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Boone v. Coleman

United States District Court, Seventh Circuit

December 18, 2013

MICHAEL BOONE, Plaintiff,
v.
L. COLEMAN, D. LAKER, GINA ALLEN, K. KILEY, and S.A. GODINEZ, Defendants.

ORDER

COLIN S. BRUCE, District Judge.

On May 31, 2013, Plaintiff Michael Boone filed his Second Amended Complaint (#33), naming as defendants L. Coleman, D. Laker, Gina Allen, K. Kiley, and S.A. Godinez. On July 19, 2013, Judge Michael P. McCuskey granted Defendants' Allen, Coleman, and Laker's Motion for Merit Review, or in the Alternative, Leave to File a Motion to Dismiss (#34). On August 16, 2013, Defendants Allen and Laker filed a Motion to Dismiss For Failure to State a Claim (#38) pursuant to Federal Rule of Civil Procedure 12(b)(6). In October 2013 Defendants Godinez and Kiley were served by Plaintiff. On November 26, 2013, Defendants Godinez and Kiley filed a Motion to Dismiss for Failure to State a Claim (#54) pursuant to Rule 12(b)(6).

On December 16, 2013, Plaintiff filed five separate Motions for Entry of Default against Defendants Coleman (#57), Laker (#58), Allen (#59), Kiley (#60), and Godinez (#61). The court notes that Defendant Coleman has filed no Answer or Motion in response to Plaintiff's Second Amended Complaint. Defendant Coleman is given until January 3, 2014, to file his response to Plaintiff's Motion for Entry of Default (#57). However, Defendants Laker, Allen, Kiley, and Godinez have filed Motions to Dismiss for Failure to State a Claim (#38, 54) pursuant to Rule 12(b)(6). The filing of a motion to dismiss for failure to state a claim tolls the time for a defendant to file an answer. Fed.R.Civ.P. 12(a)(4), (b); Marquez v. Cable One, Inc., 463 F.3d 1118, 1120 (10th Cir. 2006) (the filing of a Rule 12(b)(6) dismissal motion "clearly does toll the time to answer."). Therefore, Plaintiff's Motions for Entry of Default with respect to Laker, Allen, Kiley, and Godinez must be DENIED.

Plaintiff has also filed a Motion for Extension of Time to File a Response to Defendants' Motion to Dismiss (#63). This motion is GRANTED.

IT IS THEREFORE ORDERED:

(1) Defendant Coleman has until January 3, 2014, to file his response to Plaintiff's Motion for Entry of Default (#57).

(2) Plaintiff's Motions for Entry of Default (#58, 59, 60, 61) against Laker, Allen, Kiley, and Godinez are DENIED.

(3) Plaintiff's Motion for Extension of Time to File a Response to Defendants' Motion to Dismiss (#63) is GRANTED. Plaintiff has until January 3, 2014, to file his response to Defendants' Kiley and Godinez's Motion to Dismiss (#54).


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