White River Village, LLP, et al., v. Fidelity and Deposit Company of Maryland, et al.,

Filing 483

NOTICE OF CONVERSION TO SUMMARY JUDGMENT re: 461 MOTION to Dismiss Cookey's Mechanical's Counterclaims. It is ORDERED that any additional briefing by either party must be submitted on or before September 6, 2013. by Magistrate Judge Michael E. Hegarty on 8/29/2013. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Case No. 08-cv-00248-REB-MEH
(Consolidated with Civil Action No. 08-cv-00359-REB-BNB)
WHITE RIVER VILLAGE, LLP and WHITE RIVER TOWNHOMES, LLC,
Plaintiffs/Cross Defendants,
v.
FIDELITY AND DEPOSIT COMPANY OF MARYLAND,
Defendant/Third-Party Plaintiff/Counter Defendant,
and
HEPWORTH-PAWLAK GEOTECHNICAL, INC., a Colorado Corporation,
Consolidated Defendant,
v.
COOKEY’S MECHANICAL, INC.,
Third-Party Defendant/Counter Claimant/Cross Claimant/Counter Defendant,
S&S JOINT VENTURE,
Third-Party Defendant/Cross Defendant/Counter Claimant,
CLASS CONSTRUCTION, INC.,
BELLAVISTA BUILDERS,
CRUZAN CONSTRUCTION COMPANY,
C.E.S.M, LLC,
G CONSTRUCTION, INC.,
RENTERIA ROOFING,
EC CONTRACTORS, LLC,
M.M. SKYLINE CONTRACTING, INC., a/k/a Skyline Contracting,
STAR PRECAST CONCRETE,
KOJIN CONSTRUCTION, LLC,
B&B PLUMBING, INC., d/b/a B&B Plumbing and Heating,
WILLIAM BERESFORD, d/b/a William Beresford Painting,
DEKKER/PERICH/SABATINI, LTD.,
Third-Party Defendants,

JONATHAN REED & ASSOCIATES, INC.,
Counter/Cross Defendant,

NOTICE OF CONVERSION TO SUMMARY JUDGMENT
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant/Third Party Plaintiff Fidelity & Deposit Co. of Maryland’s
(F&D) renewed Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) Cookey’s Mechanical’s
Counterclaims, Docket #162 (“Motion”), alleging that Cookey’s Mechanical fails to state a claim
upon which relief may be granted because its Second Counterclaim for Relief against F&D is barred
by the applicable statute of limitations [docket #461]. With its motion, F&D attached two
documents in support of its position.1
Because F&D wishes to support the Motion with documents outside the pleadings, it is
proper to inform the parties that the Court will convert the Motion to Dismiss into a Motion for
Summary Judgment pursuant to Fed. R. Civ. P. 56. See David v. City & County of Denver, 101 F.3d
1344, 1352 (10th Cir. 1996). Consequently, either party may submit any additional briefing on the
Motion, and in such additional briefing, the parties may respond to the materials already submitted
by F&D with any “material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Because the
motion is not yet fully briefed, Cookey’s will have an opportunity to respond if F&D chooses to file
additional materials with its submission.
Therefore, it is ORDERED that any additional briefing by either party must be submitted on

1

Actually, F&D filed no attachments to the present renewed motion; rather, both F&D and
Cookey’s refer to documents that were attached to the original motion to dismiss filed on December
1, 2008. Docket #193. The Court finds that the renewed motion and the original motion are
substantially similar, if not identical, to each other in form and content. Therefore, the Court will
consider the documents attached to the original motion.
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or before September 6, 2013.
Dated at Denver, Colorado, this 29th day of August, 2013.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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