Conversion of 12(b)(6) Motion to Motion for Summary Judgment


Reese v. Bolling, et al., [Ms. 2180265, May 10, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Moore, J.; Thompson, P.J., and Donaldson and Edwards, JJ., concur; Hanson, J., concurs specially) reverses a judgment of the Montgomery Circuit Court dismissing claims asserted by an inmate against the warden and medical personnel at the Donaldson Correctional Facility. Defendant moved to dismiss based upon immunity and other defenses. Ms. *5. The defendants attached to their motion certain exhibits, including an affidavit and DOC records regarding the plaintiff’s diet, and the circuit court’s order of dismissal indicating that the court had “‘carefully reviewed all pleadings and evidentiary materials ...’” Ibid.

Applying settled law, the court held that the trial court’s consideration of the materials attached to the Rule 12 motion converted the motion into a motion for summary judgment. Ms. *8. The court reversed, holding

"[I]f a motion under Rule 12(b)(6)[, Ala. R. Civ. P.,] is converted into a motion for summary judgment, both parties shall be given a reasonable opportunity to submit affidavits and other extraneous proofs to avoid a party being taken by surprise through conversion of the motion to dismiss to one for summary judgment. It is also clear that the spirit of Rule 56[, Ala. R. Civ. P.,] requires the same notice and hearing where the court contemplates summary judgment on its own initiative as it does when a party moves for summary judgment; i.e., ten days[’] notice.”

Ms. *8, quoting Singleton v. Alabama Department of Corrections, 819 So. 2d 596 (Ala. 2001) (some internal quotation marks omitted).

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