UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

APEX COLORS, INC., )

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-273-PRC

)

CHEMWORLD INTERNATIONAL )

LIMITED, INC., et al, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion to Dismiss Second Amended

Consolidated Complaint [DE 434], filed by Defendants Chemworld International Limited, Inc.,

Chemworld International Limited, LLC, Atul Modi, Manoj Modi, and Paul Bykowski on November

15, 2016. Plaintiff Apex Colors, Inc. filed a response on November 29, 2016, arguing that the

Motion to Dismiss is untimely and should otherwise be denied on the merits. Defendants have not

filed a reply, and the time to do so has passed.

Plaintiff filed the Second Amended Consolidated Complaint on September 13, 2016. The

deadline for Defendants to respond was September 27, 2016. See Fed. R. Civ. P. 15(a)(1)(3). No

answer was filed. The instant Motion to Dismiss was filed on November 15, 2016, seven weeks after

a response was due.

Federal Rule of Civil Procedure 12(b) provides that certain defenses, including the failure

to state a claim upon which relief can be granted–may be asserted by motion “made before

pleading.” Fed. R. Civ. P. 12(b). Defendants have provided no explanation for the untimely filing

and have not asked the Court to extend the deadline to respond to the Second Amended

Consolidated Complaint. Therefore, the instant motion is untimely and is denied on that basis. See

Gillo v. Gary Cmty. Sch. Corp., No. 2:14-CV-99, 2014 WL 3767680, at *2-3 (N.D. Ind. July 31,

2014).
Moreover, as argued by Plaintiff, Defendants’ substantive arguments are not well taken. 

First, Defendants argue that Plaintiff was required to attach evidence to the Second Amended

Complaint to “substantiate” its allegations. Federal Rule of Civil Procedure 8(a) requires notice

pleading, which is met by stating a claim that is plausible on its face. See Huri v. Office of the Chief

Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 833 (7th Cir. 2015) (“Plausibility does not

mean probability: a court reviewing a 12(b)(6) motion must ‘ask itself could these things have

happened, not did they happen.’” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Defendants

do not argue that Plaintiff has failed to state a claim. Defendants offer no law supporting their

argument that Plaintiff was required to attach “supporting exhibits.” Defendants’ argument is not

well taken, and the motion to dismiss is denied on this basis.

Second, Defendants are also arguing that Plaintiff is required to plead allegations that would

anticipate and refute Defendants’ defense that Finos, not Apex, was the true owner of the assets that

Apex has accused Defendants of stealing and misappropriating. “A complaint states a claim on

which relief may be granted whether or not some defense is potentially available. This is why

complaints need not anticipate and attempt to plead around defenses.” United States v. Northern

Trust Co., 372 F.3d 886, 888 (7th Cir. 2004). Defendants’ arguments related to its defenses are not

well taken, and the motion to dismiss is denied on this basis.

Based on the foregoing, the Court hereby DENIES the Defendants’ Motion to Dismiss

Second Amended Consolidated Complaint [DE 434]. In the Court’s discretion, the Court declines

to award sanctions under 28 U.S.C. § 1927 as requested by Plaintiff in its response brief.

So ORDERED this 6th day of January, 2017.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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