Opinion
Civil Action No. 07-cv-00593-WYD-MEH.
April 24, 2007
ORDER
THIS MATTER is before the Court on Defendants' Motion to Dismiss filed April 20, 2007. Attached to the Brief in Support of Motion to Dismiss is evidence outside of the pleadings in this matter. Pursuant to the Federal Rules, if the Court considers matters outside of the pleadings, a motion to dismiss pursuant to Rule 12(b)(6) should 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). However, if the Court treats this motion as a motion for summary judgment, it fails to comply with this Court's Hearing, Conference Trial Procedures. Accordingly, it is hereby
ORDERED that Defendants' Motion to Dismiss and Brief in Support of Motion to Dismiss are STRICKEN with leave to refile. Defendants may refile the motion within ten (10) days as a motion to dismiss without the accompaniment of evidence outside the pleadings. In the alternative, Defendants may refile the motion within ten (10) days as a motion for summary judgment in compliance with this Court's Hearing, Conference Trial Procedures. If Defendants choose to refile the motion as a motion for summary judgment, it is
FURTHER ORDERED that Defendant HBE Corporation shall file an answer to the Complaint within twenty (20) days of receipt of this Order.