Meredith v. Unifund CCR Partners et al

Filing 42

MEMORANDUM OPINION AND ORDER, denying 34 MOTION to Dismiss and Withdraw as Counsel Due to Dissolution filed by Centurion Capital Corporation with respect to both requests for relief which it contains as further set out in order.. Signed by Hon. Chief Judge Mark E. Fuller on 5/29/09. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION C H A R L E S MEREDITH, JR., P L A IN T IF F , v. U N IF U N D CCR PARTNERS, et al., D EFEN D A N TS. ) ) ) ) ) C A S E NO.: 2:08cv375-MEF ) ) ) (WO- Do Not Publish) )

M E M O R A N D U M OPINION AND ORDER C h a rle s Meredith, Jr. ("Meredith") filed suit on May 20, 2008 against a variety of d e f e n d a n ts including Centurion Capital Corporation ("Centurion"). Meredith alleges that the d e f e n d a n ts were all engaged in the business of collecting debts and that they made repeated e f f o rts to collect a debt from him which he does not owe even after he advised that he d is p u t e d the debt. Meredith alleges that defendants' actions violated the Fair Debt

C o lle c tio n s Practices Act ("FDCPA"), 15 U.S.C. § 1692. Additionally, Meredith contends th a t defendants are liable to him for the Alabama common law tort of malicious prosecution. This cause is before the Court on the Defendant Centurion Capital Corporation's Motion for D is m iss a l and to Withdraw as Counsel Due to Dissolution (Doc. # 34). For the reasons set f o rth below, the motion is due to be DENIED. C e n tu rio n 's motion is clearly denominated a motion to dismiss. Nevertheless, C e n tu rio n 's motion is predicated on factual information not found in the Complaint. Indeed, th e predicate for the motion is wholly outside the pleadings and dependent upon facts which

came into existence after this lawsuit had been pending for several months and after C e n tu rio n answered the Complaint. Appended to Centurion's motion are two exhibits by w h ic h Centurion purports to establish certain facts relating to the dissolution of Centurion a s a corporation.1 Based on what is claimed in the documents to be the dissolution of C e n tu ri o n months Meredith commenced this lawsuit, Centurion argues that under to M a ryla n d law, the claims against it must be dismissed because it no longer exists and cannot b e sued. Plaintiff disputes Centurion's understanding of Maryland and argues that it is e n title d to discovery on matters relating to the dissolution.2 Federal Rule of Civil Procedure 12 sets forth the applicable rules pertaining to m o t io n s to dismiss. While Centurion has not bothered to specify which type of motion to d is m is s it is making, it is clear that the nature of the contention in the motion to dismiss is th a t the Complaint fails to state a claim against Centurion upon which relief can be granted n o w that Centurion has dissolved. That makes this motion a motion brought under Rule 1 2 (b )(6 ). Federal Rule of Civil Procedure 12(d) makes it plain that a motion made pursuant to Rule 12(b)(6) may not rely on matters outside the pleadings without the Court's active b le s s in g . Fed. R. Civ. P. 12(d). Specifically, when such a motion is made and supported by m a te ria ls outside the pleadings the court may exclude those materials and consider the merits The Court notes that these documents are not certified records, nor do the exhibits in c lu d e any affidavit or declaration identifying, authenticating, or in any way vouching for th e s e "exhibits." The Court notes that Maryland law does govern the legal issue of whether claims in a pending lawsuit against a Maryland corporation abate when the corporation is dissolved. 2
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of the motion without them or accept those materials and treat the motion as a motion for s u m m a ry judgment. Id. Given the procedural posture of this case and the relatively recent f a c tu a l developments relating to the dissolution of Centurion, the Court is not inclined to a c c e p t the materials and treat the motion as one for summary judgment because Plaintiff has n o t had an adequate opportunity to conduct discovery on matters relating to the dissolution. Accordingly, the Court declines to consider the materials relating to matters outside the p le a d in g s which Centurion has presented along with its motion and finds, in the absence of th o s e materials the motion to dismiss is due to be DENIED.3 A s for the motion for leave to withdraw as counsel pursuant to the local rules for this d is tric t, the Court is not persuaded at this time that counsel has set forth an adequate basis f o r this request especially in light of the fact that Centurion, as a corporation, cannot appear p r o se. For the foregoing reasons, it is hereby ORDERED that Defendant Centurion Capital C o rp o ra tio n 's Motion for Dismissal and to Withdraw as Counsel Due to Dissolution (Doc. # 34) is DENIED with respect to both requests for relief which it contains.

The Court further notes that the "exhibits" to the motion are not certified d o c u m e n ts , nor are they properly authenticated by an affidavit or declaration which comports w ith the requirements of Fed. R. Civ. P. 56(e). Many court have refused to consider d o c u m e n ts submitted in support of motions for summary judgment that are not properly a u th e n tic a te d . Were this Court to consider the pending motion as a motion for summary ju d g m e n t, it would also find that it was not a properly supported one. For this additional re a s o n , the Court is not inclined to consider the materials attached to the motion to dismiss a s exhibits and convert the motion to a motion for summary judgment pursuant to Rule 56.

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The parties are advised to immediately commence all discovery required to prepare a d e q u a te ly to present or defend against any dispositive motion. The deadline for such m o tio n s is rapidly approaching. While the Court appreciates that the parties may not have b e e n participating in active discover since the motion to dismiss was filed on March 31, 2 0 0 9 , the Court is expediting ruling on the motion to dismiss, in part to stem the seemingly e n d le s s flow of argument on the motion, in order to allow sufficient time for discovery w ith o u t an extension of the July 10, 2009 deadline for dispositive motions. The parties are f u rth e r advised there will not be sufficient time after the dispositive motion deadline to c o n d u c t discovery necessary to defend against any motion filed on that deadline. The s ta n d a rd briefing schedule on a dispositive motion allows a response with exhibits to be filed a p p ro x im a te ly two weeks after the initial dispositive motion is filed and a reply one week a f te r the response. No further briefs or evidentiary submissions are acceptable without p ro p e r leave of court. DONE this the 29th day of May, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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