KaaBooWorks Services, LLC v. Pilsl

          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. ...