Oh how I love the “least-sophisticated consumer”!
Although the 11th apparently thinks this mythical animal remains capable of certain basic informed decisionmaking, I’m not so sure.
Two words: Sarah Palin.
Regardless, we recently discussed the 11th Circuit’s affirmance of a Rule 12(b)(6) order of dismissal involving contract terms obliquely referenced in the complaint, as opposed to converting the motion to a summary judgment as a more prudent approach and one more consistent with the policy dictates of Rule 56.
Well, I don’t want to say a little birdie in Judge Cohn’s chambers chirped about our musings, but let’s just say a little birdie in Judge Cohn’s chambers decided to do exactly as we suggested:
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:1. Defendant’s Motion to Dismiss [DE 12] is DENIED as to the issues of choice of law and pleading fraud with particularity, but a ruling is DEFERRED on the issue of whether the Complaint states a cause of action and unreasonable reliance, because the Motion to Dismiss is hereby converted into a motion for summary judgment pursuant to Rule 12(d) on that issue;2. Between now and May 13, 2010, Plaintiff may engage in discovery solely on the issues raised in the Declaration of Brian Weiss [DE 12-1], particularly the issue of which Terms and Conditions were part of the free trial offer;3. Written discovery shall be served by April 9, 2010, with responses expedited slightly to May 4, 2010;4. Plaintiff shall file a response to Defendant’s converted Motion [DE 12] by May 14, 2010;5. The Joint Motion to Amend Scheduling Order and Continue Trial Date [DE 18] is hereby GRANTED. Class certification issues are deferred until after a ruling on
the converted Motion for Summary Judgment, at which time the Court will reset the schedule if necessary.
That wasn’t so hard, was it?
(Now watch, the defendant takes it up and the 11th reverses.)
Wasn’t my idea Judge!