Retirement Committee of DAK Americas LLC, et al v. Smith, et al

Filing 161

ORDER dismissing as moot 54 Motion to Dismiss for Failure to State a Claim - Signed by District Judge Louise Wood Flanagan on 03/02/2015. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-36-FL
RETIREMENT COMMITTEE OF DAK
AMERICAS LLC, as Plan Administrator
of the DAK Americas LLC Pension Plan;
and TRANSAMERICA RETIREMENT
SOLUTIONS CORPORATION,
Plaintiffs,
v.
DAVID W. ALLEN, MICHAEL LYNN
BASS, JOSEPH ALEXANDER
BELLAMY, MARK STEPHEN
BREWER, JEROME BRYANT,
HAROLD E. CORBETT, KELVIN L.
GALLOWAY, WARREN ALBERT
GARRISON, JAMES F. HOLLAND,
WILLIAM LACEY NELSON, SIDNEY
HUGH RHODES, JIMMIE RAY
SELLERS, MENDELL W. SMITH,
RODNEY B. SMITH, and OTELLA
IRENE WEBB,
Defendants.

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ORDER

This matter comes before the court on motion by defendant Rodney B. Smith to dismiss for
failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil
Procedure 12(b)(6) (DE 54). Plaintiff responded to the motion and defendant Smith replied. In this
posture, the motion to dismiss is ripe for ruling. However, defendant Smith also recently filed, on
February 17, 2015, a motion for summary judgment (DE 130). In his memorandum in support
thereof, defendant Smith references and incorporates the arguments made in support of his motion
to dismiss, while also raising further facts and details in support of his motion for summary

judgment. (See, e.g., DE 139 at 10-11, 27 n. 3). Where defendant Smith’s arguments in support of
summary judgment reference and incorporate the arguments made in support of his motion to
dismiss, in the interest of efficient administration of the court’s docket, the court will consider
defendant Smith’s arguments raised in support of his motion to dismiss also in support of his motion
for summary judgment. Accordingly, the court DISMISSES AS MOOT defendant Smith’s motion
to dismiss (DE 54).
SO ORDERED, this the 2nd day of March, 2015.

_____________________________
LOUISE W. FLANAGAN
United States District Judge