Powell v. Wal-Mart Stores East, LP et al

Filing 12

Order that the Court is treating the 2 MOTION to Dismiss and Incorporated Brief filed by Christopher Orstadt as a MOTION for Summary Judgment; Response to Motion due by 3/1/2018, Replies due by 3/15/2018, Motion to be taken under submission on 3/16/2018.. Signed by Magistrate Judge Katherine P. Nelson on 2/1/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARISSA POWELL,
Plaintiff,
v.
WAL-MART STORES EAST, LP, and
CHRISTOPHER ORSTADT,
Defendants.

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CIVIL ACTION NO. 1:18-00018-N

ORDER

This action is before the Court on the Motion to Dismiss under Federal Rule of
Civil Procedure 12(b)(6) (Doc. 2) filed by Defendant Christopher Orstadt. 1

In

support of his motion, Orstadt attaches his own affidavit claiming he did not work at
the subject Wal-Mart store during the time period relevant to the Plaintiff’s claims.
Under Federal Rule of Civil Procedure 12(d), “[i]f, on a motion under Rule
12(b)(6)…, matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56[,]”
and “[a]ll parties must be given a reasonable opportunity to present all the material
that is pertinent to the motion.”

Because the affidavit is a “matter outside the

pleadings,” and because the Court currently finds no reason to exclude it sua sponte,
the parties are hereby given notice that the Court intends to treat the motion to
As ordered (see Doc. 8), Defendant Wal-Mart Stores East, LP (“WMSE”) has timely
filed a supplement to its notice of removal correcting certain deficiencies in its
allegations supporting diversity of citizenship (see Doc. 9). Upon consideration of
the notice of removal (Doc. 1) and supplement (Doc. 9), the undersigned finds that
WMSE has alleged sufficient facts demonstrating both the citizenships of the parties
and the minimum amount in controversy for purposes of subject matter jurisdiction
under 28 U.S.C. § 1332(a). At this time, the undersigned expresses no opinion on
WMSE’s claim that non-diverse defendant Orstadt has been fraudulently joined.
1

dismiss as a motion for summary judgment subject to the provisions of Federal Rule
of Civil Procedure 56 and S.D. Ala. CivLR 56.
The Plaintiff must file and serve any response to Orstadt’s motion (Doc. 2) no
later than Thursday, March 1, 2018. Any reply to the response must be filed and
served no later than Thursday, March 15, 2018. The motion will be taken under
submission on Friday, March 16, 2018.

Once the motion is taken under

submission, no further submissions related to the issues raised may be filed unless
the proponent obtains leave of court for good cause shown.

Unless otherwise

ordered, this motion is being submitted without oral argument. See Fed. R. Civ. P.
78(b); S.D. Ala. CivLR 7(h). Should the Court determine that oral argument will be
beneficial, a hearing will be set by separate order. “Oral argument requests must
contain specific reasons why oral argument would be helpful.” S.D. Ala. CivLR 7(h).
DONE and ORDERED this the 1st day of February 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE