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If Using Exhibits, Treat Your Rule 12(B) Motion as a Rule 56 Motion; The 487 Broadway Company, LLC v. Robinson

The 487 Broadway Company agreed to buy a building from Calumet Township but before closing, the Township removed some lighted signs, pictures and artifacts causing damage to the building. 487 Broadway sued for negligence and breach of contract.

The Township moved to dismiss, and supported the motion with several unauthenticated exhibits. The trial court responded by informing the parties it would treat the motion as one for summary judgment and gave 487 Broadway 20 days to reply.

On the 21st day, 487 Broadway filed a motion to stay pending discovery, so that it could present facts in opposition to the motion. The Court denied the motion for stay and granted the motion for summary judgment.

The Court of Appeals concluded that virtually everything done in the trial court was wrong:
• First, Rule 56 requires that the respondent to a summary judgment motion be given 30 days to file its reply, not 20. A trial court has no authority to shorten that time.
• Second, the trial court should have given plaintiff time to conduct discovery since it “is generally improper to grant summary judgment when requests for discovery are pending.”
• Third, the trial court should not have considered the unverified exhibits. “Unsworn statements and unverified exhibits do not qualify as proper Rule 56 evidence.”

Lesson:
When a motion to dismiss is supported by “matters outside the pleading,” the motion shall be treated as one for summary judgment—this means the requirements of Rule 56 must be applied.