IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
April 11, 2007
JEREMY BARTON, SPECIAL ADMINISTRATOR OF THE ESTATE OF FRANKLIN BARTON, JR., DECEDENT, PLAINTIFF,
RANDOLPH COUNTY, EVERCOM, INC., AND PBG, INC., DEFENDANTS.
The opinion of the court was delivered by: J. Phil Gilbert District Judge
MEMORANDUM AND ORDER
This cause coming to be heard on the plaintiff's Motions for Extension of Time to file a response to defendant Evercom's, Motion to Dismiss for Failure to State a Claim under Federal Rule of Civil Procedure 12(b)(6) (Docs. 32 & 34). Plaintiff Jeremy Barton asks for additional time to complete discovery and obtain affidavits to refute the motion to dismiss.
The Court is given pause by this request. Ordinarily, the Court cannot consider matters outside the pleadings when deciding a motion under Rule 12(b)(6), so if the pending motion is considered under Rule 12(b)(6), the plaintiff has no need to attach materials to his response. However, where such material is presented in connection with a Rule 12(b)(6) motion to dismiss, the Court may convert the motion to dismiss into a motion for summary judgment and consider the additional matters. Such a course is appropriate in this case. The Court notes that Evercom has attached to its motion matters outside the pleading, and the Court believes that consideration of those matters may aid in the expeditious resolution of this case.
For these reasons, the Court CONVERTS the pending Rule 12(b)(6) motion (Doc. 25) into a Rule 56 summary judgment motion and DIRECTS the parties to respond and to reply, if a reply is necessary, accordingly. The Court further GRANTS the plaintiff's motion for an extension of time to respond (Docs. 32 & 34) and ORDERS that he shall have up to and including May 18, 2007, to respond to the summary judgment motion.
IT IS SO ORDERED.
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