Opinion
Civil Action No. 11-cv-01135-PAB-KMT
01-04-2012
GEORGE FRANCIS OSEI, Plaintiff, v. JAMES BROOKS, DAVID NGUYEN, T. TOBIN, and THE CITY AND COUNTY OF DENVER, Defendants.
Magistrate Judge Kathleen M. Tafoya
ORDER
This matter is before the court on "Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint for Damages" (Doc. No. 30) filed July 14, 2011.
Upon a review of the Motion, Defendants ask the court to consider a surveillance video in support of their arguments. "A 12(b)(6) motion must be converted into a motion for summary judgment if 'matters outside the pleadings are presented to and not excluded by the court' and 'all parties . . . [are] given a reasonable opportunity to present all material made pertinent to such a motion by [Fed. R. Civ. P. ] 56.' " GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Fed. R. Civ. P. 12(d)); see also Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 713 (10th Cir. 2005) (holding that where the District Court relied on facts presented in affidavits, a Rule 12(b)(6) motion was properly converted into a motion for summary judgment). Though Defendants argue that "[b]ecause Plaintiff refers to the surveillance video in his Second Amended Complaint and it is central to his claims, the Court may consider the video in ruling on Defendants' Motion to Dismiss without converting it into a summary judgment motion" (Mot. at 2, n.1), the court disagrees.
Accordingly, Defendants' motion to dismiss will be converted to one for summary judgment. If Defendants do not wish to have the court consider their converted motion for summary judgment, they may, no later than January 11, 2012, file answers or an amended motion to dismiss, as well as a motion to withdraw their converted motion for summary judgment. If Defendants do not file answers, an amended motion to dismiss, or a motion to withdraw their converted motion for summary judgment on or before January 11, 2012, Plaintiff may file a response to the converted motion for summary judgment no later than January 25, 2012, and Defendants may file a reply in support of the converted motion for summary judgment no later than February 1, 2012.
BY THE COURT:
______________________
Kathleen M. Tafoya
United States Magistrate Judge