United States District Court, D. Massachusetts
JOBS FIRST INDEPENDENT EXPENDITURE POLITICAL ACTION COMMITTEE and MELISSA LUCAS, Plaintiffs,
BRIAN MANNAL, Defendants.
Respectfully submitted, Peter Charles Horstmann, Esquire
PLAINTIFFS' MOTION TO STRIKE DEFENDANT
MANNAL'S 4TH MOTION TO DISMISS (DOC. 76) &
CROSS-MOTION TO DISMISS PURSUANT TO RULES 41(A)(1)(A)(I),
41(A)(2) & 12(A)(4)(A) & INCORPORATED MEMORANDUM OF
instant motion & memorandum the Plaintiffs hereby move
pursuant to Fed.R.Civ., Rules 12(f)(2) and 12(g)(2) to strike
Defendant Brian Mannal's, ("Mannal"),
4th Motion to Dismiss, (Doc. 76)(See Docs. 11, 28,
63), because Mannal has moved to dismiss on three prior
occasions and has failed to include his current alleged Rule
12(b)(6) argument in any other motions. Plaintiffs also move
to dismiss the entire case pursuant to Rule 41(a)(2), Rule
41(a)(1)(A)(i), and Rule 12(a)(4)(A). In so doing, the
Plaintiffs incorporate by reference this Court's Opinion
dated November 10, 2016, (Doc. 75), and their previously
filed legal memoranda opposing previous
motions. In support thereof, the Plaintiffs
respectfully submit the following:
Defendant personifies the need for Rules 12(f)(2) and
12(g)(2) which prohibit repetitive motions to dismiss where
the arguments were raised or should have been raised in a
single motion. In his latest filing, the Defendant belatedly
attempts to raise issues, under Rule 12(b)(6), that he should
have previously raised. Indeed, the Defendant has repeatedly
cited to this Court's Opinion in Bargantine in
his two most recent Motions to Dismiss wherein the Court
clearly considered a Rule 12(b)(6) argument in conjunction
with M.G.L. c. 231, Section 59H argument. Bargantine v.
Mech. Coop. Bank, 2013 WL 6211845 p.l (D.Mass. 2013).
Therefore, the raising of multiple arguments in support of
dismissal was not an obscure concept to Mannal who also
included 12 separate arguments and additional sub-arguments
in his last motion to dismiss. (Doc. 63). The Defendant
should not benefit from his prior failure to included a Rule
12(b)(6) argument in his prior motion. Pruco Life Ins.
Co. v. Willmington Trust Co., 616 F.Supp.2d 210, 214-16
(D.R.I. 2009)("in law, as in life, do-overs are a rare
commodity, and Rule 12 does not provide one here"). It
is also clear from the Court's November 10, 2016 Opinion
that it was mindful of Rule 12(b)(6) as it reviewed the
Parties' submissions because the Court allowed the
Codefendant's Motion to Dismiss on Rule 12(b)(6) grounds.
(Doc. 75, p. 11). Lastly, Rule 12(a)(4)(A) required Mannal to
Answer the Amended Complaint by November 24, 2016, 14 days
after this Court's Order partially denying his Motion to
Dismiss. Having failed to previously raise a Rule 12(b)(6)
argument and file an Answer, Mannal's 4th
Motion to Dismiss should be stricken.
CROSS-MOTION TO DISMISS
the Plaintiffs cross-move to dismiss the entire case based
upon Rule 41(a)(1)(A)(i), Rule 41(a)(2) and/or Rule
12(a)(4)(A). Following the filing of the Plaintiffs'
Amended Complaint, (Doc. 61), Mannal filed a "Motion to
Dismiss Case as Frivolous Pursuant to M.G.L. c. 231 Section
59H". (Doc. 63). The Court issued an Opinion on November
10, 2016 denying part of Mannal's motion. (Doc. 75).
Accordingly, Mannal's Answer to the Amended Complaint was
due on November 24, 2016. Rule 12(a)(4)(A). At no time since
November 10, 2016, has Mannal filed an Answer to the Amended
Complaint as he was required to do within 14 days of the
Opinion. Now, five months later he is seeking
to the filing of the instant motion, on December 22, 2016,
the undersigned counsel conferred with the Defendant by email
and suggested that the Parties enter into a stipulation of
dismissal. The Defendant indicated that he would consider the
suggestion and would respond in a few days. No response was
received prior to the filing of the Defendant's most
recent Motion to Dismiss.
based upon the foregoing arguments and authorities, this
Honorable Court is respectfully urged to deny the
Defendant's 4th Motion to Dismiss and to dismiss this
case without costs or attorney's fees assessed to either
Peter Charles Horstmann, Esquire, hereby certify that on this
25th day of April, 2017, a copy of the foregoing was served
electronically upon Brian Mannal, Esquire, 297 North Street,
No. 230, Hyannis, MA 02601.