] was therefore due by November 2,
2018. Fed.R.Civ.P. 15(a)(3) (“Unless the court orders
otherwise, any required response to an amended pleading must
be made . . . within 14 days after service of the amended
pleading . . . .”). Defendant did not meet this
deadline.
On
December 11, 2018, Defendant filed a Motion for Extension of
Time to Answer, Plead or Otherwise Respond to Plaintiff's
Amended Complaint for Injunctive Relief and Damages [#102].
In part, he noted that he was distracted in October 2018 by
Plaintiff's Motion for Preliminary Injunction (filed
October 4), his need to prepare and file an opposition to
that motion (filed October 15), and the October 30 hearing on
the motion which happened twelve days after the Amended
Complaint [#88] was accepted for filing. See [#102]
at 1-2. Defendant also stated:
I have been searching for an attorney who can assist me in
this litigation. It was only during this process did I learn
that I was required to answer, plead or otherwise respond to
the amended complaint. Once I realized this, I notified
Plaintiff by email immediately asking if they would oppose an
extension to December 14. While trying to prepare my answer,
I am realizing that this is not nearly enough time for me to
properly prepare.
[#102] at 2.
Two
days later, on December 13, 2018, before the Court ruled on
Defendant's extension request, the parties filed a Joint
Motion to Reschedule the Pretrial Conference [#105]. In part,
the parties stated:
The Amended Complaint was entered by the Court on October 19,
2018, and Mr. Pilsl has not yet filed an answer to this
operative pleading. Mr. Pilsl recently requested an extension
of the answer deadline up to and including January 8, 2019 so
that he can try to obtain counsel in this action prior to
submitting his answer. Defendant has never filed an answer to
either the original complaint or amended complaint. Thus, at
this time, KAABOO would be prejudiced in drafting a proposed
pretrial order because it cannot determine the specific
denials and defenses Mr. Pilsl will assert to its Amended
Complaint.
[#105] at 1-2 (internal citations omitted). Plaintiff did not
state at that time any opposition to Defendant's
requested extension of the answer deadline. See Id.
On December 14, 2018, the Court reset the Final Pretrial
Conference, see Minute Order [#108], and extended
Defendant's deadline to answer or otherwise respond to
the Amended Complaint [#88] to January 8, 2019, see
Minute Order [#107].[3] On January 8, 2019, Defendant, through
his newly-acquired counsel, filed his Answer,
Counterclaim[s], and Demand for Jury on Counterclaim[s]
[#109].
On
January 29, 2019, Plaintiff filed the present Motion [#110]
seeking to strike the Defendant's counterclaims. The four
counterclaims are: (1) breach of contract, (2) quantum
meruit, (3) fraud in the inducement, and (4) bad faith
pursuant to Colo. Rev. Stat. § 7-74-105. See
[#109] at 13-18.
II.
...