The opinion of the court was delivered by: Judge Mattice
Plaintiff Ms. Elina Eastwood brings this action for wrongful levy against Defendants. Defendants respond in part by asserting a counterclaim and third party complaint against Mr. Edward Eastwood and Ms. Eastwood for fraudulent conveyance under state law. Before the Court are Mr. and Ms. Eastwood's motions to dismiss (Court Doc. Nos. 141 and 145) and Ms. Eastwood's motions for summary judgment (Court Doc. Nos. 29 and 142).
Defendants object to Mr. and Ms. Eastwood's motions to dismiss based on the fact that they were not filed as the parties' first responsive pleadings. The Court will first address this threshold issue.
While most defenses enumerated in Federal Rule of Civil Procedure 12(b) must be pled in the first responsive pleading or motion, "Rule 12(h)(2) provides that the Rule 12(b)(6) defense of failure to state a claim upon which relief may be granted can be raised after an answer has been filed by motion for judgment on the pleadings pursuant to Rule 12(c)." Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987). As they are proceeding pro se, the Court will construe Mr. and Ms. Eastwood's motions to dismiss as made pursuant to Rule 12(c), and they are therefore timely. See Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir. 2006) (remarking that pro se pleadings are held to a less stringent standard and are to be liberally construed in favor of the pro se litigant).
When, as here, one or both parties present matters outside the pleadings in conjunction with a Rule 12(b)(6) motion, the Court may, at its discretion, either consider these matters and convert the motion to one for summary judgment or exclude the extra-pleading materials and apply the standard set forth in Rule 12(b)(6). See Fed. R. Civ. P. 12(b); Shelby County Health Care Corp. v. S. Council of Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir. 2000); Aamot v. Kassel, 1 F.3d 441, 443 (6th Cir. 1993); see also Batt v. United States, 976 F. Supp. 1095, 1096-97 (N.D. Ohio 1997) ("The decision to exclude material outside the pleadings is entirely within the discretion of the trial court.").
Because Ms. Eastwood has moved for summary judgment independently of her motion to dismiss, and Mr. and Ms. Eastwood's motions to dismiss present grounds which do not require the Court to consider matters outside the pleadings, the Court declines to convert their motions to dismiss into additional motions for summary judgment. To the extent that Mr. and Ms. Eastwood offer matters outside the pleadings in support of their motions to dismiss, the Court EXCLUDES this material pursuant to Rule 12(b). The Court will, however, consider these extra-pleading materials in conjunction with Ms. Eastwood's motions for summary judgment.
A. Federal Rule of Civil Procedure 12(c)
The standard of review applicable to a motion for "judgment on the pleadings" pursuant to Federal Rule of Civil Procedure 12(c) is the same as the standard of review applicable under Rule 12(b)(6). Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998).
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint that fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is to permit a defendant to test whether, as a matter of law, the plaintiff is entitled to relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). To survive a motion to dismiss under 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face."*fn1 Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1974 (2007). The complaint must contain either "direct or inferential allegations respecting all the material elements to sustain a recovery . . . ." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (internal quotations and citations omitted). The Court must determine not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In making this determination, the Court must construe the complaint in the light most favorable to plaintiff and accept as true all well-pleaded factual allegations. Arrow, 358 F.3d at 393; Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999). The Court need not accept as true mere legal conclusions or unwarranted factual inferences. Id.
B. Federal Rule of Civil Procedure 56
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material facts exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may meet this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or by simply " 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325. To refute such a showing, the nonmoving party may not simply rest on its pleadings. Behrens v. Pelletier, 516 U.S. 299, 309 (1996); see Anderson, 477 U.S. at 249. The nonmoving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Celotex, 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 248-49; Nat'l Satellite Sports, 253 F.3d at 907. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving ...