Pace v. Hurst Boilers & Welding Co.

Filing 17

ORDER converting 5 Motion to Dismiss Complaint to a Motion for Summary Judgment. Additional documents may be filed not later than 12/30/2010. Ordered by Judge Hugh Lawson on 12/14/2010. (nbp)

Pace v. Hurst Boilers & Welding Co.

Doc. 17

IN THE UNITED STATES DISTRICT COURT M ID D L E DISTRICT OF GEORGIA V A L D O S T A DIVISION W IL L IE PACE, Plaintiff, C iv il Action No. 7:10-CV-116 v. H U R S T BOILER & WELDING CO., Defendant. ORDER T h is action is before the Court on Defendant's Motion to Dismiss (Doc. 5). R u le 12(d) of the Federal Rules of Civil Procedure provides: "If, on a motion under R u le 12(b)(6) or 12(c), matters outside the pleadings are presented to and not e x c lu d e d by the court, the motion must be treated as one for summary judgment u n d e r Rule 56. All parties must be given a reasonable opportunity to present all the m a te ria l that is pertinent to the motion." U p o n review of Defendant's Motion to Dismiss, the Court has discovered that D e fe n d a n t is relying on matters outside the pleadings, specifically an affidavit from D a rle n e Hobbs, to support its Motion.1 Thus, the Court finds it is appropriate to c o n v e rt Defendant's Motion to a motion for summary judgment under Federal Rule o f Civil Procedure 56. The parties shall file any additional documents that they deem p e rtin e n t to the issues raised in Defendants' Motion by December 30, 2010.
1

W h ile Defendant is also relying on documents from Plaintiff's bankruptcy case, th e Court can take judicial notice of those documents.

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Plaintiff is advised that the granting of this motion would represent a final a d ju d ic a tio n of this action which may foreclose subsequent litigation on this matter. S e e Somerville v. Hall, 2 F.3d 1563, 1564 (11th Cir. 1993); Griffith v. Wainwright, 7 7 2 F.2d 822 (11th Cir. 1985). It is important to note that, except in certain c irc u m s ta n c e s , a person against whom a motion for summary judgment is filed may n o t rely on the allegations of his pleadings. In other words, a plaintiff against whom a motion for summary judgment is filed must oppose that motion by affidavits, d e p o s itio n s , answers to interrogatories, admissions, or as otherwise provided in the ru le s . If a party against whom a motion for summary judgment is filed fails to re s p o n d , the materials filed by the moving party may be taken as true.

SO ORDERED, this 14th day of December, 2010. s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE

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