Contois v. State Mut. Life Assur. Co.

LA BUY, District Judge.

Defendant’s motion to strike Count II of plaintiff’s complaint.

Reference is made by plaintiff that under Federal Rules of Civil Procedure, rule 12(b), 28 U.S.C.A. following section 723c, defendant’s motion to dismiss Count II of the complaint should have been made before defendant filed its answer. Plaintiff states “However, we shall not press the point that the motion to dismiss has been waived.” Nevertheless the court feels that this matter should be disposed of. In the instant case the motion to dismiss was filed the same time as the answer and both were filed as one…