From Casetext: Smarter Legal Research

Osei v. Brooks

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Jan 4, 2012
Civil Action No. 11-cv-01135-PAB-KMT (D. Colo. Jan. 4, 2012)

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


Summaries of

Osei v. Brooks

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Jan 4, 2012
Civil Action No. 11-cv-01135-PAB-KMT (D. Colo. Jan. 4, 2012)
Case details for

Osei v. Brooks

Case Details

Full title:GEORGE FRANCIS OSEI, Plaintiff, v. JAMES BROOKS, DAVID NGUYEN, T. TOBIN…

Court:UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: Jan 4, 2012

Citations

Civil Action No. 11-cv-01135-PAB-KMT (D. Colo. Jan. 4, 2012)