United States District Court, S.D. Indiana, Indianapolis Division
VETORIA M. BARNETT, Plaintiff,
CACH OF COLORADO, LLC, LLOYD & MCDANIEL, P.L.C., TAYLOR LAW, PLLC, GREGORY L. TAYLOR, Defendants. Robert E. Duff, Interested Party.
ENTRY DENYING DEFENDANT'S MOTION TO
WALTON PRATT, JUDGE United States District Court
matter is before the Court on Defendant Cach of Colorado,
LLC's (“CACH”) Motion to Dismiss (Filing
No. 38). For the reasons discussed below, the motion is
denied as premature.
November 8, 2015, Plaintiff Vetoria M. Barnett
(“Barnett”) filed a Complaint alleging breach of
contract against CACH and Defendant Lloyd & McDaniel,
P.L.C. (“Lloyd & McDaniel”) alleging
violations of the Fair Debt Collections Practices Act against
CACH, Defendants Taylor Law, PLLC (“Taylor Law”)
and Gregory R. Taylor (“Taylor”) (collectively
the “Defendants”) (Filing No. 1). On
March 23, 2017, CACH filed a Notice of Filing Suggestion of
Bankruptcy, providing notice that CACH filed a voluntary
petition for relief under Chapter 11 of Title 11 of the
United States Bankruptcy Code in the United States Bankruptcy
Court for the Southern District of New York, No. 17-10659.
(Filing No. 23.) The Notice included a demand
“pursuant to 11 U.S.C. § 362, inter alia, the
commencement or continuation of a judicial, administrative or
other action or proceeding against Defendant that was or
could have been commenced before the Petition Date, including
this action, is stayed as of the Petition Date.”
Court agreed and on March 28, 2017 issued the following
[T]he proceedings are stayed as to Defendant Cach of
Colorado, LLC only. Plaintiff may move to lift the automatic
stay if she believes an exception to the stay exists.
Further, any party may move to lift the stay within thirty
(30) days following the conclusion of the bankruptcy
proceedings or the date on which the automatic stay is
(Filing No. 24.) In response to the Court's July
2, 2018 Order directing the parties to file a status report,
CACH reported “on June 9, 2017, an order was entered in
the Bankruptcy Court confirming the bankruptcy plan which
released and discharged the claims in this lawsuit.
See Document 298, attached hereto as Exhibit
A”. (Filing No. 34 at 4.) Exhibit A was a
154-page document and no page(s) were designated for the
Courts review. That same date, Barnett filed a status report
stating that her claim was “non-dischargeable, ”
alleging bankruptcy fraud and criminal conduct by defendants.
(Filing No. 35.) Neither Barnett nor CACH moved to
lift the stay; instead, on August 22, 2018, CACH filed a
Motion to Dismiss Barnett's Complaint, arguing an order
from the Bankruptcy Court confirms that their Chapter 11 plan
precludes liability. (Filing No. 38 at 2.)
Motion to Dismiss is denied because the
motion is premature, as the stay has not been
lifted. And, even if stay had been lifted and the
Court were to consider the merits of the Motion to Dismiss,
CACH would not be successful.
does not indicate whether it seeks dismissal by Rule
12(b)(1), Rule 12(b)(6), or some other rule. The Motion to
Dismiss merely asserts the Court must dismiss Barnett's
Complaint because a June 9, 2017 order from the United States
Bankruptcy Court for the Southern District of New York
(“the Confirmation Order”) precludes liability.
CACH's Motion to Dismiss (Filing No. 38)
purports to have attached the Confirmation Order as Exhibit
A, but the docket shows the Order was not actually attached.
Rather, the Confirmation Order is included in the documents
attached as Exhibit A to CACH's Reply Brief in Support of
Dismissal (seeFiling No. 44-1), filed almost two
months after the Motion to Dismiss.
motion to dismiss relies on matters outside the pleadings,
and the Court elects to consider those matters, the motion
must be treated as one for summary judgment under Rule 56.
Fed.R.Civ.P. 12(d) (“If, on a motion under Rule
12(b)(6) or 12(c), 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.”); see also Berthold Types Ltd. V. Adobe Sys.
Inc., 242 F.3d 772, 777 (7th Cir. 2001) (“A motion
to dismiss must be treated as a motion for summary judgment
if the judge considers matters outside the complaint, but the
judge may elect to treat a motion as what it purports to be
and disregard the additional papers.”) (emphasis
the Court would have two options. First, it could choose not
to consider the attachments to CACH's filing and consider
the Motion to Dismiss on its merits. That approach would
result in denial of the Motion because CACH's one and
only argument for dismissal rests on the Confirmation Order,
which the Court cannot properly consider on a motion to
Court's second option would be to consider the documents
from the Bankruptcy Court and treat CACH's motion as one
for summary judgment under Rule 56. Consideration of the
attachment would trigger procedural consequences, “both
the opportunity for discovery…and the closing of the
window for dismissal under Rule 41(a)(1)(i).”
Berthold at 775 (citing Wilson-Cook Med., Inc.
v. Wilson, 942 F.2d 247 (4th Cir. 1991); Yosef v.
Passamaquoddy Tribe, 876 F.2d 283, 286 (2d Cir. 1989)).
When a court converts a motion to dismiss into a motion for
summary judgment, “[a]ll parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.” Fed.R.Civ.P. 12(d). But the
fact that no discovery has been undertaken does not
necessarily defeat a motion for summary judgment.
Waterloo Furniture Components, Ltd. v. Haworth,
Inc., 467 F.3d 641, 648 (7th Cir. 2006) (“Rule 56
does not require that discovery take place in all cases
before summary judgment can be granted.”).
had intended for this Court to consider its motion to dismiss
as a motion for summary judgment, it should have sought that
relief directly by complying with the procedural requirements
for a motion for summary judgment that are set forth in Local
Rule 56.1. See Ebea v. Black & Decker
(U.S.), Inc., 2008 WL 1932196 at *4 (S.D. Ind. May 1,
2008). CACH makes no argument that the Confirmation Order is
the type of “concededly authentic document” that
a court can consider on a motion to dismiss. Tierney v.
Vahle, 304 F.3d 734, 738 (7th Cir. 2002).
noted earlier, while CACH cited the Confirmation Order in its
Motion to Dismiss (Filing No. 38 at 2), it did not
actually attach the document to that filing. Rather, it
attached the document to its Reply Brief in Support of
Dismissal (Filing No. 44), meaning the document did
not become a part of the record of this case until after
Barnett had responded to CACH's Motion to Dismiss. By
failing to attach the Confirmation Order to its Motion to
Dismiss, CACH deprived Barnett of “a reasonable
opportunity to present all the material that is pertinent to
the motion, ” as required by Fed.R.Civ.P. ...