FRHUEB, Inc v. Sabino De Freitas Abdala
- Ronnie Abrams
- 1:21-cv-07395
- U.S. District Court · Southern District of New York
- 3
In FRHUEB v. Thiago Sabino, Judge Abrams denied FRHUEB’s motion to dismiss counterclaims as untimely.
FRHUEB, Inc.’s motion to dismiss Thiago Sabino De Freitas Abdala and Priscila Patto’s counterclaims was denied as untimely; FRHUEB may raise its arguments in a motion for summary judgment.
What happened
FRHUEB, Inc. asked the court to dismiss Thiago Sabino De Freitas Abdala and Priscila Patto’s counterclaims. An earlier order required motions to dismiss to be filed within two weeks after a decision on the defendants’ motion to stay. The stay ended on March 1, 2023, but FRHUEB filed its motion on August 18, 2023.
FRHUEB argued that a later order allowed the motion. The court disagreed, explaining that the later order authorized a motion to strike, not a motion to dismiss. The court also said that treating the filing as a motion to strike would not help because such a motion should not be used to dismiss a counterclaim.
Judge Abrams denied FRHUEB’s motion as untimely and directed the clerk to terminate it. The court said FRHUEB could raise its arguments in a later motion for summary judgment.
The detailed version
- FRHUEB, Inc v. Sabino De Freitas Abdala · No. 1:21-cv-07395
- Ronnie Abrams
- Feb. 21, 2024
Background
FRHUEB, Inc. moved under Federal Rule of Civil Procedure 12(b)(7) to dismiss Thiago Sabino De Freitas Abdala and Priscila Patto’s counterclaims. On August 11, 2022, the court ordered that motions to dismiss be filed within two weeks after a decision on the defendants’ motion to stay. Judge Parker granted the stay on September 30, 2022. The stay was lifted on March 1, 2023, after a foreign proceeding was resolved. FRHUEB filed its motion to dismiss on August 18, 2023, more than five months after the stay ended.
The Parties’ Arguments
FRHUEB argued that a June 21, 2023 order by Judge Parker gave it permission to file the motion. The court rejected that reading. Judge Parker’s order allowed FRHUEB to file a motion to strike by August 21, 2023, not a motion to dismiss. A motion to strike asks the court to remove an insufficient defense or improper material from a pleading. The court further explained that even if FRHUEB’s filing were treated as a motion to strike, Rule 12(f) should not be used to dismiss a counterclaim.
Ruling
The court denied FRHUEB’s motion to dismiss as untimely. The court relied on its authority to control the timing of motions and its scheduling orders. It noted that dispositive motions—motions that could resolve claims or the case—are generally preferably decided on their merits, but concluded that FRHUEB could raise its arguments in a motion for summary judgment because discovery was complete and both parties intended to file summary-judgment motions. Judge Abrams directed the clerk to terminate the motion at ECF No. 183. The order did not decide the merits of the defendants’ counterclaims.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.