United States District Court, E.D. Louisiana
JOHN BAXA ET AL.
TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.
the Court are Defendant's Motion to Dismiss (Doc. 48),
Plaintiffs' Motion to Strike (Doc. 49), and
Defendant's Motion to Substitute (Doc. 53). Defendant on
September 11, 2018 filed a Motion to Dismiss Plaintiffs'
Fourth Amended Complaint under Federal Rule of Civil
Procedure 12(b)(6).Attached to Defendant's Motion are
three different documents. The first is a summary of
Plaintiffs' initial disclosures. The second is an account
statement regarding Plaintiffs' loan account with
Defendant. And the third is Plaintiffs' mortgage
with First National Bank.
September 24, 2018, Plaintiffs moved to strike all three
attachments. Plaintiffs argued that it was improper for
the Court to consider such evidence at the Motion to Dismiss
stage and that the attachments were irrelevant and
unauthenticated. Defendant opposed Plaintiffs' motion but
also subsequently moved to substitute an authenticated
version of the account statement for the unauthenticated
Plaintiffs' initial disclosures, the Court need not
strike the document from the record because this Court will
not consider them at this stage of the proceedings. As for
the account statement, this Court finds it highly relevant to
this case. Whether Plaintiffs were timely paying their
mortgage bills is a material fact for Plaintiffs' breach
of contract and federal law claims. Because the statement
suggests Plaintiffs were behind on those payments, the
statement is relevant to deciding those claims. Further, to
the extent Plaintiffs challenge the authenticity of the
statement, Defendant's substituted version of the
statement has been authenticated. Finally, the same mortgage
document Plaintiffs now seek to strike was attached to
Defendant's original Motion to Dismiss filed in January
2018. Plaintiffs did not object to the
attachment when they opposed Defendant's original Motion
to Dismiss, and the Court relied on the attachment when
issuing its ruling regarding the Motion. Thus, Plaintiffs
have waived any objection to this document's existence in
the record, and it need not be struck from the instant Motion
final matter, the Court notes that Plaintiffs did not attach
the account statement to any of their amended complaints, nor
was the statement referred to in any of Plaintiffs'
pleadings. Thus, it would be improper for this Court to
consider the account statement when analyzing the instant
Motion to Dismiss. Nevertheless, this Court possesses the
authority to convert Defendant's Motion to Dismiss into a
Motion for Summary Judgment, at which point it would be
appropriate to consider such evidence. When making
such a conversion, “[a]ll parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.” Accordingly, the parties
will be given 14 days to submit to the Court additional
evidence they believe may be relevant to Defendant's
foregoing reasons, Defendant's Motion to Dismiss (Doc.
48) is hereby converted into a Motion for Summary Judgment
pursuant to Federal Rule of Procedure 12(d). The parties
shall have 14 days to submit to the Court any additional
evidence they wish the Court to consider in analyzing
Defendant's converted motion.
further ordered that Plaintiffs' Motion to Strike is
DENIED, and Defendant's Motion to Substitute is GRANTED.
Record Document 53-1 shall be substituted for Record Document
 See Doc. 48.
 Doc. 48-2.
 Doc. 48-3.