Is Motion to Dismiss considered Answer (MO)

[aren]

Is filing a Motion to Dismiss considered an answer. City filed a Petition for injunction and I counterfiled. The City has not answered my counterclaim except to file a motion to dismiss. I answered and filed affirmative defenses and counterclaim. After they filed a motion to dismiss, I also filed a motion to dismiss their claim. This is set for a hearing on motions. Can I motion the Court or ask the Court to instruct them to respond or move for defaut judgment?

 

[latigo]

Is filing a Motion to Dismiss considered an answer. / Can I motion the Court or ask the Court to instruct them to respond or move for default judgment?

No. The city’s motion is not treated as a reply to your counterclaim.

Moreover, the filing of the motion “alters the time fixed for filing any required responsive pleading” , which, with regard to a reply to a counterclaim is 30 days. See: Rule 55.25 (c) Missouri Rules of Civil Procedure.

If the court denies the city’s motion, then under the same MRCP Rule the city will have a maximum period of 10 days to file its reply, but no less than 30 days from the time the counterclaim was served.

Instead of your anxiousness to prematurely default the city, you’d best be concentrating on convincing the judge with cogent legal argument that just might keep your counterclaim alive and well.
_____________

“Patience is bitter, but the fruit is sweet.”