When a party moves to dismiss under Rule 12(b)(6) and the district court relies upon material from outside the complaint, the court converts the motion to dismiss into a motion for summary judgment. Lamb v. Rizzo, 391 F.3d 1133, 1136 (10th Cir. 2004). When a district court does this, it must provide the parties with notice so that all factual allegations may be met with countervailing evidence.

We note, in addition, that although "[a] motion to dismiss based upon a jurisdictional ground and 12 O.S. § 2012(B)(1) is not converted to a motion for summary judgment by reliance upon facts not appearing on the face of a plaintiff's petition," Farley , ¶ 12, a statute of limitations defense is not to be viewed as jurisdictional, see Munsingwear, Inc. v. Tullis , 1976 OK 187, ¶ 6, 557 P.2d 899 ("As a limitation acting on the remedy and not the right[, a statute of limitations defense] is not ‘jurisdictional’ in the common law sense."). Similarly, in Lamb v. Rizzo , 391 F.3d 1133 (10th Cir. 2004), the court stated:[T]he district court resolved [the] motion to dismiss under Fed.R.Civ.P. 12(b)(6).

The MJ then recommended that Lavergne's defamation claims under state law be dismissed because they were not actionable as a matter of law under the "libel-proof plaintiff doctrine." See Lamb v. Rizzo, 391 F.3d 1133, 1137-38 (10th Cir. 2004). This doctrine recognizes that certain plaintiffs with criminal convictions who are notorious for their past criminal acts have such poor reputations that they are unlikely as a matter of law to recover more than nominal damages for an allegedly defamatory publication.

Plaintiff only references the autobiography to note that nowhere in the book does it state that plaintiff was interested in public transit or drawing up transit plans until 1998, therefore further supporting that defendant's allegations were false. Therefore, the court declines to consider defendant's extrinsic evidence at this stage, despite plaintiff's mentioning of the evidence in the complaint. SeeAlvarado v. KOB–TV, L.L.C. , 493 F.3d 1210 1215–16 (10th Cir.2007) ; cf.Lamb v. Rizzo , 391 F.3d 1133, 1137 (10th Cir.2004) (stating that the district court converted a motion to dismiss for failure to state a claim into motion for summary judgment when it considered defendant's extrinsic evidence in determining libel-proof plaintiff doctrine applied to bar plaintiff's claim). Unsupported by admitted evidence, defendant's claim that plaintiff is libel proof is premature, and the court will not consider it now.

Sizova, 282 F.3d 1324-25; Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Generally, when a party brings a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) and includes exhibits for the Court to consider, the Court must convert the motion to one for summary judgment pursuant to Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b); Lamb v. Rizzo, 391 F.3d 1133, 1137 n. 3 (10th Cir. 2004) (citing Nichols v. U.S., 796 F.2d 361, 364 (10th Cir. 1986)). In a case such as this where the movant clearly states that the motion is made, alternatively, pursuant to Fed.R.Civ.P. 56, where the nonmovant did not object to the consideration by the Court of the movant's exhibits, and where the nonmovant provided his own exhibits in response to the motion, the Court may consider the exhibits and rule on the motion pursuant to Rule 56 without further ado. Lamb, 391 F.3d at 1137 n. 3.

The magistrate judge, therefore, effectively reviewed these claims under the summary judgment standard. See Lamb v. Rizzo, 391 F.3d 1133, 1136 (10th Cir. 2004) (noting the district court, which purported to dismiss a claim, "clearly relied upon and incorporated into its order granting the motion material derived from documents outside the four corners of [the] complaint," thus "convert[ing] the motion to dismiss into a motion for summary judgment" (internal quotation marks omitted)). The district court accepted the magistrate judge's recommendation and granted the "[d]efendants' motion to dismiss or for summary judgment," without specifying which alternative motion was being granted.

We thus proceed to consider the SBA's exhaustion defense under the standards of summary judgment, affirming the district court's ruling if "there is no genuine dispute as to any material fact and [the SBA] is entitled to judgment as a matter of law," Fed. R. Civ. P. 56(a). See Lamb v. Rizzo, 391 F.3d 1133, 1137 n.3 (10th Cir. 2004) (employing summary-judgment standard where district court had tacitly converted defendant's motion to dismiss into motion for summary judgment and plaintiff had "not only failed to object to the exhibits attached to [the defendant's] motion to dismiss, but . . . also filed his own exhibits in response"); see also 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366, 178 (3d ed. 2004) (observing that "the appellate court is not bound by the particular designation that the district court places upon its disposition of the case," and that "whenever outside matters are presented to and not excluded by the [district] court, the motion will be considered by the appellate court as one for summary judgment even though the district court designates it a motion to dismiss"). II. Exhaustion

But Jones himself filed materials outside the pleadings in response to the motion to dismiss and therefore cannot now claim conversion was unfair or a surprise. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996) (a plaintiff who "submitted material beyond the pleadings in opposition to defendants' motion [to dismiss] . . . is scarcely in a position to claim unfair surprise or inequity"); seealso Lamb v. Rizzo, 391 F.3d 1133, 1137 n.3 (10th Cir. 2004) ("Mr. Lamb does not and cannot claim that the absence of notice prejudiced him.

But Ray filed materials outside the pleadings in response to that motion, and therefore cannot assert that its conversion was unfair. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996) (explaining that a party who "submitted material beyond the pleadings in opposition to defendants' motion [to dismiss] . . . is scarcely in a position to claim unfair surprise or inequity"); see also Lamb v. Rizzo, 391 F.3d 1133, 1137 n.3 (10th Cir. 2004) (reaching similar conclusion). III

“[T]he substantive law of the forum state applies ... [and] in the absence of authoritative precedent from the [Colorado] Supreme Court ... our job is to predict how that court would rule.” Lamb v. Rizzo, 391 F.3d 1133, 1138 (10th Cir.2004) (quotation marks and citations omitted). “A statement may be defamatory if it tends ... to harm the reputation of another [so] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”