Spann v. Southern Fidelity Insurance Company et al
ORDER dismissing without prejudice 54 Motion to Dismiss; dismissing as moot 71 Motion for Leave to File; dismissing as moot 72 Motion to Continue; dismissing as moot 72 Motion for Extension of Time to File Response/Reply ; dismissing as moot 73 Motion to Expedite. Signed by Judge Lance M Africk on 5/5/2016. (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SOUTHERN FIDELITY INSURANCE
COMPANY, ET AL.
The Court has pending before it a “motion to dismiss”1 filed by defendant, Southern Fidelity
Insurance Company (“SFIC”), noticed for submission on May 4, 2016. On May 3, 2016, one day
before the submission date of SFIC’s motion to dismiss, the Court received three more motions: (1)
a motion2 filed by SFIC to file a supplemental memorandum and exhibits in further support of its
motion to dismiss, (2) an opposed motion3 for an extension of time to file a response filed by
plaintiff, Corry Spann (“Spann”), and (3) a motion4 to expedite consideration of the motion for an
extension of time to file a response.
The procedural posture of this matter has been unnecessarily complicated by both parties.
Although SFIC filed what it characterizes as a motion to dismiss, substantial materials outside the
pleadings are attached to and cited in the motion. Such materials are outside the scope of a motion
to dismiss and SFIC should have filed a motion for summary judgment. See, e.g., NiGen Biotech,
L.L.C. v. Paxton, 804 F.3d 389, 398 (5th Cir. 2015) (observing that a motion “seems to rely on
R. Doc. No. 54.
R. Doc. No. 71.
R. Doc. No. 72.
R. Doc. No. 73.
discovery and matters outside the pleadings, suggesting that the entire record must be consulted,
which is the province of summary judgment rather than a 12(b)(6) motion”). On the other hand,
plaintiff did not timely file an opposition to SFIC’s motion, nor did he request an extension until the
day before the motion was scheduled to be taken under submission.
Before the Court can consider the extraneous materials submitted by SFIC, 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); see also McClaine v. Boeing Co., 544 F. App’x 474, 476 n.3 (5th Cir. 2013) (“If
the district court converts a motion to dismiss to a motion for summary judgment sua sponte, it must
provide notice to the parties and an opportunity to respond.”). However, the record with respect to
SFIC’s motion is already fragmented and would become even more so with further supplemental
In the interest of judicial efficiency, clarification of the record, and providing plaintiff a full
opportunity to respond to the issues, the Court finds it appropriate to deny SFIC’s mis-labeled
motion to dismiss, without prejudice to SFIC’s right to timely file a motion for summary judgment
consistent with the Federal Rules of Civil Procedure and this Court’s rules. The remaining motions
are mooted by dismissal of SFIC’s motion to dismiss.
IT IS ORDERED that SFIC’s motion to dismiss is DISMISSED WITHOUT
PREJUDICE to SFIC’s right to timely file a motion for summary judgment consistent with the
Federal Rules of Civil Procedure and this Court’s rules. Accordingly,
IT IS FURTHER ORDERED that SFIC’s motion to file a supplemental memorandum and
plaintiff’s motion for an extension of time to respond and motion to expedite consideration of the
motion for an extension of time to respond are DISMISSED AS MOOT.
New Orleans, Louisiana, May 5, 2016.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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