Barfield v. Engh et al

Filing 24

ORDER - Defendants' Rule 12(b)(6) motion 21 will be treated as one under Rule 56. The parties have until January 17, 2017, to submit all pertinent material to the Court. Ordered by Senior Judge Lyle E. Strom. (KLF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
JIMMY BARFIELD,

)
)
Plaintiff,
)
)
v.
)
)
KERMIT R. ENGH, FASHION
)
CLEANERS and DOES 1-5,
)
INCLUSIVE,
)
)
Defendants.
)
______________________________)

8:16CV22

ORDER

This matter is before the Court on the motion of Kermit
R. Engh, Fashion Cleaners, and Does 1-5 (“defendants”) to dismiss
pursuant Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6)
(Filing No. 21).

On November 15, 2016, defendants filed the

present motion, accompanying brief, and index in support of the
motion containing attached declarations and evidence to support
the motion (Filing Nos. 21, 22, and 23).

The plaintiff, Jimmy

Barfield (“plaintiff” or “Barfield”), failed to file an opposing
brief in accordance with NECivR 7.1(b)(1)(B).

However, plaintiff

attached a “Site Survey & ADA Evaluation” report to the first
amended complaint (Filing No. 20-1).
When parties present material outside the pleadings and
the Court does not exclude them from consideration, the Court
must treat a Rule 12(b)(6) motion as one for summary judgement
under Rule 56.

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

In the event the Court

converts a Rule 12(b)(6) motion to one for summary judgment, the
parties are entitled a reasonable opportunity to present all the
material that is pertinent to the motion.

Id.

Because the

parties have presented material outside of the pleadings for the
Court’s consideration, the Court will treat this motion as one
under Rule 56.

The parties will have until January 17, 2017, to

submit all pertinent material to the Court.
Defendants have also moved for dismissal under Rule
12(b)(1) arguing plaintiff lacks standing and Barfield’s claims
are moot (Filing No. 22 at 1).

The Court will reserve ruling on

defendants’ Rule 12(b)(1) arguments pending all pertinent
material being submitted to the Court.

Accordingly,

IT IS ORDERED:
1) Defendants’ Rule 12(b)(6) motion will be treated as
one under Rule 56.
2) The parties have until January 17, 2017, to submit
all pertinent material to the Court.
DATED this 3rd day of January, 2017.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court