UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

DAVID PINNELL, 

 Plaintiff, Case No. 14-cv-13999 

v. Honorable Thomas L. Ludington 

EATON CORPORATION, 

 Defendant. 

_______________________________________/ 

ORDER GRANTING MOTION FOR LEAVE TO FILE ANSWER, 

STRIKING ANSWER, AND DIRECTING FILING 

OF MOTION TO DISMISS AND RELATED PAPERS 

 On October 16, 2014, Defendant Eaton Corporation removed this case from Saginaw 

County Circuit Court. ECF No. 1. While the case was pending in state court, Eaton responded to 

Plaintiff Pinnell’s initial pleading with a motion to dismiss. Id. On November 25, 2014, Eaton 

filed a Motion for Leave to File an Answer Instanter. ECF No. 3. Eaton filed an answer on the 

Court’s docket the same day. ECF No. 5. In Eaton’s motion it asserted that it initially believed 

that pleading an answer was not required under Federal Rule of Civil Procedure 81(c)(2). ECF 

No. 3 at ¶ 3. “Upon further consideration, however, Defendant [was] . . . concerned that Rule 

81(c)(2) could be read to require an Answer even though a Motion to Dismiss was previously 

filed.” Id. at ¶ 4. Because of this confusion, Defendant requested this Court permit the filing of 

an answer. Id. 

 An action removed from state court is governed by Federal Rule of Civil Procedure 81(c) 

upon its arrival in federal court. See Purcell v. State Farm Mut. Auto. Ins. Co., No. 11-7004, 

2012 WL 425005, at *3 (E.D. Pa. Feb. 10, 2012). Rule 81(c)(2) provides that “[a]fter removal, 

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repleading is unnecessary unless the court orders it. A defendant who did not answer before 

removal must answer or present other defenses or objections under these rules within the longest 

of these periods: . . . (C) 7 days after the notice of removal is filed.” FED. R. CIV. P. 81(c)(2). 

Were it that Eaton had not answered Pinnell’s complaint in state court, a responsive 

pleading would have been required within seven days of removal. Since, however, Eaton filed a 

responsive pleading in state court, their motion to dismiss, a responsive pleading is not 

necessary. Under the Federal Rules of Civil Procedure, the bringing of a motion to dismiss tolls 

the time in which a defendant must answer a complaint: 

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this 

rule alters these periods as follows: 

(A) if the court denies the motion or postpones its disposition until trial, the 

responsive pleading must be served within 14 days after notice of the court's 

action . . . 

FED. R. CIV. P. 12(a). Thus, Eaton did not need to request the filing of an answer since they have 

adequately pled in response to Pinnell’s complaint. 

The responsive pleading filed by Eaton in state court, having been removed with 

Pinnell’s complaint, is now a pending motion before this Court. The fact that a motion to dismiss 

is pending does not preclude a defendant from answering the complaint. Though, answering will 

technically preclude a defendant from later bringing a motion to dismiss. See Litchfield Fin. 

Corp. v. Buyers Source Real Estate Grp., 389 F. Supp. 2d 80, 84 (D. Mass. 2005). Eaton is free 

to answer or not to answer Pinnell’s complaint. 

Because of the confusion engendered, it appears on both sides, by the removal of a state 

complaint that had already been responded to by Eaton, repleading will be directed from the 

Defendant to clear up the docket. In order to effectuate this, Eaton’s answer, filed with its motion 

for leave to file, will be stricken. Eaton will then be directed to refile its motion to dismiss as a 

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separate docket entry and may then file its answer, if it chooses to do so. The clock governing the 

time in which Pinnell must refile his response, and supplemental brief, to Eaton’s motion will be 

restarted when the motion is filed on the docket. The motion will then be calendared for hearing 

in accordance with this Court’s practices. 

Accordingly, it is ORDERED that Defendant Eaton’s Motion for Leave to File Answer, 

ECF No. 3, is GRANTED. The Defendant may file an answer, if it chooses to do so. 

It is further ORDERED that Defendant Eaton’s Answer, ECF No. 5, is STRICKEN. 

It is further ORDERED that Defendant Eaton is DIRECTED to file its motion to 

dismiss, originally filed in state court, see ECF No. 1, on this Court’s docket. 

It is further ORDERED that Plaintiff Pinnell is DIRECTED to file his response to 

Defendant’s motion to dismiss along with the supplemental brief, both originally filed in state 

court, on this Court’s docket. 

 

Dated: January 28, 2015 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on January 28, 2015. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

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