Bennett

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND OVERRULING PETITIONER’S OBJECTIONS

Pursuant to 28 U.S.C. Section 636 , the Court has reviewed the Petition, all of the records herein and the attached Revised Report and Recommendation of the United States Magistrate Judge. The Court approves and adopts the Magistrate Judge’s Revised Report and Recommendation.

The Court OVERRULES Petitioner’s Objections to the Magistrate Judge’s Revised Report and Recommendation. Petitioner objects to the Proposed Judgment, which provides that in addition to the merits of the Petition, Respondent may also address the affirmative defenses, including statute of limitations and laches. Petitioner argues that Respondent has waived these affirmative defenses by failing to raise them in his motion to dismiss, which was the first document Respondent filed in response to Petitioner’s Petition. However, a motion to dismiss is not a pleading as defined by Fed.R.Civ.P. 7(a), and therefore is not, in most cases, a responsive pleading as defined by Fed. R.Civ.P. 12. Accordingly, failure to raise an affirmative defense in a motion to dismiss does not mean that the…