Opinion
Civil Action No. 07-cv-00714-WYD-MJW.
August 14, 2007
ORDER
THIS MATTER is before the court in connection with GE Healthcare Bio-Sciences Corp.'s Motion to Dismiss, filed August 13, 2007 (docket #44). This is a products liability action. In the Motion to Dismiss, Defendant GE Healthcare Bio-Sciences Corp. contends that it "had no involvement with the product at issue in this lawsuit and Plaintiffs cannot impute liability to GE Healthcare Bio-Sciences Corp. for actions allegedly taken solely by a separate company, GE Healthcare Inc." Mtn. at 1. In support of the Motion to Dismiss, Defendant has attached the affidavit Vito Pulito, which states that "GE Healthcare Bio-Sciences Corp. does not and has never engaged in any commercial or other activity with respect to [the product at issue in this lawsuit]." Aff. at ¶ 7. I find that this Affidavit constitutes matters outside the pleadings.
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). The rule is mandatory. Defendant asserts that it is unnecessary to convert the Motion to Dismiss to a Motion for Summary Judgment "to resolve any issue other than whether it is a `manufacturer' within the meaning of C.R.S. § 13-21-401(1) and 402(1)." However, a review of the Motion to Dismiss reveals that the only way to resolve the issues raised in the motion is to consider the information in the Affidavit. Defendant GE Healthcare Bio-Sciences Corp.'s Motion to Dismiss shall be treated by the Court as a Motion for Summary Judgment. Accordingly, it is
ORDERED that GE Healthcare Bio-Sciences Corp.'s Motion to Dismiss, filed August 13, 2007 (docket #44) is converted to a Motion for Summary Judgment.