Kadylak v. O'BRIEN

GIBSON, District Judge.

Nicholas Plevel, one of the defendants, after answering the complaint, has moved to dismiss the action under Rule 12 (b) (6), Rules of Civil Procedure, 28 U.S. C.A. following section 723c, which provides that a complaint may be dismissed upon motion for failure to state a claim upon which relief can be granted. Rule 12 (b) also provides that a motion making -any of the defenses detailed therein shall be made before pleading if a further pleading is permitted. The motion, as made, must therefore be denied.

The defendant has not lost his right to object to the pleading by…