The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 18). The motion to dismiss refers to matters outside the pleadings, specifically, an affidavit by Naresh Patel, president of the defendant corporation. When such material is presented in connection with a Rule 12(b)(6) motion to dismiss, the Court may treat the motion to dismiss as a motion for summary judgment or it may exclude the additional material from consideration. See Fed. R. Civ. P. 12(d). In this case, the Court believes consideration of the matters outside the pleadings may expedite the disposition of this case. Therefore, the Court gives the plaintiff NOTICE that the Court will construe the defendants' motion as a motion for summary judgment under Federal Rule of Civil Procedure 56.
Neither the motion nor the brief in support explained to the plaintiff, who is proceeding pro se, the consequences of failing to respond adequately to the motion. A pro se litigant is entitled to a plainly-worded notice of the consequences of failing to respond to a motion for summary judgment. Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992); see Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982). "[T]his notice should include both the text of Rule 56(e) and a short and plain statement in ordinary English that any factual assertion in the movant's affidavits will be taken as true by the district court unless the non-movant contradicts the movant with counter-affidavits or other documentary evidence." Timms, 953 F.2d at 285; accord Lewis, 689 F.2d at 102.
The plaintiff has not received the appropriate notice. Therefore, by this order, the Court hereby gives NOTICE to the plaintiff that the Court will take as true any fact alleged in the defendant's affidavits unless the plaintiff contradicts that fact with counter-affidavits or other documentary evidence. If the plaintiff fails to contradict the facts alleged by the defendant, the Court may grant judgment in favor of the defendant and may dismiss this case. Rule 56 reads as follows:
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(2) Objection That a Fact Is Not Supported by Admissible Evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or ...