Green v. Post

Full title: BARBARA GREEN, individually and on behalf of all heirs as the surviving…

Court: United States District Court, D. Colorado

Date published: Oct 2, 2007

Civil Action No. 07-cv-01522-WYD-MEH (D. Colo. Oct. 2, 2007)

Opinion

Civil Action No. 07-cv-01522-WYD-MEH.

October 2, 2007

ORDER

WILEY DANIEL, District Judge

THIS MATTER is before the Court on a review of Plaintiffs' Response to Defendants' Motion to Dismiss Fourth, Fifth, Seventh, Eighth, and Ninth Claims for Relief (filed September 25, 2007). Attached to the Response are matters outside the pleadings, including an investigative report, attendance record and certain policies and procedures.

The matters that Plaintiffs attach to the response relate to Defendants' motion to dismiss which seeks dismissal under FED. R. CIV. P. 12(b)(6). Accordingly, if the evidence attached to Plaintiffs' response is not excluded, the motion to dismiss must 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).

I find that it is appropriate to consider the evidence Plaintiffs attach to their response in resolving Defendants' motion. Accordingly, notice is hereby given that Defendants' Motion to Dismiss Fourth, Fifth, Seventh, Eighth, and Ninth Claims for Relief shall be treated as a motion for summary judgment and the evidence attached to the response shall be considered. Conversion of a motion to dismiss to a motion for summary judgment is proper where, even though the motion does not rely on matters outside the pleadings, plaintiff's response attaches such materials which are then considered by the court in deciding the motion. See Whitesel v. Sengenberger, 222 F.3d 861, 866 (10th Cir. 2000).

Any party who wishes to submit additional materials for the Court to consider in connection with the motion for summary judgment may do so by Tuesday, October 16, 2007. Alternatively, Defendants may attach such materials in their reply brief.

In conclusion, it is

ORDERED that Defendants' Motion to Dismiss Fourth, Fifth, Seventh, Eighth, and Ninth Claims for Relief (filed August 21, 2007) is converted to a motion for summary judgment. It is

FURTHER ORDERED that if any party wishes to submit additional material to be considered in connection with the motion for summary judgment, they shall do so by Tuesday, October 16, 2007. Alternatively, Defendants may submit such material in connection with their reply brief, which is due pursuant to the deadline set forth in D.C.COLO.LCivR 7.1.C.