Jacks v. Spencer et al

Filing 35

Magistrate Judge Marianne B. Bowler: ORDER entered. PROCEDURAL ORDER Re: Defendants' Renewed Motion to Dismiss (Docket Entry # 33 ). This court will convert the motion to a summary judgment motion under Rule 56. The parties are afforded up to and including March 31, 2016, to file any additional evidentiary material pertinent to the motion. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMES JACKS,
Plaintiff,
v.

CIVIL ACTION NO.
14-13072-MBB

LUIS SPENCER, THOMAS
DICKHAUT, JAMES SABA,
CAROL LAWTON and DENISE
McDONOUGH,
Defendants.
PROCEDURAL ORDER RE:
DEFENDANTS’ RENEWED MOTION TO DISMISS
(DOCKET ENTRY # 33)
March 16, 2016
BOWLER, U.S.M.J
Pending before this court is a motion to dismiss counts II
and VIII filed by defendants Luis Spencer, Thomas Dickhaut, James
Saba, Carol Lawton and Denise McDonough (“defendants”) under
Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”).
34).

(Docket Entry ## 33,

In seeking dismissal under Rule 12(b)(6), defendants rely

on two exhibits, including an affidavit, attached to the
memorandum in support of the motion.
Absent a conversion of the Rule 12(b)(6) motion to a motion
for summary judgment under Fed.R.Civ.P. 56 (“Rule 56”), it is
improper to consider the affidavit.

Accordingly, this court will

convert the motion to a summary judgment motion under Rule 56 in
accordance with the procedure in Rule 12(d).

The parties are

afforded a reasonable opportunity up to and including March 31,

2016, to file any additional evidentiary material pertinent to
the motion.

See Fed.R.Civ.P. 12(d).

not required, to file such material.

The parties may, but are
The parties are also

advised that on summary judgment this court will consider all of
the material already filed and in the record that falls within
the purview of Rule 56(c)(1)(A) material.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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