Land v. Stonestreet (In re Land)

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

JOHN C. MINAHAN, Jr., Bankruptcy Judge.

The defendant, Timothy J. Mahoney, has moved to dismiss under Fed.R.Civ.P. 12(b)(5) & (6), and also on the theory of immunity. The motion is accompanied by an affidavit. When matters outside the pleadings are presented on a motion to dismiss, and the motion is treated as a motion for summary judgment under Rule 56, “all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56.” Court v. Hall County, 725 F.2d 1170, 1172 (8th Cir.1984). The motion is hereby taken under advisement to be determined by the Court after plaintiffs have been provided an opportunity to respond.

IT IS HEREBY ORDERED, that the defendant’s motion to dismiss (Fil. # 24), will be treated as a motion for summary judgment and the plaintiffs will be given until June 27, 1988, to present evidence in the form of an affidavit in compliance with Fed.R.Civ.P. 56(e).