Opinion
Civil Action No. 06-cv-00953-WYD-BNB.
October 17, 2006
ORDER
THIS MATTER is before the Court on a review of the pending motions to dismiss and related pleadings. Defendant Soltis' Reply to Plaintiff's Response to Soltis' Motion to Dismiss Plaintiff's Amended Complaint (filed October 6, 2006) attaches evidence outside the pleadings; namely, a union contract. Pursuant to Rule 12(b), if a court does not exclude the matters presented that are outside the pleadings, a motion to dismiss pursuant to Rule 12(b)(6) shall be treated as a motion for summary judgment. FED. R. CIV. P. 12(b); see also Lucero v. Gunter, 52 F.3d 874, 877 (10th Cir. 1995).
Soltis argues in the reply that this evidence does not require conversion of the motion because the contract is a central part of Plaintiff's claims. The Tenth Circuit holds that where a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). This does not require conversion of the motion to a motion for summary judgment. Id. Here, however, I am unable to determine whether the contract is referred to in the complaint and is central to Plaintiff's claims. Accordingly, it is
ORDERED that Plaintiff shall submit a pleading on or before Friday, October 20, 2006, stating her position as to whether Soltis' motion to dismiss should be converted to a motion for summary judgment pursuant to FED. R. CIV. P. 12(b).