This column presents questions posed in the Are You Smarter Than a Law Clerk program presented at MSBA’s Annual Meeting. The participants in the program and creators of the questions are: the Honorable Lynne A. Battaglia and the Honorable John F. Fader II; and attorneys James K. Archibald and Paul Mark Sandler. The statements set forth below are not legal advice. Any statements below, other than those that have been set forth in reported decisions, shall not be attributed to any member of the Maryland Judiciary as advisory opinions. This prompt deals with draft expert reports/attorney-expert communications.
Question: Defense counsel files a motion to dismiss a complaint and attaches to the motion an affidavit and what he considers to be a relevant document. Is defense counsel’s filing of an affidavit with an exhibit proper in the context of a motion to dismiss a complaint?
C. I do not know.
D. It depends.
Answer: A. Yes.
A party may attach affidavits and documents to a motion to dismiss, but this may convert the motion to dismiss to a motion for summary judgment. Rule 2-322 states: “If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501.”