Opinion
Civil Action No. 07-cv-00334-WYD-CBS.
April 18, 2007
ORDER
THIS MATTER is before the Court on a review of the pending Motion to Dismiss filed by Defendant on March 19, 2007 (docket #7) and Plaintiff's Response in Opposition to Defendant's Motion to Dismiss, filed April 16, 2007 (docket #17). Plaintiff's Response attaches matters outside the pleadings including an Affidavit of Daniel H. Overmyer, a Sales and Purchase Agreement, various letters, e-mails and other documents.
Pursuant to the Federal Rules, 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); Lucero v. Gunter, 52 F.3d 874, 877 (10th Cir. 1995).
Accordingly, it is hereby
ORDERED that Defendant's Motion to Dismiss is converted to a motion for summary judgment. It is
FURTHER ORDERED that Defendant may submit materials outside the pleadings in connection with its Reply in support of the motion.