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Filing of Motion to Dismiss Did Not Toll Time to Respond to Amended Complaint

06-1569
July 31, 2007

Decision icon Decision

Last Month at the Federal Circuit - August 2007

Judges: Bryson, Clevenger, Linn (author)

[Appealed from: D. Minn., Judge Ericksen]

In General Mills, Inc. v. Kraft Foods Global, Inc., Nos. 06-1569, -1606 (Fed. Cir. July 31, 2007), on petition for rehearing, the Federal Circuit reaffirmed, but clarified, its earlier holding that the time for answering an amended complaint was not tolled under Fed. R. Civ. P. 12(a)(4) when there was no time left to respond to the original pleading.

General Mills, Inc. (“General Mills”) served a complaint on Kraft Foods Global, Inc. (“Kraft”). Kraft answered and asserted a counterclaim. General Mills subsequently filed an amended complaint, which Kraft moved to dismiss but did not answer. The district court granted the motion to dismiss and declined to exercisejurisdiction over Kraft’s counterclaim. The district court concluded that because Kraft did not answer the amended complaint or reassert its counterclaim, the counterclaim was not pending at the time judgment was entered.

In an opinion dated May 16, 2007, the Federal Circuit affirmed, holding that Kraft’s filing of its motion to dismiss the amended complaint did not toll the time it had to answer the amended complaint. General Mills, Inc. v. Kraft Foods Global, Inc., 487 F.3d 1368 (Fed. Cir. 2007). On Kraft’s petition for rehearing, the Federal Circuit reaffirmed, but clarified, its original holding.

In its petition for rehearing, Kraft argued that the Federal Circuit’s decions undermined the “clearly expressed intent” of Rule 12 of the Federal Rules of Civil Procedure. The Federal Circuit disagreed, stating that “where the meaning of Rule 12 is unambiguous, we decline to ignore the text of the rule in service of a purported purpose.” Slip op. at 2. The Federal Circuit instead agreed with the district court, explaining that the period of time allotted to respond to an amended complaint is governed by Fed. R. Civ. P. 15(a). Fed. R. Civ. P. 15(a) states that a party must respond either within “the time remaining for the response to the original pleading,” or “within 10 days after service of the amended pleading.” Fed. R. Civ. P. 12(a)(4) alters the periods of time allotted for responses described in Fed. R. Civ. P. 12(a)(1)-(3). The periods of time described in Fed. R. Civ. P. 12(a)(1)-(3) include the period within which a party must respond to a complaint, but do not include the period within which a party must respond to an amended complaint. Therefore, if the period of time allotted to respond to an amended complaint under Fed. R. Civ. P. 15(a) is within “the time remaining for the response to the original pleading,” this time will be tolled under Fed. R. Civ. P. 12(a)(4). If, on the other hand, the period of time allotted to respond to an amended complaint is “within 10 days after service of the amended pleading,” this time will not be tolled under Fed. R. Civ. P. 12(a)(4). The Federal Circuit noted that all of the cases cited by Kraft were consistent with its holding.

In the current case, there was no “time remaining for the response to the original pleading” because Kraft had answered the complaint. Therefore, the time for response was not tolled by Fed. R. Civ. P. 12(a)(4) and Kraft was required to respond within ten days. As it failed to do so, the Federal Circuit held that it did not have a counterclaim pending when the judgment of dismissal was entered.

The Federal Circuit did agree with Kraft’s challenge to its characterization that it “abandoned” its counterclaim. The Court therefore amended its original opinion to replace the characterization that Kraft had abandoned its counterclaim with a statement that Kraft’s counterclaim was not pending when judgment was entered.