Reference to Public Records in Motion to Dismiss does not Convert it to Motion for Summary Judgment.

(520) 790-5600

Strategic Dev. & Constr. , Inc., 578 Ariz. Adv. Rep. 42 (App. Div.I, March 18, 2010) (J. Johnsen).

Roosevelt Partners owned property it leased to Rev Roosevelt and Rev hired the plaintiff to construct tenant improvements on the property but Rev refused to pay for the services. Plaintiff sued Rev and Partners for payment. Partners moves to dismiss pursuant to rule 12 (b)(6) of the Arizona Rules of Civil Procedure and referenced public documents proving it was only the landowner and not the party who contracted for the services. Plaintiff failed to respond. The court granted the motion. Plaintiff then moved for reconsideration claiming since the motion referred to documents outside the four corners of the motion it should be converted to a Motion for Summary Judgment under rule 56 but again failed to respond to the merits of the motion. The motion was denied.

On appeal the Court of Appeals affirmed the trial court finding that when a defendant moves to dismiss a complaint pursuant to Rule 12 (b)(6) the motion is not converted to a rule 56 Motion for Summary Judgment simply because the defendant references public records in the motion. It was within the sound discretion of the trial court to grant the motion where the plaintiff did not respond to the motion.

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