Frazier et al v. Arapahoe County Weatherization Department

Filing 16

ORDER re: 15 Partial MOTION to Dismiss filed by Arapahoe County Weatherization Department. To assist me in resolving this matter, it is ORDERED that on or before Friday, May 1, 2009, Defendant shall file a brief statement by Chief Judge Wiley Y. Daniel on 4/23/09. (erv, ) (Modified on 4/24/2009 corrected spacing)(erv, ).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel Civil Action No. 08-cv-02730-WYD-BNB DAVID FRAZIER; and JUSTIN D. CLAIBORNE, Plaintiffs, v. ARAPAHOE COUNTY WEATHERIZATION DEPARTMENT, an agency of the State of Colorado, Defendant. ORDER THIS MATTER comes before the Court upon a review of Defendant's Partial Motion to Dismiss filed April 23, 2009, which attaches evidence outside of the pleadings. While the motion states that it is filed under Fed. R. Civ. P. 12(b), it does not state which subsection(s) of the Rule Defendant relies on. Pursuant to the Federal Rules, if a 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). While the motion does refer in part to lack of subject matter jurisdiction, which would not require conversion of the motion, it is unclear whether Defendant relies on Rule 12(b)(6) for any other portion of the motion. If the motion does need to be converted to a summary judgment motion, I must also consider whether to strike the motion and have Defendant submit a new summary judgment motion that complies with

my Practice Standards. To assist me in resolving this matter, it is ORDERED that on or before Friday, May 1, 2009, Defendant shall file a brief statement addressing these issues. Dated: April 23, 2009 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge

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