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Swires v. Incredible Scents, Inc.

United States District Court, Seventh Circuit

September 24, 2013

JUSTIN SWIRES, individually and on behalf of others similarly situated, Plaintiff,
v.
INCREDIBLE SCENTS, INC. Defendant.

MEMORANDUM AND ORDER

J. PHIL GILBERT DISTRICT JUDGE

This putative class action is about a nasal breathing product, Silent Snooz, manufactured by defendant Incredible Scents, Inc. (“IS”). Plaintiff Justin Swires claims the device does not live up to the representations IS made about Silent Snooz on its packaging. He believes that IS has violated the consumer fraud statutes of various states (Count I), breached express warranties (Count II) and was unjustly enriched by its deception (Count III).

This matter comes before the Court today on IS’s motion to dismiss Swires’ First Amended Complaint (Doc. 30). Swires has responded to the motion (Doc. 51), and IS has replied to that response (Doc. 52). The Court also considers Swires’ motion to strike IS’s motion to dismiss (Doc. 49), to which IS has responded (Doc. 53). The Court will first address Swires’ motion to strike, and then, if necessary, will address IS’s motion to dismiss.

I. Motion to Strike IS’s Motion to Dismiss (Doc. 49)

A. Motion to Strike IS’s Motion to Dismiss in its Entirety

IS filed its answer on February 13, 2013, at 4:24 p.m. and its motion to dismiss two minutes later, at 4:26 p.m. Swires asks the Court to strike IS’s motion to dismiss in its entirety because it was filed after IS’s answer, in violation of Federal Rule of Civil Procedure 12(b), which states that motions asserting the failure to state a claim as a defense “must be made before pleading if a responsive pleading is allowed.” Fed.R.Civ.P. 12(b).

IS argues that Swires has failed to show he was prejudiced from IS’s filing its motion to dismiss two minutes after filing its answer, a necessary finding before striking is appropriate under Federal Rule of Civil Procedure 12(f). In any case, IS urges the Court to construe its later-filed motion to dismiss as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).

The Court will not strike IS’s motion to dismiss simply because IS filed it after – in this case, two minutes after – its answer. It is true that Rule 12(b) provides that a motion asserting that the plaintiff has failed to state a claim “must be made before pleading if a responsive pleading is allowed.” However, Swires has identified no authority justifying striking in its entirety a late Rule 12(b)(6) motion.[1] In fact, when the Court encounters a late Rule 12(b)(6) motion, rather than striking it, the Court should construe the motion as a motion for judgment on the pleadings under Rule 12(c). Forseth v. Village of Sussex, 199 F.3d 363, 368 n.6 (7th Cir. 2000); Northern Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 n.3 (7th Cir. 1998). Essentially the same standard applies under both subsections of Rule 12. Hayes v. City of Chi., 670 F.3d 810, 813 (7th Cir.), cert. denied, 133 S.Ct. 353 (2012); Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). For this reason, the Court declines to strike IS’s motion in its entirety even though IS filed it after its answer and will instead consider the motion as a motion for judgment on the pleadings.

B. Motion to Strike Exhibits to the Motion to Dismiss

Before turning to the substance of IS’s motion, the Court must determine whether it will consider the exhibits attached to the motion and/or whether it should convert the motion to a summary judgment motion. IS’s motion refers to matters outside the pleadings, namely:

• Exhibit A purports to be a webpage about Silent Snooz;
• Exhibit B purports to be a “package flat, ” that is, a two-dimensional representation of all surfaces of the box in which Silent Snooz is sold;
• Exhibit C purports to be assessments of the effects of Silent Snooz on snoring and nasal resistance; and
• Exhibit D purports to be a patent for the Silent Snooz device.

Swires asks the Court to exclude the exhibits and the portions of IS’s brief that refer to them or, alternatively, to convert the motion to a summary judgment motion pursuant to Federal Rule of Civil Procedure 12(d) and deny that motion as premature. For its part, IS maintains that the Court may appropriately consider the exhibits to the motion to dismiss or, in the alternative, disregard the exhibits but still consider the motion.

When matters outside the pleadings are presented in connection with a Rule 12(c) motion for judgment on the pleadings, the Court may treat the motion as a motion for summary judgment or it may exclude the additional material from consideration. See Fed. R. Civ. P. 12(d). However, there are several exceptions to this general rule. For example, the Court may consider additional material where it is something of which the Court can take judicial notice, that is, where the material is generally known within the Court’s territorial jurisdiction or where it is capable of determination from sources the accuracy of which cannot reasonably be questioned, see Fed. R. Evid. 201(b). Menominee Indian Tribe of Wisc. v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998). Public records and judicial proceedings fall into this category of material the Court can consider. See Pugh v. Tribune Co., 521 F.3d 686, 691 n. 2 (7th Cir. 2008) (publicly reported stock price); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) ...


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