United States District Court, C.D. California
ORDER VACATING PLAINTIFF'S MOTION TO DISMISS AND
MOTION TO STRIKE [DKT. 284]
D. PREGERSON UNITED STATES DISTRICT JUDGE.
before the court is Plaintiffs j2 Cloud Services, LLC and
Advanced Messaging Technologies, Inc. (collectively,
“j2 ”) Motion to Dismiss Defendant Farjad
Fani's counterclaims for declaratory judgment of
non-infringement and invalidity pursuant to Fed.R.Civ.P.
12(b)(6) and Motion to Strike Fani's third affirmative
defense for invalidity pursuant to Fed.R.Civ.P. 12(f). Having
reviewed the parties' submissions, the court VACATES the
motions and adopts the following Order.
court assumes the parties' familiarity with the factual
background of this case. In relevant part, j2 filed the
operative complaint in this action on April 15, 2016. (Dkt.
43.) On July 1, 2016, Fani waived service pursuant to a
stipulation by the parties. (Dkt. 112.) Subsequently, on
December 12, 2016, Mr. Fani answered the Complaint and served
counterclaims. (Dkt. 191.) The following day, the court
struck Mr. Fani's Answer and Counterclaim for failure to
include the appropriate counterclaim caption on the cover
page and for mistitling the relevant docket entry as a suit
by Fani against Fani. (See Dkts. 193, 194.) Mr. Fani
refiled a corrected document with the appropriate caption and
docket entry text on December 13, 2016. (Dkt. 195.)
April 7, 2017, j2 filed a motion to dismiss the counterclaims
for invalidity and non-infringement and to strike the third
affirmative defense for invalidity. Fani does not respond to
the merits of j2's contentions but instead represents to
the court that he intends to file amended pleadings as of
right pursuant to Fed.R.Civ.P. 15(a)(1)(B) by April 28, 2017,
thereby mooting the instant motion. j2 responds that Fani
cannot avail himself of the ability to file an amended
pleading as of right because he has already amended his
pleading once and, even if he could amend his pleading, that
right only extends to Fani's counterclaims and not the
affirmative defenses in his Answer.
Rule 15(a), “A party may amend its pleading once as a
matter of course” within certain timelines.
Fed.R.Civ.P. 15(a). This rule distinguishes between pleadings
that require a responsive pleading-e.g., a complaint,
counterclaim, third-party complaint-and those that do not.
See Fed. R. Civ. P. 7 (listing allowed pleadings).
All pleadings may be amended once as a matter of course
within “21 days after serving it . . . .”
Fed.R.Civ.P. 15(a)(1)(A). If, however, “the pleading is
one to which a responsive pleading is required, ” a
party may amended the pleading “21 days after service
of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.”
contends that his December 13 pleading, a combined Answer and
Counterclaims, was one which required a responsive pleading
and thus entitled him to amend as a matter of course within
21 days after service j2's instant motion made pursuant
to rule 12(b) and (f). j2 first objects on the ground that
the December 13 pleading was itself an amended pleading,
which amended Fani's December 12 Answer and Counterclaim.
In support, j2 cites a Seventh Circuit decision for the
proposition that “the federal rules do not distinguish
between technical and substantive amendments, ” and it
“is of no consequence” that the amendments may
have been “technical ones requested by the district
court judge” or to “correct clerical
errors.” Rodgers v. Lincoln Serv., Inc., 771
F.2d 194, 203-04 (7th Cir. 1985). In Rodgers,
however, the court was addressing a plaintiff who had revised
his Complaint once already to replace John Doe defendants
with actual names. As the Seventh Circuit recognized, even
though this was a technical amendment, it was not a
“trivial amendment” but rather had the potential
to affect serious notice and jurisdictional concerns.
Id. Here, by contrast, Fani was directed to submit a
corrected document to update a caption and docket entry text
that fixed typographical errors and made no substantive
changes and asserted no additional claims or parties.
Likewise, there were no notice concerns as the counterclaim
portion of the first pleading explicitly lists Plaintiffs j2
and Advanced Messaging Technologies as the counter-defendants
of the counterclaim. (Dkt. 191 at 57.) Accordingly, the court
finds that Fani's December 13 pleading was the first
pleading for purposes of the Rule 15 analysis.
contends that, even if Fani is permitted to amend his
Counterclaim as a matter of course, that right does not
extend to allow an Amended Answer because the Answer is not a
pleading “to which a responsive pleading is
required.” Put differently, the question is whether
Fani's December 13 filing constitutes one pleading-a
combined Answer and Counterclaim to which a response is
required-or two separate pleadings for purposes of Rule 15.
The few courts to have addressed this issue have arrived at
divergent conclusions. See Yale Univ. v. Konowaloff,
No. 3:09CV466 AWT, 2010 WL 3925262, at *1 (D. Conn. Sept. 29,
2010) (holding that an Amended Answer containing both an
answer and counterclaim were two separate pleadings and only
the latter could be amended pursuant Rule 15(a)(1)(B));
but see Primerica Life Ins. Co. v. Davila, No.
1:10-CV-1924 AWI SMS, 2011 WL 643395, at *3 (E.D. Cal. Feb.
17, 2011) (finding that “Counterclaims are not separate
pleadings, but are instead items that are asserted as part of
another pleading, such as an answer” and applying Rule
15(a)(1)(B)'s time limit to the entire filing). Absent
additional guidance from the court of appeals, this Court
finds that a single filing which contains both an Answer and
a Counterclaim constitutes two separate pleadings, and only
the latter is a pleading “to which a responsive
pleading is required” for purposes of Rule 15. By its
plain terms, Rule 15 distinguishes between pleadings that
require a response and those that do not. The former is
governed by one set of rules for amendment and the latter by
another. An Answer is generally a pleading to which a
responsive pleading is not allowed. See Fed. R. Civ.
P. 7(a)(7) (noting that a reply to an answer is allowed only
by court order). The addition of counterclaims to an Answer
does not convert the Answer into a pleading to which a
response is allowed. To the contrary, only “an answer
to a counterclaim designated as a counterclaim” is
allowed. Fed.R.Civ.P. 7(a)(3). To reach the opposite
conclusion would mean that a defendant who filed an answer
alone would be limited to amend the answer once as a matter
of course within 21 days, while a defendant who filed an
answer supplemented with any counterclaim would be able to
amend that same answer-not just the counterclaims-potentially
months later. This is inconsistent with the text and purpose
of Rule 15. Accordingly, the court finds that Fani may file
an Amended Counterclaim within as a matter of course by April
28, 2017 but must seek leave of this Court to file an Amended
Answer pursuant to Fed.R.Civ.P. 15(a)(2).
basis of Fani's representation that he will amend his
pleadings, the court hereby VACATES j2's Motions to
Dismiss and Strike. In the event that Fani elects not to file