Sec. Serv. Fed. Cr. Union v. First A. Mtg. Funding

Full title: SECURITY SERVICE FEDERAL CREDIT UNION, Plaintiff, v. FIRST AMERICAN…

Court: United States District Court, D. Colorado

Date published: Oct 24, 2008

Civil Action No. 08-cv-00955-WYD-CBS (D. Colo. Oct. 24, 2008)

Opinion

Civil Action No. 08-cv-00955-WYD-CBS.

October 24, 2008

ORDER

WILEY DANIEL, District Judge

THIS MATTER is before the court on Defendants', Gilger Homes, LLC and Kirk Gilger, Motion to Dismiss Plaintiff's Fifth, Sixth, Ninth, Tenth and Eleventh Claims for Relief [doc. #43, filed September 26, 2008]. Attached to Plaintiff's response to this motion [doc. #51, filed October 16, 2008] are matters outside the pleadings in the form of an affidavit. 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).

I find that it is appropriate to consider the evidence Plaintiff attaches to her response in resolving Defendants' motion. Accordingly, notice is hereby given that Defendants' motion to dismiss 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, the 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 November 24, 2008. Alternatively, Defendants may attach such matters in their reply brief.

In conclusion, it is

ORDERED that Defendants', Gilger Homes, LLC and Kirk Gilger, Motion to Dismiss Plaintiff's Fifth, Sixth, Ninth, Tenth and Eleventh Claims for Relief [doc. #43, filed September 26, 2008] 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 November 24, 2008. 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.