McBride v. GoDaddy.com, Inc. et al

Filing 73

ORDER denying without prejudice to refiling 58 Motion to Dismiss or for Transfer of Venue; Defendants are instructed to re-file the motion as a motion for summary judgment pursuant to Rule 56. Signed by Honorable Harry F. Barnes on September 30, 2008. (cap)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION BARRY CRABB and MATTHEW McBRIDE, Individually and as Class Representatives on Behalf of All Similarly Situated Persons VS. GODADDY.COM, INC. and THE GO DADDY GROUP, INC. ORDER Before the Court is a Motion to Dismiss Plaintiffs' First Amended Complaint or For Transfer of Venue, filed on behalf of Defendants GoDaddy.com, Inc. and The Go Daddy Group, Inc. (Doc. 58). Plaintiffs have responded in opposition. (Doc. 63). Defendants have replied to Plaintiffs' response. (Doc. 65). In the course of briefing the motion, Defendants included and rely upon, among other things, the Declarations of Ben Butler, (Doc.57-3) Nate Curran, (Doc. 57-8) Teri Dhooge, (Doc. 57-10) Pam Bunn, (Doc. 57-11) Larry Hartman, (Doc. 57-12) and Ron Hertz (Doc. 48). Additionally, Defendants include a Parked Page Service Agreement (Doc. 57-7) as an exhibit to the motion. In their response, Plaintiffs request that the Court treat the motion to dismiss as one for summary judgment, giving them an opportunity to present pertinent material in response. Upon review, the record reveals that Defendants have presented matters outside the pleadings which the Court cannot exclude from consideration. Under Fed. R. Civ. P. 12(d), Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint or For Transfer of Venue must be treated as one for summary judgment under Rule 56. Rule 12(d) further provides that "[a]ll parties must be CASE NO. 4:07-CV-4040 PLAINTIFFS

DEFENDANTS

given a reasonable opportunity to present all material that is pertinent to the motion." Accordingly, Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint or For Transfer of Venue should be and hereby is DENIED WITHOUT PREJUDICE TO REFILING. Defendants are instructed to re-file the Motion to Dismiss Plaintiffs' First Amended Complaint or For Transfer of Venue as a motion for summary judgment pursuant to Rule 56. The Court will afford Plaintiffs a reasonable opportunity to present all material pertinent to the motion. IT IS SO ORDERED, this 30th day of September, 2008. /s/Harry F. Barnes Hon. Harry F. Barnes United States District Judge

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