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)

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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 2

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