UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 3, 2012
COMFORT INN, MERCED, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DEEMING MOTION TO DISMISS TO BE MOTION FOR SUMMARY JUDGMENT (Doc. 75)
Defendants move to dismiss Plaintiff's amended complaint pursuant to F.R.Civ.P. 12(b)(1) and (6). Rule 12(b) provides that motions to assert defenses, including lack of subject matter jurisdiction (F.R.Civ.P. 12(b)(1)) and failure to state a claim upon which relief can be granted (F.R.Civ.P. 12(b)(6)), "must be made before pleading if a responsive pleading is allowed." Defendants filed their answer to the amended complaint on July 13, 2012, asserting these two defenses therein.
Accordingly, the Court finds that Defendants' motion is not properly denominated as a motion to dismiss pursuant to F.R.Civ.P. 12(b)(1) and (6), but is properly addressed as a summary judgment motion governed by F.R.Civ.P. 56. The Court hereby DEEMS Defendants' Motion to Dismiss First Amended Complaint to be a Motion for Summary Judgment and ORDERS that the motion shall be adjudicated according to procedures applicable to motions brought under F.R.Civ.P. 56.
IT IS SO ORDERED.
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