Motion to Dismiss versus Motion for Summary Judgment
In Black v. Gramercy Advisors, LLC, 2007 WL 2164286 (Del. Ch., July 23, 2007), read opinion here, the Chancery Court in a short letter opinion rejects a motion for reargument on its decision to convert a Motion to Dismiss into a Motion for Summary Judgment ( thereby opening the door to allowing discovery before the motion is decided.) The court provides an instructive comparison between Rule 12(b) and Rule 56. Chancery Court Rule 12(b) expressly provides that where matters outside the pleadings are to be considered by the court (such as multiple affidavits and documents in this case), the motion shall be treated as a motion for summary dugment and disposed of as provided in Rule 56. Bottom line: Be careful what is attached to a Motion to Dismiss if you don’t want it decided under the different standard of review in Rule 56.