Opinion
02 Civ. 3823 (LAK)
July 9, 2002
ORDER
Defendant has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) but has submitted a number of declarations and related materials in support of the motion. It has moved also for a stay of discovery pending disposition of the motion. Plaintiff has responded by resisting in part the motion to stay discovery, by opposing conversion of defendant's Rule 12(b)(6) motion into a motion for summary judgment, see Fed.R.Civ.P. 12(b), and by the anticipatory submission of a purported Rule 56(f) affidavit in support of its contention that it needs discovery to resist defendant's motion to dismiss, assuming that it is converted into one for summary judgment.
Although the Court reserves the right to decide the motion pursuant to Rule 12(b)(6), it hereby gives notice that it may consider defendant's evidentiary submissions and thus convert the motion into one for summary judgment dismissing the complaint as permitted by Rule 12(b). Accordingly, plaintiffs shall submit any affidavits, declarations or other evidentiary material in opposition to the motion. Should the Court convert the motion, it will consider plaintiff's submissions to date in determining, pursuant to Rule 56(f), whether and to what extent defendants require discovery in order to resist the motion. In the meantime, all discovery is stayed pending determination of the motion to dismiss or further order of the Court.
The Court sua sponte extends the time for serving and filing of any further evidentiary submissions by plaintiffs to and including July 19, 2002. Defendant's reply papers in support of its motion shall be served and filed on or before August 2, 2002.