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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

LUCAS NELSON and SHANNON ROBINSON NELSON,

) ) ) Plaintiffs, ) ) vs. ) ) HARTFORD INSURANCE ) COMPANY OF THE MIDWEST, ) SAFECO INSURANCE COMPANY ) OF ILLINOIS, IRMA SULLIVAN, ) individually and JOHN DOES A, B and ) C, ) ) Defendants. ) ___________________________________ )

CV 11-162-M-DWM

ORDER

Through their common attorney, Defendants Irma Sullivan ("Sullivan") and Hartford Insurance Company of the Midwest ("Hartford") have moved to dismiss Plaintiffs' claims against Sullivan under Rule 12(b)(6) of the Federal Rules of
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Civil Procedure. Sullivan is an insurance adjuster and employee of Hartford. Hartford and Sullivan argue that it is clear, based on the facts alleged in the Second Amended Complaint and Demand for Jury Trial (doc. 26) ("Complaint"), that Sullivan was acting in the scope and course of her employment and is therefore not personally liable to Plaintiffs. Plaintiffs counter that their Complaint "include[s] intentional woundings against the Plaintiffs by Defendant Sullivan." (Doc. 36 at 2.) They also allege that Sullivan was acting "outside the course and scope of her job duties." (Id. at 5.) In addition, they allege new facts in their response brief and the attached affidavits. Plaintiffs argue that the Court should consider the new allegations and treat the motion to dismiss as a motion for summary judgment. A court has complete discretion to "reject [any material outside the pleadings] or simply not consider it." Stein v. United Artists Corp., 691 F.2d 885, 889 (9th Cir. 1982); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

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