Taylor v. Royal Insurance

33 F.R.D. 521, 7 Fed. R. Serv. 2d 135, 1963 U.S. Dist. LEXIS 10390

Opinion

BECKER, District Judge.

Defendant herein has filed a motion to dismiss this case for failure to state a claim. The motion asserts several facts as a basis for relief which do not appear from the face of the complaint. The policy referred to in the motion is not attached to the petition filed here on removal. In fact it was necessary to order its production in this cause.

All intendments and omissions in the plaintiff’s pleadings must be assumed to favor plaintiff. 2 Moore, Federal Practice ¶ 12.08, p. 2244, 1. c. 2245, n. 6. The more appropriate method of raising the claim of this motion to dismiss based on contractual limitations is by a motion for summary judgment which can now be submitted since discovery was ordered completed by September 1, 1963. Poller v. C. B. S., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458.

It is therefore

Ordered that the motion to dismiss be, and it is hereby, denied without prejudice to the merits of the asserted defense of defendant. It is further

Ordered that defendant file a motion for summary judgment within 20 days from the entry of this order submitting the asserted defenses. It is further

Ordered that plaintiff respond thereto in writing within 40 days from the entry of this order.