Maradiaga et al v. Intermodel Bridge Transport, Inc. et al, No. 3:2010cv01028 - Document 14 (N.D. Tex. 2010)
Court Description: Memorandum Opinion and Order re 5 Motion to Dismiss: The court elects to treat Cosco Logistics (Americas) Inc's 12(b)(6) motion as one for summary judgment and therefore must give Plaintiffs an opportunity to respond to it. Responses due by 12/17/2010. Replies due by 12/27/2010. (Ordered by Judge Sam A Lindsay on 12/2/2010) (axm)
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Maradiaga et al v. Intermodel Bridge Transport, Inc. et al Doc. 14 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION NICHOLAS MARADIAGA, and RAFAEL MARTINEZ, Plaintiffs, v. INTERMODEL BRIDGE TRANSPORT, INC., and COSCO LOGISTICS (AMERICAS), INC., Defendants. § § § § § § § § § § § § Civil Action No. 3:10-CV-1028-L MEMORANDUM OPINION AND ORDER On June 18, 2010, Defendant Cosco Logistics (Americas), Inc. (“COSCO”) filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion included matters outside the pleadings. Plaintiffs did not file a response to the motion to dismiss but instead filed Plaintiffs’ First Amended Original Complaint on June 25, 2010. COSCO filed a reply and requests the court to treat its motion as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and to grant its motion because there is no competent evidence from Plaintiffs that COSCO is a joint employer with Defendant Intermodel Bridge Transport, Inc. Under Rule 12(d) of the Federal Rules of Civil Procedure, the court may either exclude matters presented outside the pleadings, or it may treat the motion as one for summary judgment pursuant to Rule 56. If the court treats the motion as one for summary judgment, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the [converted] motion.” Id. The court elects to treat COSCO’s 12(b)(6) motion as one for summary judgment and Memorandum Opinion and Order - Page 1 Dockets.Justia.com therefore must give Plaintiffs an opportunity to respond to it. Id.; Murphy v. Inexco Oil Co., 611 F.2d 570, 573 (5th Cir. 1980). Accordingly, Plaintiffs shall file a response to the motion for summary judgment by December 17, 2010, and COSCO may file a reply to the response by December 27, 2010. As the court has converted COSCO’s motion into one for summary judgment, the response and reply, insofar as evidentiary submissions, must comply with the requirements of Rule 56. It is so ordered this 2nd day of December, 2010. _________________________________ Sam A. Lindsay United States District Judge Memorandum Opinion and Order - Page 2
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