Opinion
CV 21-00344-PHX-MTL (MHB)
10-04-2021
Robert Gonzales, Plaintiff, v. Stephen Smith, et al., Defendants.
ORDER
Michael T. Liburdi United Slates District Judge
Plaintiff Robert Gonzales, who is represented by counsel, brought this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is the Smith Defendants'Motion to Dismiss (Doc. 12).
Although the Motion to Dismiss was originally filed on behalf of the City of Peoria and the Smith Defendants, the Parties subsequently stipulated to the dismissal of the City of Peoria. (Docs. 15, 17.)
In Response to the Motion to Dismiss, Plaintiff relies on body camera footage of the incident and an expert report. (Docs. 19, 20, 21-1.) In Reply in Support of the Motion to Dismiss, the Smith Defendants rely on the video of the incident, the Declaration of Officer Smith, the police reports, and an expert report. (Doc. 30.)
Because Plaintiffs and Defendants both request that the Court rely on matters outside the pleadings, it is not appropriate for the Court to resolve the Motion to Dismiss. See United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003) (If a court considers evidence outside the pleadings, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment.). Moreover, the Court declines to convert the Motion to Dismiss into a Motion for Summary Judgment pursuant to Rule 12(d) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(d) (“ If on a motion under . . . 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56”). The Parties have not followed the Federal Rules of Civil Procedure or the Court's local rules for filing a Motion for Summary Judgment and several arguments were made for the first time in the Reply in Support of the Motion for Summary Judgment, depriving Plaintiff of an opportunity to respond to those arguments.
Accordingly, the Motion to Dismiss will be denied without prejudice to Defendants raising their arguments in a Motion for Summary Judgment.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendants' Motion to Dismiss (Doc. 12).
(2) Defendants' Motion to Dismiss (Doc. 12) is denied without prejudice as set forth herein.
(3) The Smith Defendants must file an Answer within 20 days of the date of this Order.