Cox v. Nueces County, Texas

Filing 80

ORDER granting 79 Unopposed MOTION for Extension of Time to File Response ( Brief due by 10/11/2013)(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ELMER COX,
Plaintiff,
VS.
NUECES COUNTY, TEXAS, et al,
Defendants.

§
§
§
§ CIVIL ACTION NO. 2:12-CV-339
§
§
§
§
ORDER

Pending is Plaintiff’s Unopposed Motion for Extension to File a Response.
(D.E. 79). United States District Judge Nelva Gonzales Ramos referred this case to the
undersigned United States Magistrate Judge to prepare a report and recommendation
on the Defendants’ motions to dismiss. (D.E. 61, 62).
Judge Ramos previously ordered Defendant Nueces County and Plaintiff to
submit additional briefing on the issue of whether the Nueces County Sheriff is the
final policymaking authority with regard to the relevant employment decisions at issue
in this case. (D.E. 75). Defendant Nueces County filed a supplement to its motion to
dismiss with attachments. (D.E. 78). Plaintiff has filed an unopposed motion seeking
an extension to file a response. (D.E. 79).

Plaintiff’s motion for extension is

GRANTED.
The parties are notified that the Court is going to consider the attachments
submitted by Defendant Nueces County in its Supplement to Motion to Dismiss (D.E.
1/3

78). When considering a motion to dismiss under the 12(b)(6) standard, a court cannot
look beyond the pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.1999);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). When a party presents “matters
outside the pleading” with a Rule 12(b)(6) motion to dismiss, the Court has “complete
discretion” to either accept or exclude the evidence for purposes of the motion to
dismiss. Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 196 & n. 3 (5th
Cir.1988); accord Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 Fed.
App'x 775, 783 (5th Cir.2007). However, “[i]f ... matters outside the pleading are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56”, and “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P.
12(d).
Because the Court finds that consideration of Defendant Nueces County’s
exhibits is likely to facilitate the disposition of the case, it exercises its complete
discretion to accept them. Consequently, Defendant Nueces County’s motion to
dismiss is converted to one for summary judgment under Rule 56, and the parties will
be provided with the procedural safeguards for Rule 56 motions. See Fed.R.Civ.P.
12(d).
Plaintiff may file a brief and any evidence that demonstrates why summary
judgment should not be granted in favor of Defendant Nueces County on or before
Friday, October 11, 2013.

2/3

For purposes of clarity, the motion to dismiss by

Defendant Sheriff Kaelin did not include evidence and shall be considered under the
motion to dismiss standard. A hearing on the pending motions will be set after the
October 11, 2013 deadline.
ORDERED this 2nd day of October, 2013.

___________________________________
Jason B. Libby
United States Magistrate Judge

3/3