Opinion
Civil Action No. 06-cv-02025-WYD-CBS.
May 2, 2007
ORDER
This civil action comes before the court on Defendants' Motion to Dismiss (filed January 18, 2007) (doc. # 15) and Mr. Tivis' "Reply to Defendants' Motion to Dismiss" ("Response") (filed April 27, 2007) (doc. # 32). Pursuant to the Order of Reference dated November 13, 2006 (doc. # 10) and the memorandum dated January 18, 2007 (doc. # 16), the Motion was referred to the Magistrate Judge.
Defendants brought their Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). ( See Defendants' Motion at p. 5). To his Response, Mr. Tivis has attached approximately 47 pages of documents as evidence. If, on a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, "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. . . ." Fed.R.Civ.P. 12(b); see also Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987) ("it was appropriate for the court . . . to convert the motion to a Rule 56 motion when extraneous evidence was submitted . . ."). Because materials outside the pleadings have been submitted, the court hereby notifies the parties that it will treat Defendants' Motion as one for summary judgment under Fed.R.Civ.P. 56. "Rule 56(c) in turn requires that the opposing party be given ten days notice prior to hearing of the motion within which to file opposing affidavits." Building and Const. Dept. v. Rockwell Intern. Corp., 7 F.3d 1487, 1496-97 (10th Cir. 1993). Accordingly,
IT IS ORDERED that:
1. The parties are hereby notified that the court will treat Defendants' Motion to Dismiss (doc. # 15) as a motion for summary judgment under Fed.R.Civ.P. 56.
2. On or before May 14, 2007, the parties may file any further materials outside the pleadings that they wish to file regarding the pending Motion.