Opinion
Civil Action No. 08-cv-00955-WYD-CBS.
May 20, 2009
ORDER
THIS MATTER is before the Court on Defendants', First American Mortgage Funding, LLC, First American Mortgage, Inc., Kevin B. Jordan, William DePuy, Jeffrey Jordan, Shaun Jordan, Mark Campbell, and Construction Disbursement Services, Inc., Motion to Dismiss Plaintiff's Third, Fourth, Fifth, Sixth, and Eleventh Claims for Relief and Plaintiff's Seventh Claim for Relief as to First American Mortgage, LLC [doc. #125], filed April 20, 2009. Attached to Plaintiff's response to the Motion [doc. #140], filed May 19, 2009, are matters outside the pleadings in the form of twenty-six exhibits. Pursuant to the Federal Rules of Civil Procedure, 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 its response in resolving the present motion. Accordingly, notice is hereby given that the 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).
In light of the conversion of the motion, Defendants shall have until Monday, June 8, 2009 to file their reply, and they may attach to their reply additional materials for the Court to consider in connection with the motion for summary judgment.
In conclusion, it is
ORDERED that Defendants', First American Mortgage Funding, LLC, First American Mortgage, Inc., Kevin B. Jordan, William DePuy, Jeffrey Jordan, Shaun Jordan, Mark Campbell, and Construction Disbursement Services, Inc., Motion to Dismiss Plaintiff's Third, Fourth, Fifth, Sixth, and Eleventh Claims for Relief and Plaintiff's Seventh Claim for Relief as to First American Mortgage, LLC [doc. #125], filed April 20, 2009, is converted to a motion for summary judgment. It is
FURTHER ORDERED that Defendants shall file their reply not later than Monday, June 8, 2009, and they may attach to their reply additional materials for the Court to consider in connection with the motion for summary judgment.