Opinion
Civil Action No. 08-cv-00841-WYD-KMT.
October 21, 2008
ORDER
THIS MATTER is before the Court on Counterclaim Defendant's Motion to Dismiss American Sterling Bank's Counterclaim (filed October 20, 2008). The Motion seeks to dismiss the Counterclaim pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Attached to the Brief in Support of the Motion is an affidavit.
Pursuant to the Federal Rules, if a court considers matters outside of the pleadings, a motion to dismiss pursuant to Rule 12(b)(6) should be treated as a motion for summary judgment. FED. R. CIV. P. 12(b); Lucero v. Gunter, 52 F.3d 874, 877 (10th Cir. 1995). While Counterclaim Defendant asserts in the Brief that its reference to the matters outside the pleadings does not require conversion of the motion, I disagree. While the documents attached to the affidavit may be referred to in the Counterclaim, the affidavit is not. Further, the affidavit is not a document that is central to the complaint. Accordingly, if I were to consider the affidavit, the motion would need to be converted to a summary judgment motion. However, if I treat the motion as a motion for summary judgment, it fails to comply with my Practice Standards. Accordingly, it is
ORDERED that Counterclaim Defendant's Motion to Dismiss American Sterling Bank's Counterclaim and Brief in Support of Counterclaim Defendant's Motion to Dismiss American Sterling Bank's Counterclaim (Doc. # 50-1 and 50-2) are STRICKEN with leave to refile. Counterclaim Defendant Lehman Brothers Bank, FSB may refile the Motion and Brief within ten (10) days as a motion to dismiss without the accompaniment of affidavits or other matters outside the pleadings. In the alternative, Counterclaim Defendant may refile the Motion and Brief within ten (10) days as a motion for summary judgment in compliance with this Court's Practice Standards.