United States District Court, D. Nebraska
ELLIOTT K. HAWORTH and DALLAS R. BROWN, on behalf of themselves and all others similarly situated, Plaintiffs,
MIDLAND CREDIT MANAGEMENT, INC., et al., Defendants.
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge.
matter is before the Court on the plaintiffs' motion
(filing 28) to strike evidence (filing 23) filed by the
defendants in support of their motion to dismiss (filing 21),
or in the alternative, to convert the motion to dismiss into
a motion for summary judgment pursuant to Fed.R.Civ.P. 12(d),
and then deny the motion and order discovery pursuant to
Fed.R.Civ.P. 56(d). The plaintiffs' motion to strike or
convert will be denied.
plaintiffs' complaint alleges class action claims under
the federal Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq., and the Nebraska Consumer
Protection Act, Neb. Rev. Stat. § 59-1601 et seq.
Seefiling 1 at 16-17. Briefly summarized, the complaint
accuses the defendants of "robo-signing" affidavits
in support of debt collection actions that purport to be
based on the affiant's personal knowledge, but actually
aren't. See filing 1 at 4-8. The defendants move
to dismiss those claims. Filing 21, filing 24. In support,
defendants Midland Credit Management and Midland Funding
filed the following evidence:
• An order of the County Court of Douglas County,
Nebraska in one of the plaintiff's debt collection cases
• One of the plaintiff's briefs opposing summary
judgment in her debt collection case in the County Court of
Sarpy County, Nebraska (filing 23-1 at 3-11), and
• The county court docket sheets for each of the
plaintiffs' debt collection cases (filing 23-2 at 12-18).
plaintiffs take issue with the index of evidence. First, they
move to strike the evidence, relying on the proposition that
when deciding a motion to dismiss under Rule 12(b)(6), courts
typically look only to the pleadings. Am. Family Mut.
Ins. Co. v. Vein Centers for Excellence, Inc., 912 F.3d
1076, 1081 n.4 (8th Cir. 2019). But Rule 12(b)(6) motions are
not automatically converted into motions for summary judgment
simply because additional matters are submitted in support of
the motion. Sorace v. United States, 788 F.3d 758,
767 (8th Cir. 2015). And the plaintiffs' argument
overlooks the well-established rule that the Court may take
judicial notice of public records and may thus consider them
on a motion to dismiss. Humphrey v. Eureka Gardens Pub.
Facility Bd., 891 F.3d 1079, 1081 (8th Cir. 2018);
Ashford v. Douglas Cty., 880 F.3d 990, 992 (8th Cir.
2018); Roe v. Nebraska, 861 F.3d 785, 788 (8th Cir.
2017); Williams v. Employers Mut. Cas. Co., 845 F.3d
891, 903 (8th Cir. 2017); Johnson v. Vilsack, 833
F.3d 948, 952 (8th Cir. 2016); Wieland v. U.S. Dep't
of Health & Human Servs., 793 F.3d 949, 953 (8th
Cir. 2015); Greenman v. Jessen, 787 F.3d 882, 887
(8th Cir. 2015); U.S. ex rel. Kraxberger v. Kansas City
Power & Light Co., 756 F.3d 1075, 1083 (8th Cir.
2014); Miller v. Redwood Toxicology Lab., Inc., 688
F.3d 928, 931 (8th Cir. 2012); Illig v. Union Elec.
Co., 652 F.3d 971, 976 (8th Cir. 2011); Blakley v.
Schlumberger Tech. Corp., 648 F.3d 921, 931 (8th Cir.
2011); Katun Corp. v. Clarke, 484 F.3d 972, 975 (8th
Cir. 2007); Levy v. Ohl, 477 F.3d 988, 991 (8th Cir.
2007); Stahl v. U.S. Dep't of Agric., 327 F.3d
697, 700 (8th Cir. 2003); Faibisch v. Univ. of
Minnesota, 304 F.3d 797, 802 (8th Cir. 2002); Porous
Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.
1999); State ex rel. Nixon v. Coeur D'Alene
Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999); see
Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986).
state court materials offered here are matters of public
record. See Greenman, 787 F.3d at 887;
Levy, 477 F.3d at 991-92; Powers v. City of
Ferguson, 229 F.Supp.3d 894, 899 (E.D. Mo. 2017);
Grunwald v. Midland Funding LLC, 172 F.Supp.3d 1050,
1052 n.1 (D. Minn. 2016); see also Giannone v. Bank of
Am., N.A., 812 F.Supp.2d 216, 222 n.2 (E.D.N.Y. 2011);
Pet Quarters, Inc. v. Depository Tr. & Clearing
Corp., 545 F.Supp.2d 845, 847 (E.D. Ark. 2008),
aff'd, 559 F.3d 772 (8th Cir. 2009).
Accordingly, they may be considered on a motion to dismiss,
and there is no basis to strike them. Similarly, there is no
basis to convert the motion to dismiss into a motion for
plaintiffs also ask for discovery. To the extent that request
is concomitant with their Rule 56(d) motion, it will
obviously be denied. The Court notes, however, that the
plaintiffs' request overlooks the standard of review on a
motion to dismiss: to the extent the plaintiffs think they
need evidence to support the factual allegations of their
complaint, see filing 29 at 4, they're mistaken,
because the Court must accept as true all facts pleaded by
the plaintiffs and grant them all reasonable inferences from
the pleadings. Gallagher v. City of Clayton, 699
F.3d 1013, 1016 (8th Cir. 2012). No. discovery is necessary
1. The plaintiffs' motion to strike or in the alternative
to convert (filing 28) is denied.
2. The plaintiffs shall respond to the pending motions to
dismiss (filing 21, filing 24) on or before May 2, 2019.
3. The defendants may reply in support of their respective
motions to dismiss on or ...