damages; (3) fraud; (4) fraud—consequential damages; (5) bad faith; (6) violation of the Georgia Uniform Deceptive Trade Practices Act and violation of the Fair Business Practices Act; (7) negligent misrepresentation; (8) unjust enrichment; (9) statutory damages and negligence per se; (10) punitive damages; (11) attorney’s fees; and (12) statutory attorney’s fees. (Doc. 1-2 ¶¶ 40-118). Defendant moves to dismiss claims 1-4 and claims 6-11. (Doc. 4-1). As a threshold issue, Plaintiff notes that Defendant’s Answer, which was filed prior to the present Motion, raises the defense .of failure to state a claim. (Doc. 5 citing Doc. 1-3). Therefore, Plaintiff argues, Defendant’s Motion is a “nullity and must be stricken." (Doc. 5 citing Byrne v. Nezhat, 261 F.3d 1075 (11th Cir, 2001) (<HOLDING>)). However, the Court “may construe the Rule
recognizing that a rule 12b6 motion is an appropriate vehicle on which to seek dismissal of a claim barred by a prescription statute holding that a motion pursuant to fed r civ p 12b6 filed after an answer which states failure to state a claim as a defense is a nullity holding that seventh amendment right to jury trial not violated by courts dismissal for failure to state a claim pursuant to rule 12b6 because as a matter of law complaint faded to present an issue for trial holding that a court should not dismiss a complaint pursuant to rule 12b6 for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief  holding that only motions filed under 12b6 can be converted to a summary judgment motion