Page 1 of 34UNITED STATES DISTRICT COURTDISTRICT OF SOUTH CAROLINACHARLESTON DIVISIONRighthaven LLC,Plaintiff,v.Dana Eiser,Defendant.Civil Action No. 2:10-CV-3075-RMG-JDA
SMOTION TO DISMISSCERTAIN COUNTERCLAIMSI
Plaintiff initiated this action with its Complaint, Dkt. #1, on December 2, 2010.Defendant answered and counterclaimed pro se on January 18, 2011. Dkt. #7. Plaintiff failed tofile a reply or move to dismiss within the time limits of Rule 12(a), F
.P., and went intotechnical default in mid-February
around the time Defendant retained counsel. Counsel electednot to pursue the default but instead to file an Amended Answer and Counterclaims
as of right under Rule 15(a)(1), F
.P. Dkt. #22.Plaintiff timely responded, filing a motion to dismiss. Dkt. #23.
Around this time,Plaintiff also sought to amend its Complaint to remove an improper demand for websitesurrender. Dkt. #30. Pl
s motion was unopposed and was granted. Dkt. #33. As a result, itwas clear Defendant would have to file a second amended answer and counterclaim, so
Plaintiff’s motion to dismiss was moot. Defendant therefore did not file a substantive response to
the motion to dismiss, but noted its mootness given the procedural posture. Dkt. #28.
Plaintiff’s aggression in the motion to dismiss is almost unbelievable. For example, Plaintiff
asks the Court to strike the answer and counterclaim entirely (and to hold Defendant in default) because the First Amended Answer was untimely filed. Dkt. #23 at 1. This claim was entirelywithout merit
the reason Defendant was able to file an amended pleading as of right was that
was in default, a default Defendant did not pursue.
2:10-cv-03075-RMG -JDA Date Fled 07/11/11 Entry Number 62 Page 1 of 34