Rule 12(b) provides, in relevant part:

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RALPH BROWN, )

)

Plaintiff, )

)

v. ) Case No. 2:06-cv-642-MEF

) (WO)

CHAMPION ENTERPRISES, INC., et. al., )

)

Defendants. )

ORDER

This case was filed in the Circuit Court of Barbour County on June 19, 2006 and was

removed to this Court on July 19, 2006. It is presently before the Court on Defendant

Champion Enterprises, Inc.’s (hereinafter “Champion”) Motion to Dismiss, or, in the

Alternative, Motion for Summary Judgment (Doc. # 5) filed on July 26, 2006. Champion

alleges that Plaintiff has failed to state a claim upon which relief may be granted and that the

Court lacks personal jurisdiction over Champion. In his response to the motion (Doc. # 7),

Plaintiff states that because the case was so recently filed and removed, no discovery has

been conducted, thus Plaintiff cannot adequately oppose the motion. Plaintiff requests that

the Court either deny the motion or continue the hearing on summary judgment until proper

discovery can be had.

Since Champion submitted an affidavit with its motion, pursuant to Federal Rule of

Civil Procedure 12(b), the Court is required to construe the portion of the motion asserting

a Rule 12(b)(6) claim to be a motion for summary judgment. Fed. R. Civ. P. 12(b). That 1

Case 2:06-cv-00642-MEF-SRW Document 8 Filed 08/24/2006 Page 1 of 2
If, on a motion asserting the defense numbered (6) to dismiss for failure of the

pleading to state a claim upon which relief can be granted, matters outside the

pleading are presented to and not excluded by the court, the motion shall be

treated as one for summary judgment and disposed of as provided in Rule 56 . . .

Fed. R. Civ. P. 12(b).

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is, Champion’s claim that Plaintiff has failed to state a claim upon which relief can be

granted will be considered a motion for summary judgment. As such, it is hereby

ORDERED that the motion is DENIED at this time as premature, with leave for Champion

to refile at a later point in the case if it so chooses.

On the other hand, the Court need not treat Champion’s personal jurisdiction claim

as a motion for summary judgment because it is brought pursuant to Rule 12(b)(2), not Rule

12(b)(6). See Region 8 Forest Serv. Timber Purchasers v. Alcock, 993 F.2d 800, 807 n.8

(11th Cir. 1993). Thus, the Court will consider this claim a motion to dismiss for lack of

personal jurisdiction. As to this motion, the Court construes Plaintiff’s response as a request

for time to conduct discovery prior to responding to the motion. Since a claim that the Court

lacks personal jurisdiction requires the Court to make findings of fact, see Chudasama v.

Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997), Plaintiff’s request for discovery

is GRANTED. Plaintiff may conduct limited discovery only on the issue of personal

jurisdiction and shall then respond to Champion’s motion to dismiss on or before September

25, 2006. Champion may file a reply to Plaintiff’s response on or before October 2, 2006.

DONE this the 24 day of August, 2006. th

 /s/ Mark E. Fuller 

CHIEF UNITED STATES DISTRICT JUDGE

Case 2:06-cv-00642-MEF-SRW Document 8 Filed 08/24/2006 Page 2 of 2