Jackson v. Salt City Kitchen and Bath et al
MEMORANDUM DECISION AND ORDER denying 10 Motion to Dismiss for Failure to State a Claim. Signed by Judge Tena Campbell on 7/17/17 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
SALT CITY KITCHEN AND BATH,
INC., a Utah Corporation;
COUNTERWISE, INC., a Wyoming
Corporation; TRAVIS HARPER, an
Individual; KELLEY HARPER, an
Individual; and ARTISTIC MILL,
INC., a Utah Corporation,
Case No. 2:16-CV-01137
Judge Tena Campbell
Salt City Kitchen and Bath, Inc. (SCKB), Counterwise, Inc., Travis Harper,
and Kelly Harper (collectively, Defendants) moved to dismiss Isabel Jackson’s
complaint. Defendants argue that SCKB does not qualify as a Title VII employer,
because it does not employ fifteen or more workers. (Defs.’ Mot. to Dismiss 2,
ECF No. 10.)
After Defendants filed their motion to dismiss, the parties “agreed to
conduct limited discovery on the numerosity issue”—in other words, whether
SCKB qualifies as a Title VII employer. (Defs.’ Reply in Supp. of Mot. to
Dismiss 2, ECF 31.) Once the parties had conducted discovery, Ms. Jackson
responded to the motion to dismiss, contending that a genuine dispute of material
fact exists as to whether SCKB qualifies as a Title VII employer. To support this
contention Ms. Jackson attached interrogatory responses she received from
In their reply, Defendants also relied on material outside of the pleadings.
Defendants now ask the court to convert their motion into one for summary
judgment. Defendants direct the court, for the first time, to tables and quarterly
reports, asserting that these materials establish that SCKB does not qualify as a
Title VII employer.
When “considering a Rule 12(b)(6) motion, a court can only consider the
facts alleged in the complaint.” Dobson v. Anderson, 319 F. App’x 698, 701
(10th Cir. 2008). When the parties rely on material outside the pleadings in their
briefing, the court may convert the motion to dismiss into a motion for summary
judgment. Id.; see also Fed. R. Civ. P. 12(d). However, when a court converts a
motion to dismiss into one for summary judgment, the court must afford all
parties “a reasonable opportunity to present all the material that is pertinent to the
motion.” Fed. R. Civ. P. 12(d). And courts have broad discretion in determining
whether or not to make such a conversion. Lowe v. Town of Fairland, Okl., 143
F.3d 1378, 1381 (10th Cir. 1998) (citing 5A Charles Alan Wright & Arthur R.
Miller, FEDERAL PRACTICE AND PROCEDURE § 1366 (1990)).
Here, both parties rely on material outside of the pleadings. In fact, in their
reply brief, Defendants assert facts never before raised. As a result, Ms. Jackson
has not had an opportunity to respond to these factual assertions. Though the
court could convert Defendants’ motion into one for summary judgment, the
court acknowledges the factual nature of the parties’ arguments and the
requirement that parties on summary judgment be given a “reasonable
opportunity to present all the material that is pertinent.” Fed. R. Civ. P. 12(d).
Moreover, the court notes that the local rules on summary-judgment motions are
designed to facilitate the resolution of such motions. See DUCivR56-1. Those
rules include specific requirements for structuring summary-judgment briefing.
Rather than converting this motion into one for summary judgment without
the benefits of the structured briefing required by the local rules, the court
exercises its discretion and DENIES Defendants’ motion (ECF No. 10). The
court instructs Defendants to file a motion for summary judgment in accordance
with DUCivR56-1, if they believe it appropriate. Such a motion will provide the
parties with a reasonable opportunity to present the pertinent material in support
of their arguments.
DATED this 17th day of July, 2017.
BY THE COURT:
U.S. District Court Judge
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