Judge had not ruled on the defendants 12(b)(6) motion to dismiss because time had not tolled on plaintiffs response, instead judge referred case to mediation. Plaintiff filed a response to the 12(b)(6) motion on the same day judge referred case to mediation (which was a day early pursuant to rule), but then, later that same day judge dismisses case citing "plaintiff's failure to respond." Is it not true that the judges action for mediation (and scheduled for some time in the future), alter the plaintiff's obligation to respond. Is it proper for the judge to refer the case for mediation then dismiss the case without notifying the plaintiff or giving the plaintiff opportunity to rectify a "failure to state a claim upon which relief can be granted" objection? The plaintiff's complaint is well within and pursuant to Civ. R. 8 guidelines and easily proven, def has not complied to discovery, in so many words did admit to understanding what the complaint entailed and has been allowed not to Answer again by posting this motion to delay. it is a Title VII and 42 USC violation case. Is the judge's action an abuse of discretion. Explain how not.
This is too hard to follow - that is the judge ordered to mediation within the time for plaintiff to respond to the motion to dismiss; the plaintiff responds the same time (that is timely) yet the judge dismisses because the plaintiff has failed to respond...something is amiss.
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