Opinion
No. 02 C 3668
September 20, 2002
MEMORANDUM ORDER
Instead of filing an answer to the Fair Labor Standards Act ("Act") Complaint in this case, counsel for the three defendants filed what is characterized as a Fed.R.Civ.P. ("Rule") 12 motion "to dismiss the complaint for failure to state a cause of action," In those terms the motion is plainly improper, because it goes beyond the Complaint to assert factual matters in the form of an affidavit from co-defendant Phillip Livingston. That f actual submission could entitle this Court to convert the motion into a Rule 56 motion for summary judgment (see the last sentence of Rule 12(b)), but such treatment is appropriate only if the exercise of sound discretion appears to call for such conversion.
As the response that has now been filed by plaintiff's counsel demonstrates, that is simply not true here. There are genuine issues of material fact as to whether defendants violated the Act, and any attempt at such a threshold resolution of those factual issues would not at all serve the interests of justice. Moreover, plaintiff's counsel has joined the response to the motion with the tender of an Amended Complaint — something that he has an absolute right to file under Rule 15(a).
Accordingly the motion to dismiss is denied, and defendants are ordered to answer (not otherwise plead to) the Amended Complaint on or before September 30, 2002. In the meantime the previously-scheduled status hearing at 9 a.m. September 25 will remain in effect, and the parties' counsel are expected to appear at that time.