The Advocacy for Consumer Rights, LLC v. Rhode, et al

Filing 23

ORDER denying 12 Motion to Dismiss for Failure to State a Claim and denying 14 Motion for Sanctions - The court now has cause to revisit its ruling July 2, 2014, and release the stay put into effect. Defendants' response to the amended co mplaint has not yet been made. Upon that response, unless good cause be shown why a further stay should be imposed, separate order will issue in the form of the court's initial order on scheduling, triggering the parties' scheduling conference activities. Signed by District Judge Louise Wood Flanagan on 07/30/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-215-FL

THE ADVOCACY FOR CONSUMER
RIGHTS, LLC,
Plaintiff,
v.
STEVE RHODE, JOHN DOES I-X, JANE
DOES I-X, ABC PARTNERSHIPS I-X,
DEF LIMITED LIABILITY COMPANIES
I-X, and XYZ CORPORATIONS I-X,
Defendants.

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ORDER

This matter comes now before the court upon defendants’ motion to dismiss for failure to
state a claim (DE 12), and motion for sanctions (DE 14). Plaintiff has responded through amended
complaint (DE 18) and in separate responses (DE 21, 22). While reply time has not yet run, in its
discretion the court dispenses with any reply.
As plaintiff notes, there is adhered to the instant motion to dismiss a plethora of ancillary
materials on which defendants rely and to which it objects. The court finds the issues raised under
Rule 12 by defendants are not susceptible to decision thereunder where defendants have swept well
outside the bounds of the complaint in their presentation. Rather, in order to proceed, the motion
would have to be converted to a Rule 56 motion.
No doubt, in that event, plaintiff then would urge the court to stay briefing and its decision
pending conduct of discovery. No doubt, too, defendants would seek to supplement their motion

with additional materials and new arguments.
In short, conversion at this time would not comport with the mandate of Rule 1. For all of
these reasons, the motion to dismiss (DE 12) is DENIED. At this juncture in the case, good cause
is not shown for imposition of sanctions as requested, and, therefore, that motion (DE 14) is
DENIED as well.
The court now has cause to revisit its ruling July 2, 2014, and release the stay put into effect.
Defendants’ response to the amended complaint has not yet been made. Upon that response, unless
good cause be shown why a further stay should be imposed, separate order will issue in the form of
the court’s initial order on scheduling, triggering the parties’ scheduling conference activities.
SO ORDERED, this the 30th day of July, 2014.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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