Opinion
SUPERIOR COURT CIVIL ACTION Docket No. CV-16-189
08-09-2016
GARY CURTIS, Plaintiff v. MEGAN STOVER, Defendant
STATE OF MAINE
CUMBERLAND, ss ORDER ON DEFENDANT'S MOTION TO DISMISS
Before the court is defendant's motion to dismiss plaintiff's complaint for unjust enrichment and conversion. Attached to the motion are 15 exhibits. The exhibits are not all official public documents, documents that are central to plaintiff's claims, or documents that are referred to in the complaint, which may be considered on a motion to dismiss. See Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶¶ 8-10, 843 A.2d 43.
Although defendant included a statement of material facts in her motion, plaintiff responded in opposition with a memorandum of law only. Accordingly, the court does not have the procedural benefits provided through a motion for summary judgment. See 2 Harvey & Merritt, Maine Civil Practice § 12:13 at 429 (3d, 2015-2016 ed.) ("It is advisable . . . for the lawyer to make a motion for summary judgment labeled as such, where he knows that matter outside the pleadings will be needed to sustain his position.").
Defendant argues, among other things, that plaintiff's complaint fails to state a claim upon which relief can be granted. (Def.'s Mot. Dismiss 8); M.R. Civ. P. 12(b)(6). Accordingly, unless the matters outside the pleading are excluded by the court, defendant's motion to dismiss shall be treated as a motion for summary judgment. See Moody, 2004 ME 20, ¶ 8, 843 A.2d 43; M.R. Civ. P. 12(b).
Plaintiff will have 21 days from the date of this order to respond to defendant's statement of material facts not in dispute and file any additional memorandum. Id.; M.R. Civ. P. 56(h)(2) & 7(c)(2). Defendant will respond to plaintiff's filings pursuant to the rules. M.R. Civ. P. 56(h)(3) & 7(e).
The entry is
Defendant's Motion to Dismiss is converted to a Motion for Summary Judgment, Plaintiff will have 21 days from the date of this order to respond to Defendant's Motion for Summary Judgment. Defendant will respond to Plaintiff's filings pursuant to the rules.Date: August 9, 2016
/s/_________
Nancy Mills
Justice, Superior Court