Mary Williams et al v. America's Servicing Company - ASC

Filing 23

OPINION AND ORDER granting 22 Request for ruling on pending motion without response to the extent that the Court will rule in due course, with or without a response, as the docket permits. Plaintiffs may file a response to the 18 Motion to Dismi ss, along with any exhibits, within 14 days, for the court to consider if matters outside the pleadings are considered. The parties are hereby notified that the motion may be converted to one for summary judgment. See Opinion and Order for details. Signed by Judge John E. Steele on 7/9/2010. (RKR)

Mary Williams et al v. America's Servicing Company - ASC

Doc. 23

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION MARY WILLIAMS WILLIAMS, and LESLIE RANDALL

Plaintiffs, vs. AMERICA'S SERVICING COMPANY - ASC, Defendant. ___________________________________ OPINION AND ORDER This matter comes before the Court on defendant's Request for Ruling on Pending Motion Without Response (Doc. #22) filed on July 8, 2010. Defendant requests that the Court rule on its Motion to Case No. 2:09-cv-775-FtM-29DNF

Dismiss Plaintiffs' Complaint (Doc. #18) as plaintiffs have not responded and the time to do so has expired. Under Middle District of Florida Local Rule 3.01(b), "[e]ach party opposing a motion or application shall file within fourteen (14) days after service of the motion or application a response that includes a memorandum of legal authority in opposition to the request, all of which the respondent shall include in a document not more than twenty (20) pages." The Court notes that plaintiffs

are proceeding pro se, that is unrepresented by counsel, and therefore may not be aware of the need to respond. As a result, notice and an opportunity to respond will be provided. Mitchell v. Inman, 682 F.2d 886, 887 (11th Cir.

1982)(the failure to respond should not serve as a basis for

Dockets.Justia.com

dismissal when there is nothing to indicate that plaintiffs had notice of a Local Rule requiring response). The Court notes that

defendant attached documents outside the pleadings to the Motion to Dismiss (Doc. #18). "If the parties present evidence outside of

the pleadings, and the district court considers that evidence, then the motion to dismiss is converted into a motion for summary judgment. [ ] It is clearly the law in this circuit that whenever a district judge converts a 12(b)(6) motion to dismiss into one for summary judgment by considering matters outside the pleadings the judge must give all parties ten-days notice that he is so

converting the motion."

Lewis v. Asplundh Tree Expert Co., 305

Fed. Appx. 623 (11th Cir. 2008)(internal citations and quotations omitted). This is a bright-line rule that is strictly enforced,

Jones v. Automobile Ins. Co. of Hartford, Conn., 917 F.2d 1528, 1532 (11th Cir. 1990), with one exception: If the extrinsic

document is central to the plaintiff's claim and the authenticity of the document is not challenged, SFM Holdings, Ltd. v. Banc of Am. Securities, LLC, 600 F.3d 1334, 1337 (11th Cir. 2010)(citations omitted). Accordingly, it is now ORDERED: 1. Plaintiffs may file a response to the defendant's Motion

to Dismiss Plaintiffs' Complaint (Doc. #18) within FOURTEEN (14) DAYS of this Order, along with any exhibits they wish to have the

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Court consider, if matters outside the pleadings are considered. If no response is filed, the Court will proceed to rule without the benefit of a response and without further notice. 2. The parties are hereby NOTICED that the motion to dismiss See Fed. R. Civ. P.

may be converted to one for summary judgment. 12(d).

Federal Rule of Civil Procedure 56(c) states as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. (3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record. (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. 3. Defendant's Request for Ruling on Pending Motion Without

Response (Doc. #22) is GRANTED to the extent that the Court will
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rule on the motion in due course, with or without a response, as the docket permits. DONE AND ORDERED at Fort Myers, Florida, this July, 2010. 9th day of

Copies: Parties of record

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