TJ's South, Inc. v. Town of Lowell ( 1996 )

ORDER

LOZANO, District Judge.

On August 4, 1995, this Court issued an order in this case ruling on a dismissal motion filed by Defendants. That order was later published at 895 F.Supp. 1116.

Defendants had based their dismissal motion on Fed.R.Civ.P. 12(b)(1). However, in the order, the Court invoked a Rule 12(b)(6) failure to state a claim standard. 895 F.Supp. at 1118.

For the most part, motions under 12(b)(1) and 12(b)(6) are governed by separate and distinct standards, although the standards may overlap in some basic respects and in particular circumstances. See Malak v. Associated Physicians, Inc., 784 F.2d 277, 279-80 (7th Cir.1986); 5A Charles A Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, pp. 196, 213-39 & 1995 Supp. p. 77 (2d ed. 1990). In any event, the Court does not believe that its invocation of the 12(b)(6) standard in the August 4 order affected the reasoning or the result of the order.

The August 4, 1995, order ruling on the Motion to Dismiss Plaintiffs Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1), now reported at 895 F.Supp. 1116, is hereby AMENDED to reflect the foregoing clarification.