Bering Strait School Dist. v. Safeco Ins. Co. Payment Bond

Full title: BERING STRAIT SCHOOL DISTRICT, for the use and benefit of GBC, LLC…

Court: United States District Court, D. Alaska

Date published: Mar 24, 2005

Case No. A04-0202 CV (RRB) (D. Alaska Mar. 24, 2005)

Opinion

Case No. A04-0202 CV (RRB).

March 24, 2005

ORDER RE MOTION TO DISMISS

RALPH BEISTLINE, District Judge

Defendant filed a Motion to Dismiss¹ and Plaintiff opposed and attached an affidavit and numerous exhibits to its opposition.² Therefore, Defendant now argues that its Motion to Dismiss should be treated as a Motion for Summary Judgment.³ Fed.R.Civ.P. 12(b) provides:

1 Clerk's Docket No. 8.

2 Clerk's Docket No. 13.

3 Clerk's Docket No. 15.

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.⁴

4 Fed.R.Civ.P. 12(b).

Here, Plaintiff attached documents outside the pleading to its Opposition to Motion to Dismiss.⁵ Therefore, in accordance with Fed.R.Civ.P. 12(b), Defendant's Rule 12(b)(6) Motion to Dismiss is converted to a Rule 56(b) Motion for Summary Judgment.⁶ Accordingly, the Court will allow both parties to present additional pertinent material. Any additional material is due to the Court by May 2, 2005.

5 Clerk's Docket No. 13 at Exs. 1-8 and affidavit of Bob Gross.

6 Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (ordinarily, a court may look only at the face of the complaint to decide a motion to dismiss). A document may be considered part of the complaint if the complaint specifically refers to the document. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). However, affidavits are generally not allowed as pleading exhibits. Id.

Separately, Plaintiff filed a Motion to Strike section I.E. "The Statutes of Limitations" from Defendant's reply brief.⁷ However, this section of Defendant's reply brief relates to the portion of Plaintiff's opposition stating, "A foreign corporation may cure its failure to comply with the statutory requirements at any time prior to the statute of limitations."⁸ It does not appear to be a new defense. Thus, the motion is DENIED.

7 Clerk's Docket No. 17.

8 Clerk's Docket No. 13 at 6-7.

The Court further notes that oral argument was requested by Plaintiff.⁹ However, Defendant suggested that if oral argument was scheduled after March 2, it was no longer desired.¹⁰ The Court will determine if oral argument is necessary once all the briefings have been filed.

9 Clerk's Docket No. 16.

10 Clerk's Docket No. 18.