district of minnesota where is that lee bush where does that leave us right now yes chapman in minnesota well i think what that leads us your honor is really support for my argument that one of the four main things that like to accomplish today first want to name one of your questions second one is to propose a desired rule in this case and judge fisher using your ship analogy or your ours where the plaintiffs actually injected into the record extraneous matters and moves functionally for summary judgment on a case dispositive we i don't think our role is to formulate rules we're not in maritime jurisdiction i don't think we'll do that my my concern is could you address what we derive from rule twelve b as if matters outside the pleadings are present to and not acts people put all sorts of stuff in their complaints and whatever but that if the court never looks at it how does that suddenly become a summary judgment motion the fall within forty one well extraneous stuff for the plaintiff to come in today and to suggest that it surprised or that it didn't want to consider all of those things and that indeed it wanted to court to exclude those things i think's impossible but that's not what the rule cuts about the rule as a rule forty one says that prior to an answer in which you didn't file or a motion for summary judgment which you didn't file  a motion to dismiss if it is supported by extraneous matters will be treated shall be treated its mandatory shall be treated as a motion for summary judgment on last the court exclude so matters but what i write said of the matters outside the pleading are presented to and not excluded by the court and there is nothing in the record to suggest that the court excluded anything but i mean it has to exclude them before they filed a rule forty one motion i don't see anything in the world that says that you are right i understand your position i really do and i understand that there's four and shopping apparently going on here and they didn't like the tentative ruling but the concern is tracking through the language the language used in rule forty one talks about a motion for summary judgment it doesn't talk about and will be six motions and what you're asking of us to say that it becomes as a matter of construction a summary judgment motion of the party because if you're concerned about ads extraneous material even if the court ultimately might not even consider this might continue to sense well i your honor my response to that is you're adding a lot of even those that that i'm not arguing for and you're reading a lot of even those that didn't happen below  the reality is there was a motion to dismiss a three page motion to dismiss it was net by the plaintiffs with a twelve page response an opposition that asked for two things a dispositive ruling support under those circumstances particularly where judge judge magistrate did not exclude them in fact one two were hearing and consider them i think you have a mandatory under rule twelve he said conversion of the moment or mandatory is functional and if you look at the cases they also say apply the rule functionally the judge magistrates to never excluded anything and i think a fair reading of rule twelve  your rules we were to fashion your rule your rule would be that once the positive in this case filed extraneous materials and for all intents and purposes was attempting to it into a motion for summary judgment the language of not excluded by the court would mean that the court would have to take take some action in this pleading process before case was started because of statue of limitations concerns and then put on hold by agreement of the parties and order of the magistrate judge that's overseeing the initial stages of that lawsuit pending the respect to that second element in our opinion has been answered in the andersen case one thousand nine hundred ninety six case of the main circuit which we've cited in our brief and it says that the conversion is not automatic upon the submission of materials by either party by either party it's not an automatic conversion what happens is that the question becomes did the court rely on them and that there has to be a focus on what the court relied on and not whether or not the materials were submitted and not thrown out the issues not whether they were simply not thrown out into court consciously rely on those materials situation where we were analyzing a rule forty one dismissal as compared to the facts that were present in andersen or in our starr i submit to the court that it would be very difficult to have two different rules for different situations when the issue comes up on whether or not there's a conversion the district court has to make a conscious decision whether to a school or a lamp to the school load and there are several cases so after the voluntary dismissal was filed that he was going to strike the voluntary dismissal then a motion for reconsideration was filed where we again argued the same principles and unfortunately that motion didn't get decided until the year two thousand and two but the magistrate judge realized at that point and placed in his second order that he had taken no action he had done absolutely nothing with respect to the materials that had been submitted by either party prior to the time the voluntary dismissal have been filed and therefore there was nothing he could do at that point and the court used this magistrate judge uses some interesting language and again it would not be appropriate for the plaintiffs in thinking the decision of whether or not there is a conversion that discretionary decision has to be by the trial court and the adversary case specifically says case and decided to bail that's correct and that at that point on january eighteenth two thousand the voluntary dismissal was filed and it wasn't until february tenth of two thousand some twenty two days later that the court held the hearing and at that point in this first order said well now because i'm on february tenth two there was going to be hearing a hearing on the summary judgment motion that certainly comes close i suppose the court would then have to at some point in time declare whether it had already determined that it was going to consider it as a summ from nineteen seventy at four twenty two half second twelve sixty four and in that case had been a motion to dismiss that had been filed and there was actually i think hearing on the motion to dismiss and the court made it an oral ruling from the fans to grant the defendant's motion to dismiss and even at that point the plaintiff was allowed to file a voluntary motion for dismissal so the responding to the motion to dismiss took place in november and december and by january eighteenth two thousand there was a dismissal of this case two and a half months later there are some cases that have been cite and one is ready to be all teed up what if you had filed an answer and then moved to dismiss obviously that would have been a different situation and in an answer to set up but here your honor we also have a clear form of shopping  there's another case in minnesota so they can access a longer statute of limitations you also have here sensually the use of rule forty one voluntary dismissal to overcome a venue decision  response that would be we certainly could have done all that but by the same token we have a mechanism underworld probably sets that came into play in this case as it was intended to come into play in this case and