United States District Court, S.D. Illinois
ORDER AND FEDERAL RULE OF CIVIL PROCEDURE 56
REONA J. DALY UNITED STATES MAGISTRATE JUDGE
in this matter have filed a motion to dismiss, or, in the
alternative, motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56 in which they argue that they are
entitled to judgment as a matter of law on one or all of
Plaintiff's claim(s) (see Doc. 20). With regard
to Defendants' motion, although styled as a motion to
dismiss, Defendants attached materials outside the pleadings
in support of their argument. Accordingly, Plaintiff must
“be given reasonable opportunity to present all
material made pertinent to the motion.” Fed.R.Civ.P.
12(d); See Venture Associates Corp. v. Zenith Data
Systems Corp., 987 F.2d 429, 431 (7th Cr. 1993). Hence,
Plaintiff is ADVISED that the Court intends
to convert the motion to dismiss to a motion for summary
judgment and is DIRECTED to respond and
submit any materials relevant to this issue by
February 2, 2018.
pro se litigant, a person who is not represented by
counsel in this matter, you are entitled to notice of the
consequences of failing to respond to the motions for summary
judgment. Timms v. Frank, 953 F.2d 281 (7th Cir.
1992); Lewis v. Faulkner, 689 F.2d 100 (7th Cir.
1982). Federal Rule of Civil Procedure 56 provides, in
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
(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.
(2) Objection That a Fact Is Not Supported by
Admissible Evidence. 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.
(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
declarant is competent to testify on the matters stated.
(e) Failing to Properly Support or Address a
Fact. If a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact as ...