The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On October 26, 2012, this court directed counsel for defendant Mehta to show cause for untimely filing a motion to dismiss. (See Dkt. No. 21.) Counsel timely responded and explained that, based on the language of the Discovery and Scheduling Order filed in this action, and counsel's past experience in this court, she had construed the deadline for filing dispositive motions to include motions filed pursuant to Rule 12(b), Federal Rules of Civil Procedure. For the reasons that follow, the order to show cause is discharged, the Discovery and Scheduling Order is vacated, and plaintiff is directed to file an opposition to defendant Mehta's motion to dismiss.
A motion to dismiss a defendant or claim from a prisoner's civil rights complaint, for failure to exhaust administrative remedies, is properly made as an "unenumerated Rule 12(b) motion." Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). Failure to exhaust administrative remedies is an affirmative defense that must be raised and proven by defendants. Id. at 1119. In deciding a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact, without converting the motion to one for summary judgment. Id. at 1119--20; see also Albino v. Baca, 2012 WL 4215918, *3-4 (9th Cir. Sept. 21, 2012). If the Court concludes that the prisoner has failed to exhaust his administrative remedies, the proper remedy is dismissal without prejudice. Wyatt, 315 F.3d at 1120.
Rule 12(b) expressly provides that a motion premised on any of the defenses enumerated therein must be made prior to the filing of a responsive pleading. See e.g. Bechtel v. Liberty Nat'l Bank, 534 F.2d 1335, 1340-41 (9th Cir. 1976) (relying on language of Rule 12(b) that "[a] motion asserting any of these [enumerated] defenses must be made before pleading if a responsive pleading is allowed."); Augustine v. United States, 704 F.2d 1074, 1075 n.3 (9th Cir. 1983). As a general rule, an unenumerated 12(b) motion must also be filed prior to an answer and, if filed after a responsive pleading, is deemed untimely. See e.g. Ritza v. International Longshoremen's and Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1360 at 642 (1969)). However, there is some conflict in the district courts within this circuit whether an untimely unenumerated Rule 12(b) motion, premised on a prisoner's failure to exhaust administrative remedies, should be denied simply because it was untimely filed. The weight of authority supports dismissal of an untimely unenumerated Rule 12(b) motion in a prisoner case. See, e.g., Thomas v. Baca, 2003 WL 504755, *1-2 (C.D. Cal. 2003) (motion to dismiss denied as untimely filed); accord Anaya v. Campbell, 2011 WL 4458769, *11 (E.D. Cal. 2011) (denying motion as untimely despite noting that there are "conflicting decisions at the district court level within this circuit" concerning the appropriateness of denying an untimely-filed unenumerated Rule 12(b) motion);*fn1 Wilson v. Baker, 2010 WL 2555209, *6-7 (E.D. Cal. 2010) (same); Charity v. Carroll, 2009 WL 2425712, * 3 (E.D. Cal. 2009) (same); Reed v. Williams, 2009 WL 737009, *4-5 (E.D. Cal. 2009) (same). The undersigned agrees with the reasoning of the magistrate judge in Anaya that requiring an unenumerated Rule 12(b) motion to be filed prior to the filing of an answer, and denying the motion as untimely if filed after the answer, "better promote[s] judicial efficiency and economy while at the same time limiting unfair prejudice to a pro se prisoner plaintiff." Anaya v. Campbell, 2011 WL 4458769 at *11.
Nevertheless, the undersigned acknowledges that the pertinent language of the Discovery and Scheduling Order is ambiguous, underscored by a 2009 decision in the Fresno Division of this court. The Discovery and Scheduling Order routinely issued by this court in prisoner cases, including the instant case, describes the dispositive motion deadline as the deadline for "[a]ll pretrial motions, except motions to compel discovery." (See Dkt. No. 18 at 6, ¶ 7.) Because a Discovery and Scheduling Order is routinely issued after all defendants have answered the complaint and/or the court has resolved any motion to dismiss, it is the practice of this court to construe the term "pretrial motions" as dispositive motions only, e.g., motions for summary judgment. However, in the Fresno Division of this court, the prior practice was apparently to permit the filing of an unenumerated Rule 12(b) motion through the date authorized for "pretrial dispositive motions." The Fresno Division amended its scheduling order in prisoner cases approximately five years ago, to explicitly provide different deadlines for filing unenumerated Rule 12(b) motions and dispositive motions. Prior to that amendment, however, defendants were permitted to "raise the affirmative defense of failure to exhaust . . . by filing a motion on or before the pretrial dispositive motion deadline." Gomez v. Scribner, 2009 WL 2058537, *1 (E.D. Cal. 2009). The Sacramento Division of this court has not made the same change in its scheduling order. Thus, based on the literal language of the scheduling order in this action, and the prior practice of the Fresno Division, it was not unreasonable for defense counsel to assume that the pretrial motion deadline included unenumerated Rule 12(b) motions.
Moreover, the Ninth Circuit recently affirmed the dismissal of a prisoner action for failure to exhaust administrative remedies, which had been asserted by defendant in a motion for summary judgment. Albino v. Baca, 2012 WL 4215918 (9th Cir. Sept. 21, 2012). Although the Court of Appeals emphasized that the district court "should have treated the summary judgment motion as an unenumerated Rule 12(b) motion," and addressed the motion pursuant to that standard (which, in turn, would require a "slightly different standard" of appellate review, id. at *3-4), the court did not address whether defendant's assertion of the affirmative defense was timely or properly contained in a summary judgment motion. Accord Ritza v. International Longshoremen's, supra, 837 F.2d at 369-70 ("failure to exhaust non-judicial remedies should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment") (citation omitted); see also Gomez v. Scribner, supra, 2009 WL 2058537, *2 (failure to exhaust raised in pretrial statement and motion; additional briefing ordered and matter decided before trial); but see Taylor v. Clark, 2010 WL 3069243, *2-3 (E.D. Cal. 2010), adopted 2010 WL 5393533 (E.D. Cal. 2010) (Rule 12(c) motion for judgment on the pleadings, premised on the prisoner's alleged failure to exhaust administrative remedies, deemed inappropriate vehicle because a Rule 12(c) motion "would apply different burdens on the parties and, if granted, would cause different end results," and thus construed the motion as one pursuant to Rule12(b), and denied it as "untimely since it must have been 'made before pleading if a responsive pleading is allowed.' Fed. R. Civ. P. 12(b).").
While this overview is by no means exhaustive, it lends support for defense counsel's averment that she acted in good faith. Additionally, defendant asserted in his answer the affirmative defense that "[p]laintiff failed to exhaust applicable administrative remedies." (Dkt. No. 15 at 3.) Good cause having been shown, the order to show cause is discharged. However, counsel is informed that, in the future, a motion to dismiss, pursuant to an unenumerated Rule 12(b) motion, should be filed before an answer. Compliance with this procedure will generally forestall discovery and any disputes thereto, thus conserving judicial resources.
In light of the pendency of defendant Mehta's motion to dismiss, the
court will vacate the Discovery and Scheduling Order,*fn2
and direct plaintiff to file an opposition, or statement of
non-opposition to the motion to dismiss.
Accordingly, IT IS HEREBY ORDERED that:
1. The order to show cause, filed October 26, 2012 (Dkt. No. 21), is discharged.
2. The Discovery and Scheduling Order, filed July 3, 2012 (Dkt. No. 18), is vacated pending further order of this court.
3. Plaintiff shall, within twenty-one (21) days after service of this order, file and serve an opposition, or statement of non-opposition, to the motion to dismiss filed by defendant Mehta. (See Local Rule 230(l).) Plaintiff is informed to carefully review the "Wyatt Notice" provided by defendant pursuant to his motion (see Dkt. No. 20 at 1-2); this notice sets forth the requirements for opposing a motion to dismiss based on the alleged failure of plaintiff to exhaust his administrative remedies. These requirements are also appended to this order.
4. Defendant Mehta may file and serve a reply within seven (7) days after service of plaintiff's opposition or ...