General Mills v. Kraft Foods (Fed. Cir. 2007)
On petition for rehearing, the CAFC panel clarified its holding that a defendant’s filing of a motion dismiss does not toll the deadline for filing an answer or counterclaim to an amended complaint unless the motion to dismiss is filed before the date that the original answer would have been due.
Under the Federal Rules of Civil Procedure, a response to an amended complaint is governed by Rule 15, that does not provide for tolling. The tolling section (Rule 12(b)(4)) only applies to timing of responses filed under Rule 12 – such as answering an original complaint.
Because Rule 15 allows a response to an amended complaint either within 10 days or within the time for responding to the original complaint, the due date for responding will be tolled if the motion to dismiss is filed before the original answer would have been due.
Practice Tip: The court has discretion to push-back the response due date. If you are filing a motion to dismiss an amended complaint, first request that the date be tolled.
- Discussion of the original CAFC Opinion.
- Crafty lawyers may now choose to file amended complaints to trip-up their opponents. . .
- This is now a case begging for a student law review article or note.