IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA 

GAINESVILLE DIVISION 

SHERRIE RUSSELL-BROWN, 

 Plaintiff, 

CASE NO. 1:09-cv-00257-MP-AK 

v. 

 

THE UNIVERSITY OF FLORIDA, 

BOARD OF TRUSTEES, 

THE UNIVERSITY OF FLORIDA, 

LEVIN COLLEGE OF LAW, and 

ROBERT H. JERRY, II, in his 

individual and official capacities as 

Dean of the University of Florida, 

Levin College of Law, 

Defendants. 

___________________________________/ 

PLAINTIFF’S REPLY MEMORANDUM TO DEFENDANTS’ RESPONSE (DOC. 

121) TO PLAINTIFF’S MOTION TO STRIKE (DOC. 107)

 

Pursuant to Fed.R.Civ.P. 12(b) and N.D. Fla. Loc. R. 7.1(C), in further support of her 

Motion to Strike (Doc. 107), Plaintiff Sherrie Russell-Brown (“Plaintiff” or “Ms. Russell-Brown”) 

advises the Court as follows: 

SUPPORTING MEMORANDUM OF LAW

I. 

PRELIMINARY STATEMENT

1. On March 26, 2010, the Court entered an Order (Doc. 47) directing the Defendants to 

respond to Ms. Russell-Brown’s Verified Complaint (Doc. 45), no later than Monday, April 26, 2010. 

2. On April 26, 2010, the Defendants filed an Answer, Affirmative Defenses and 

Counterclaim (“Answer”) (Doc. 51), followed by a Motion for Renewed Consideration and 

Supplementation of Defendants’ Motion to Dismiss or, Alternatively, for Summary Judgment (Doc. 

52) (“Motion to Dismiss”). 

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3. On July 21, 2010, Ms. Russell-Brown moved to strike (Doc. 107) the Defendants’ 

Motion to Dismiss (Doc. 52), as precluded or rendered moot, by the Defendants filing a responsive 

pleading, their Answer (Doc. 51), on April 26, 2010, or by Ms. Russell-Brown’s filing of her First 

Amended Complaint (Doc. 97), on July 15, 2010. 

4. On August 3, 2010, in their Response in Opposition (Doc. 121), citing to no legal 

authority of their own in support, the Defendants argue that the cases cited to by Ms. Russell-Brown 

are inapposite because: 1) they apply to cases where the defendant filed a motion to dismiss after

filing an answer (citing to Byrne v. Nezhat, 261 F.3d 1075, 1093 n. 35 (11th Cir. 2002)), and they filed 

their Motion to Dismiss before they filed their Answer; 2) they apply to cases where the defendant 

filed a motion to dismiss which belatedly raises a defense omitted from an earlier filed motion to 

dismiss (citing to Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002)), and; 3) they do not apply 

to cases where the plaintiff filed a “motion” to amend. 

5. By Notice dated August 6, 2010 (Doc. 126), Ms. Russell-Brown withdrew her First 

Amended Complaint (Doc. 97) as well as her Motion for Leave to File a First Amended Complaint 

(Doc. 98), and, therefore, limits this Reply to the argument that the Defendants filing a responsive 

pleading, their Answer (Doc. 51), precluded or rendered moot the Defendants’ Motion to Dismiss 

(Doc. 52). 

II. 

ARGUMENT 

6. Starting with the Defendants’ second argument that the cases cited to by Ms. RussellBrown in her Motion to Strike, apply where the defendant filed a motion to dismiss which belatedly 

raises a defense omitted from an earlier filed motion to dismiss (citing to Skrtich, 280 F.3d at 1306), 

the Defendants mischaracterize the holding in Skrtich. The holding of the Eleventh Circuit in 

Skrtich, upon which Ms. Russell-Brown relies, applies to Fed.R.Civ.P. Rule 12(b) and the well-settled 

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legal principle that a defendant has a choice to either file an answer or a motion to dismiss in lieu of 

an answer, but that a defendant cannot file both an answer and a motion to dismiss, directed to the 

same complaint. Accordingly, on the jump cite provided by Ms. Russell-Brown, page 1306, the 

Eleventh Circuit in Skrtich states that “all these pleadings must conform to the Federal Rules of Civil 

Procedure. In this case, because a responsive pleading - an answer had been filed, under the 

plain language of Rule 12(b), a motion to dismiss would have been inappropriate. Rule 12(b) 

provides that all defenses must be asserted either (1) in a responsive pleading, or (2) by 

motion under Rule 12(b) before interposing a responsive pleading if one is due.” See, Skrtich, 

280 F.3d at 1306. (Emphasis added). 

7. The language in Skrtich referred to by the Defendants, applies to Fed.R.Civ.P. Rule 

12(g), which “specifically prohibits a party that has previously filed a motion to dismiss from filing a 

second pre-answer motion to dismiss raising an omitted defense that could have been presented in 

the first motion to dismiss.” Fed.R.Civ.P. Rule 12(g) is inapplicable here and Ms. Russell-Brown 

neither referred to Fed.R.Civ.P. Rule 12(g) nor relied upon it in her Motion to Strike (Doc. 107). 

8. Which leads to the Defendants’ first argument and another legal and factual 

mischaracterization, that whereas the law prohibits a defendant from filing a motion to dismiss after

filing an answer, it does not prohibit the defendant from filing a motion to dismiss before filing an 

answer and the Defendants filed their Motion Dismiss before they filed their Answer. 

9. First, factually, as shown by the docket itself, the Defendants filed their Answer 

(Doc. 51) before they filed their Motion to Dismiss (Doc. 52). 

10. However, even if the Defendants’ Motion to Dismiss were filed before their Answer, 

the order of filing is immaterial. The relevant issue is that once a defendant files a responsive 

pleading directed to a complaint, any pending motions to dismiss directed at the same complaint are 

deemed a nullity. 

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11. For example, in Olesen-Frayne v. Olesen, 2:09-cv-49-FtM-29DNF, 2009 WL 580310, 

at * 1 (M.D.Fla. March 6, 2009), cited to in Ms. Russell-Brown’s Motion to Strike (Doc. 107, p. 3, ¶ 

7), the Court makes clear that the Motion to Dismiss (Doc. # 15) was filed before the Answer and 

Affirmative Defenses (Doc. # 17). Notwithstanding, citing to Skrtich and Byrne, the Court holds 

that “A motion to dismiss is inappropriate once a responsive pleading has been filed . . . 

Subsequent to the filing of his Amended Motion to Dismiss (Doc. # 15), respondent filed an 

Answer and Affirmative Defenses (Doc. # 17). Therefore, the motions to dismiss will be denied.” 

(Emphasis added). 

III. 

CONCLUSION

12. In sum, Fed.R.Civ.P. Rule 12(b) specifically provides that a defendant must either file 

a responsive pleading or a Rule 12(b) motion in lieu of a responsive pleading, but that a defendant 

cannot file both a responsive pleading and a Rule 12(b) motion, directed at the same complaint. 

13. And, a review of the cases filed with this Court over the past three years, indicates 

that Ms. Russell-Brown is in the unenviable position of having the only case before this Court, where 

a defendant filed an Answer and also has a still pending Motion to Dismiss, directed at the same 

complaint. 

WHEREFORE, Ms. Russell-Brown respectfully requests this Honorable Court to strike the 

Defendants’ Motion to Dismiss (Doc. 52), as precluded or rendered moot, by the Defendants filing a 

responsive pleading, their Answer (Doc. 51). 

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DATED this 9th day of August, 2010. 

 Respectfully submitted, 

/s/ Lennox S. Hinds

Lennox S. Hinds 

New York Bar No. 8196 

Stevens, Hinds & White, PC 

116 West 111th Street 

New York, NY 10026-4206 

(212) 864-4445 

(212) 222-2680 (fax) 

lawfirmshw@yahoo.com 

Attorney for Plaintiff 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 9, 2010, the foregoing has been filed with the Clerk 

of the Court and served electronically by using the CM/ECF system, upon the following: 

Ian S. Marx, Esq. 

Greenberg Taurig, LLP 

200 Park Avenue 

Florham Park, NJ 07932 

Richard C. McCrea, Jr., Esq. 

Greenberg Taurig, LLP 

Courthouse Plaza, Suite 100 

625 East Twiggs Street 

Tampa, FL 33602 

Attorneys for Defendants 

/s/ Lennox S. Hinds

Lennox S. Hinds 

Attorney for Plaintiff

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