Opinion
CASE NO.: 2:08cv375-MEF.
May 29, 2009
MEMORANDUM OPINION AND ORDER
Charles Meredith, Jr. ("Meredith") filed suit on May 20, 2008 against a variety of defendants including Centurion Capital Corporation ("Centurion"). Meredith alleges that the defendants were all engaged in the business of collecting debts and that they made repeated efforts to collect a debt from him which he does not owe even after he advised that he disputed the debt. Meredith alleges that defendants' actions violated the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692. Additionally, Meredith contends that defendants are liable to him for the Alabama common law tort of malicious prosecution. This cause is before the Court on the Defendant Centurion Capital Corporation's Motion for Dismissal and to Withdraw as Counsel Due to Dissolution (Doc. # 34). For the reasons set forth below, the motion is due to be DENIED.
Centurion's motion is clearly denominated a motion to dismiss. Nevertheless, Centurion's motion is predicated on factual information not found in the Complaint. Indeed, the predicate for the motion is wholly outside the pleadings and dependent upon facts which came into existence after this lawsuit had been pending for several months and after Centurion answered the Complaint. Appended to Centurion's motion are two exhibits by which Centurion purports to establish certain facts relating to the dissolution of Centurion as a corporation. Based on what is claimed in the documents to be the dissolution of Centurion months Meredith commenced this lawsuit, Centurion argues that under to Maryland law, the claims against it must be dismissed because it no longer exists and cannot be sued. Plaintiff disputes Centurion's understanding of Maryland and argues that it is entitled to discovery on matters relating to the dissolution.
The Court notes that these documents are not certified records, nor do the exhibits include any affidavit or declaration identifying, authenticating, or in any way vouching for these "exhibits."
The Court notes that Maryland law does govern the legal issue of whether claims in a pending lawsuit against a Maryland corporation abate when the corporation is dissolved.
Federal Rule of Civil Procedure 12 sets forth the applicable rules pertaining to motions to dismiss. While Centurion has not bothered to specify which type of motion to dismiss it is making, it is clear that the nature of the contention in the motion to dismiss is that the Complaint fails to state a claim against Centurion upon which relief can be granted now that Centurion has dissolved. That makes this motion a motion brought under Rule 12(b)(6). Federal Rule of Civil Procedure 12(d) makes it plain that a motion made pursuant to Rule 12(b)(6) may not rely on matters outside the pleadings without the Court's active blessing. Fed.R.Civ.P. 12(d). Specifically, when such a motion is made and supported by materials outside the pleadings the court may exclude those materials and consider the merits of the motion without them or accept those materials and treat the motion as a motion for summary judgment. Id. Given the procedural posture of this case and the relatively recent factual developments relating to the dissolution of Centurion, the Court is not inclined to accept the materials and treat the motion as one for summary judgment because Plaintiff has not had an adequate opportunity to conduct discovery on matters relating to the dissolution. Accordingly, the Court declines to consider the materials relating to matters outside the pleadings which Centurion has presented along with its motion and finds, in the absence of those materials the motion to dismiss is due to be DENIED.
The Court further notes that the "exhibits" to the motion are not certified documents, nor are they properly authenticated by an affidavit or declaration which comports with the requirements of Fed.R.Civ.P. 56(e). Many court have refused to consider documents submitted in support of motions for summary judgment that are not properly authenticated. Were this Court to consider the pending motion as a motion for summary judgment, it would also find that it was not a properly supported one. For this additional reason, the Court is not inclined to consider the materials attached to the motion to dismiss as exhibits and convert the motion to a motion for summary judgment pursuant to Rule 56.
As for the motion for leave to withdraw as counsel pursuant to the local rules for this district, the Court is not persuaded at this time that counsel has set forth an adequate basis for this request especially in light of the fact that Centurion, as a corporation, cannot appear pro se.
For the foregoing reasons, it is hereby ORDERED that Defendant Centurion Capital Corporation's Motion for Dismissal and to Withdraw as Counsel Due to Dissolution (Doc. # 34) is DENIED with respect to both requests for relief which it contains.
The parties are advised to immediately commence all discovery required to prepare adequately to present or defend against any dispositive motion. The deadline for such motions is rapidly approaching. While the Court appreciates that the parties may not have been participating in active discover since the motion to dismiss was filed on March 31, 2009, the Court is expediting ruling on the motion to dismiss, in part to stem the seemingly endless flow of argument on the motion, in order to allow sufficient time for discovery without an extension of the July 10, 2009 deadline for dispositive motions. The parties are further advised there will not be sufficient time after the dispositive motion deadline to conduct discovery necessary to defend against any motion filed on that deadline. The standard briefing schedule on a dispositive motion allows a response with exhibits to be filed approximately two weeks after the initial dispositive motion is filed and a reply one week after the response. No further briefs or evidentiary submissions are acceptable without proper leave of court.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).