MD Helicopters Incorporated v. Boeing Company

Filing 45

ORDER: IT IS ORDERED that MDHI's notice of intent to provide live testimony at the hearing on its motion to dismiss for failure to state a claim, (Doc. 43 ), is DENIED [see attached Order for details]. Signed by Senior Judge James A Teilborg on 4/9/18. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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MD Helicopters Incorporated,
Plaintiff,

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ORDER

v.

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No. CV-17-02598-PHX-JAT

Boeing Company,

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Defendant.

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Pending before the Court is Plaintiff/Counterdefendant MD Helicopters, Inc.’s

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(“MDHI”) notice of intent to provide live testimony at the hearing on its motion to

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dismiss for failure to state a claim. (Doc. 43). Defendant/Counterclaimant The Boeing

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Company (“Boeing”) objects to the presentation of this testimony. (Doc. 44).

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Although stylized as a notice, this Court understands MDHI’s filing to be a motion

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to present live testimony. MDHI does not cite, and this Court cannot find, any authority

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allowing a party to present live testimony at an oral argument on a motion to dismiss for

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failure to state a claim. In resolving such a motion, a court may only consider the

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complaint, documents attached to the complaint, documents whose authenticity is not

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contested and upon which the complaint “necessarily relies,” and undisputed matters of

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public record. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001) (quoting

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Parrino v. FHP, Inc., 146 F.3d 699, 705–06 (9th Cir. 1998)). If a court considers any

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other information, the motion to dismiss is converted into a motion for summary

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judgment. Fed. R. Civ. P. 12(d).

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MDHI’s proposed live testimony is outside of the scope of what this Court may

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consider on a motion to dismiss for failure to state a claim. Furthermore, the Court

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declines to convert MDHI’s motion to dismiss into a motion for summary judgment.

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Accordingly,

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IT IS ORDERED that MDHI’s notice of intent to provide live testimony at the

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hearing on its motion to dismiss for failure to state a claim, (Doc. 43), is DENIED.
Dated this 9th day of April, 2018.

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