InVue Security Products, Inc. v. Halo Metrics, Inc.

Filing 23

ORDER granting 18 Motion to Strike 13 Affidavit. Signed by Senior Judge Graham Mullen on 10/20/2015. (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:15-CV-00186-GCM
INVUE SECURITY PRODUCTS, INC.,
Plaintiffs,
v.
HALO METRICS, INC.,
Defendants.

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ORDER

THIS MATTER is before the Court on Plaintiff’s motion to strike the affidavit attached
to Defendant’s motion to dismiss. Plaintiff filed suit against Defendant on April 28, 2015, and
Defendant moved to dismiss. (Doc. No. 1 & 12) Defendant attached to its motion an affidavit by
its Vice President of Sales, Marketing and Operations. (Doc. No. 13) Plaintiff moved to strike
the affidavit, arguing that its submission was procedurally improper and that it contained several
legal conclusions. (Doc. No. 14) Defendant filed a response offering to withdraw the affidavit.
(Doc. No. 22)
It appears to the Court that Plaintiff is correct. The Court cannot consider the affidavit
attached to Defendant’s Answer without converting its motion to dismiss into a motion for
summary judgment. Fed. R. Civ. P. 12(d); Waugh Chapel S., LLC v. United Food &
Commercial Workers Union Local 27, 728 F.3d 354, 360-61 (4th Cir. 2013). Thus, the
Plaintiff’s motion is GRANTED.
SO ORDERED.
Signed: October 20, 2015