IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

JERRY ALLEN, )

)

Plaintiff, )

v. ) Case No. 1:06-cv-681-MEF

) (WO)

CHAMPION ENTERPRISES, )

INC., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

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

removed to this Court on August 2, 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 August 7, 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

and adequate 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

Case 1:06-cv-00681-MEF-SRW Document 11 Filed 09/21/06 Page 1 of 3
 Rule 12(b) provides, in relevant part:

1

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).

2

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

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. On this basis the motion will

therefore be denied as premature.

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 Council 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

will be granted.

It is therefore ORDERED that:

1. Champion’s motion for summary judgment is DENIED at this time as premature,

with leave for Champion to refile at a later point in the case if it so chooses.

Case 1:06-cv-00681-MEF-SRW Document 11 Filed 09/21/06 Page 2 of 3
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2. The order setting briefing deadlines (Doc. # 6) is VACATED.

3. Plaintiff’s request for discovery is GRANTED. Plaintiff may conduct limited

discovery only on the issue of personal jurisdiction until November 9, 2006.

4. Plaintiff shall respond to Champion’s motion to dismiss on or before November

28, 2006.

5. Champion may file a reply to Plaintiff’s response on or before December 4, 2006.

DONE this the 21 day of September, 2006. st

 /s/ Mark E. Fuller 

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:06-cv-00681-MEF-SRW Document 11 Filed 09/21/06 Page 3 of 3