Cummings v. Douberly

Filing 12

ORDER converting Defendant's 5 MOTION to Dismiss into a Motion for Summary Judgment. The Parties are directed to supplement the record, within 10 days, with any materials relevant to the tolling and statute of limitations issues raised in Defendant's Motion to Dismiss (Doc. no. 5) and the parties' subsequent briefing (Doc. nos. 8, 11). Signed by Chief Judge Lisa G. Wood on 5/22/2015. (ca)

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KATRINA CUMMINGS,
Plaintiff,
CV 214-152

V.

JAMES RICHARD DOUBERLY,
Defendant.

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Plaintiff Katrina Cummings seeks to renew her dismissed
complaint alleging violations of her constitutional rights
against Defendant James Richard Douberly. See Dkt. no. 1. This
Court dismissed Plaintiff's original complaint without prejudice
in a prior action because Plaintiff failed to show proof that
she had effectuated timely service on Defendant. She now comes
before the Court with proof of untimely service on Defendant,
and Defendant has moved to dismiss the Renewed Complaint as
time-barred. Dkt. no. 5.
Generally, a statute of limitations defense is an
affirmative defense that must be pled. See Fed. R. Civ. P. 8(c).
"However, failure to comply with the statute of limitations may
be raised on a motion to dismiss for failure to state a claim
AO 72A
(Rev. 8182)

for which relief can be granted under Fed. R. Civ. P. 12(b) (6),
when failure to comply with the statute of limitations is plain
on the face of the complaint." Foster v. Savannah Commc'n, 140
F. App'x 905, 907 (11th Cir. 2005) (citing AVCO Corp. v.
Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir. 1982)).
Plaintiff submitted a copy of the Summons directed to
Defendant Douberly in the prior case as an attachment to her
response to Defendant's motion to dismiss. See Dkt. no. 8-1. It
is not attached to the Complaint. A district court is usually
limited to reviewing only the allegations on the face of the
complaint in considering a motion to dismiss for failure to
state a claim. However, Rule 12(d) provides:
If, on a motion under Rule 12(b) (6) or 12(c), 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. All parties
must be given a reasonable opportunity to present all
the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d). When a district court converts a motion
to dismiss into a motion for summary judgment, it must comply
with the requirements of Rule 56 by notifying the parties of the
conversion and providing 10 days for the parties to supplement
the record accordingly. Trustmark Ins. Co. v. ESLU, Inc., 299
F.3d 1265, 1267 (11th Cir. 2002)
Because Plaintiff, as the nonmovant, has provided
extraneous documents for the Court's consideration, the Court

AO 72A
(Rev. 8/82)

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will convert Defendant's Motion to Dismiss into a Motion for
Summary Judgment. The parties are DIRECTED to supplement the
record, within 10 days, with any materials relevant to the
tolling and statute of limitations issues raised in Defendant's
Motion to Dismiss (Dkt. no. 5) and the parties' subsequent
briefing (Dkt. nos. 8, 11).'

SO ORDERED, this 22ND day of May, 2015.

LISA GODBEY W OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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Because the Court is limiting this Motion for Summary Judgment strictly to
the questions raised in Defendant's Motion to Dismiss, Defendant will have
leave to file a second motion for summary judgment based on other legal
theories if the Court denies the present motion.
A072A
(Rev. 8/82)

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