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‘Minute Order Forts (06/97)

United States District Court, Northern District of Illinois

me of Assigned Judy i Sitting Tudge if Othe

“ wr Macltoate “judge Milton I. Shadur than Assigned Judge

CASE NUMBER 02 C 3668 DATE 9/20/2002
CASE Oliver Holt, etc. vs. Q.C. Construction, Inc., et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd parry plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented. |

DOCKET ENTRY:

fap) Oo Filed motion of [ use listing in “Motion” box above.]

Q@ a Brief in support of motion duc

(3) oO Answer brief to motion due___. Reply to answer brief due

(4) o Ruling/Hearing on____ set for al.

(5) a Status hearing{held/continued to] [set for/re-set for]on__sset for at

(6) Q Pretrial conference[held/continued to] [set for/re-set forlon___set for at

(7) oO Trial[set for/re-set for] on a:

(8) o [Bench/Jury trial] [Hearing] held/continued to____at

(9) Oo This case is dismissed [with/without] prejudice and without costs|by/agrecment/pursuant to]

COFRCP4(m) CLocal Rule 41.1 OFRCP41({a)\(1) 01 FRCP41(a)(2).

(16) MM [Otherdocket entry] Enter Memorandum Order, Accordingly the motion to dismiss is denied, and
defendants are ordered to answer (not otherwise plead to) the Amended Complaint on or before

September 30, 2002. In the meantime the previously-scheduled status hearing at 9 a.m. Septe
remain in effect, and the parties’ counsel are expected to appear at that time. (4-1)

dl) @f [For further detail see order attached to the original minute order.]

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No notices required, advised in qpen court,

No notices required, umber of notices

Document
Number

A | Notices maited by judge's staf. SEP 23 002

Notified counsel by telephone, date, gece

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7

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

SEP 23 2002

OLIVER HOLT, etc., )
Plaintiff,
ve No. 02 C 3668
Q.C. CONSTRUCTION, INC., et al.,
Defendants.
MEMORANDUM ORDER
Instead of filing an answer to the Fair Labor Standards Act
(“Act”) Complaint in thia case, counsel for the three defendants
filed what is characterized as a Fed. R. Civ. P. (“Rule”) 12
motion “to dismiss the complaint for failure to state a cause of
action.” In those terms the motion is plainly improper, because
it goes beyond the Complaint to assert factual matters in the
form of an affidavit from co-defendant Phillip Livingston. That
factual submission could entitle this Court to convert the motion
into a Rule 56 motion for summary judgment (see the last sentence
of Rule 12(b)), but such treatment is appropriate only if the
exercise of sound discretion appears to call for such conversion.
As the response that has now been filed by plaintiff's
counsel demonstrates, that is simply not true here. There are
genuine issues of material fact as to whether defendants violated
the Act, and any attempt at such a threshold resolution of those

factual issues would not at all serve the interests of justice.

Moreover, plaintiff's counsel has joined the response to the



motion with the tender of an Amended Complaint--something that he
has an absolute right to file under Rule 15(a).

Accordingly the motion to dismiss is denied, and defendants
are ordered to answer (not otherwise plead to) the Amended
Complaint on or before September 30, 2002. In the meantime the
previously-scheduled status hearing at 9 a.m. September 25 will

remain in effect, and the parties' counsel are expected to appear

“Che flew. Kemer

Milton I. Shadur
Senior United States District Judge

at that time.

Date: September 20, 2002