Initial Opinion On Time For Responding To Amended Complaint Clarified On Remand

The U.S. Court of Appeals for the Federal Circuit, responding to Kraft's petition for rehearing, has reiterated that the time period to assert a counterclaim in the face of an amended complaint was not tolled by a motion to dismiss. General Mills, Inc. v. Kraft Foods Global, Inc., Case Nos. 06-1569, -1606 (Fed. Cir., July 31, 2007) (Linn, J.).

In its initial opinion in this case (IP Update, Vol. 10, No. 6) the Federal Circuit affirmed the district court's decision that Kraft did not have a counterclaim pending at the time judgment was entered. Although Kraft asserted a counterclaim against General Mills in response to its original complaint, General Mills subsequently filed an amended complaint, which Kraft successfully moved to dismiss. The Federal Circuit held that Kraft's filing of its motion to dismiss did not toll its deadline to answer the amended complaint and reassert its counterclaim. Kraft petitioned for rehearing, arguing that the Federal Circuit's decision undermines the "clearly expressed intent" of Rule 12óto permit certain defenses, including failure to state a claim upon which relief can be granted, to be raised by motion instead of in a responsive pleading.

In its decision on rehearing, the Court emphasized that Rule 12(a)(4), by its express terms, only alters "the periods of time enumerated in Rule 12(a)(1)-(3), which does not include the period of time to answer an amended complaint." That time period (10 days) is specifically covered by Rule 15(a). "The language of the rule is unambiguous. Rule 12(a)(4) does not extend the time for filing an answer to an amended complaint when 'the time remaining for response to...

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