Opinion
No. 2:06-CV-195.
September 6, 2006
OPINION AND ORDER
This matter is before the Court on the letter filed by Defendant, Wayne Walden ("Walden"), on August 25, 2006. For the reasons set forth below, Walden's request that this Court dismiss this suit is DENIED. Magistrate Judge Cherry's prior order that Walden file an answer on or before September 8, 2006 is AFFIRMED.
The letter requests that this action be dismissed and is therefore construed as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The letter, however, recites various facts not included in the pleadings which Walden believes warrant dismissal. If, on a Rule 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). Under the circumstances of this case, this Court declines to treat the instant petition as a motion for summary judgment.
Because the request is based entirely on facts outside the pleadings, it must fail. Accordingly, Walden's request that this Court dismiss this suit is DENIED. Magistrate Judge Cherry's prior order that Walden file an answer on or before September 8, 2006, is AFFIRMED.