Opinion
Civil Action No. 05-cv-01356-WYD-OES.
November 1, 2005
ORDER
THIS MATTER is before the Court on Defendant J J Maintenance, Inc.'s Motion to Dismiss, filed October 14, 2005 ("Motion to Dismiss"). Attached to Plaintiff's Response to the Motion to Dismiss, filed October 28, 2005, are three exhibits which I find constitute 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 Court finds that it is appropriate to consider matters outside of the pleadings in resolving Defendant's motion. Accordingly, notice is hereby given that Defendant's Motion to Dismiss shall be treated by the Court as a Motion for Summary Judgment. 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 Monday, November 14, 2005. Accordingly, it is
ORDERED that Defendant J J Maintenance, Inc.'s Motion to Dismiss, filed October 14, 2005, is converted to a Motion for Summary Judgment. It is
FURTHER ORDERED that if counsel for any party wishes to submit additional material to be considered in connection with the Motion for Summary Judgment, they shall do so by Monday, November 14, 2005.