United States Court of Appeals For the Seventh Circuit
Civil Procedure — summary judgment — pleadings
Where the defendants moved for summary judgment without filing an answer, the plaintiff was required to argue that the allegations in the complaint are deemed admitted.
“Modrowski might have conclusively established most of the material facts alleged in his complaint simply by highlighting the defendants’ failure to file a timely answer to his first amended complaint. Generally, a defendant must serve an answer within 21 days of receipt of service of a complaint (or within 60 days if she has waived service); failure to deny an allegation constitutes an admission. FED. R. CIV. P. 12(a)(1); FED . R . CIV . P. 8(b)(6) (‘An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied.’). While serving a Rule 12 motion tolls the deadline for a defendant to file an answer, filing a Rule 56 motion has no such effect. Compare FED. R. CIV. P. 12(a)(4) with FED. R. CIV. P. 56. The defendants’ unorthodox strategy of responding to Modrowski’s first amended complaint with a motion for summary judgment, unaccompanied by any other responsive pleading, was thus risky, because Modrowski could have pointed to ‘admissions on file’ to support his allegations. See Celotex, 477 U.S. at 324. Modrowski had the burden of presenting these arguments to the district court, however, and he failed to do so.”
Appeal from the United States District Court for the Northern District of Illinois, Guzmán, J., Wood, J.