United States Ninth Circuit

An FRCP 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for summary judgment until the district court acts to convert the motion by indicating that it will not exclude those materials from its consideration, and until such time, plaintiff may file a proper notice of dismissal under FRCP 41(a)(1), and defendant may prevent unilateral dismissal by serving plaintiff with an answer.

Appellate Information

• Argued 05/12/2003
• Decided 08/14/2003
• Published 08/14/2003

Judges

• Before HUG, GIBSON, and FISHER, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellees:
  
• John R. Clemency, Esquire, Phoenix, AZ, for the defendant-appellant., David S. Maring, Esquire, Bismark, ND, for the plaintiff-appellee.