Ellering et al v. Sellstate Realty Systems Network, Inc. et al

Filing 95

ORDER DENYING AS MOOT 72 Motion to Dismiss and Defendants Reply Memorandum in support of their summary-judgment Motion shall not exceed 4,162 words. (Written Opinion). Signed by Judge Richard H. Kyle on 05/20/11. (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

John Ellering, et al.,
Plaintiffs,
Civ. No. 10-1025 (RHK/LIB)
ORDER
v.
Sellstate Realty Systems Network, Inc.,
et al.,
Defendants.

This matter is before the Court sua sponte.
This action arises out of an agreement between Plaintiffs John and Karen Ellering
and Defendant Sellstate Realty Systems Network, Inc. (“Sellstate”), a real-estate
franchise company, granting the Ellerings the exclusive right to sell Sellstate franchises
in Minnesota. The Ellerings and two related entities (collectively, “Plaintiffs”) have sued
Sellstate and two of its officers (collectively, “Defendants”), asserting in their First
Amended Complaint eight claims sounding in fraud, breach of contract, and violation of
various state statutes.
On May 11, 2011, Defendants filed a Motion to Dismiss (Doc. No. 72) Count VIII
of Plaintiffs’ First Amended Complaint; they filed a nine-page Memorandum in support
of their Motion that same day (Doc. No. 74). On May 17, 2011, Defendants filed a
Motion for Summary Judgment (Doc. No. 83) on all of Plaintiffs’ claims, along with a
supporting Memorandum (Doc. No. 85). In that Memorandum, Defendants

“incorporate[d] the arguments contained in their Motion to Dismiss” Count VIII without
repeating those arguments therein. (See id. at 17.) Meanwhile, Plaintiffs cross-moved
for summary judgment on Count VIII on May 17, 2011. (See Doc. No. 88.)
By separately moving to dismiss Count VIII and then incorporating by reference
the arguments from that Motion into their Motion for Summary Judgment, Defendants
could easily avoid Local Rule 7.1(d)’s 12,000-word limit for dispositive motions. The
Court does not believe this is appropriate. Indeed, Local Rule 7.1(b)(4) provides that
“[m]ultiple motions for summary judgment (or partial summary judgment) filed by a
single party at or about the same time will be considered as a single motion for purposes
of” the word limitation. Accordingly, the Court will count the 1,951 words in
Defendants’ Memorandum in Support of their Motion to Dismiss (Doc. No. 74) toward
the 12,000-word limit. When combined with the 5,887 words in Defendants’
Memorandum in Support of their Motion for Summary Judgment (Doc. No. 85), they
have expended 7,838 words, leaving them 4,162 remaining.
Moreover, now that Defendants have incorporated their dismissal arguments into
their Motion for Summary Judgment, the Motion to Dismiss has been rendered moot.
The parties should address the arguments contained in the Motion to Dismiss as part of
their summary-judgment submissions.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that (1) Defendants’ Motion to Dismiss (Doc. No. 72) is DENIED AS
MOOT and (2) Defendants’ Reply Memorandum in support of their summary-judgment

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Motion shall not exceed 4,162 words.

Dated: May 20, 2011

s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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