Cross Continent Development, LLC v. Town of Akron, Colorado et al

Filing 103

ORDER. ORDERED that the portion of Defendants motion filed April 16, 2012, that seeks dismissal under Federal Rule of Civil Procedure (12)(b)(6) is converted to a motion for summary judgment. 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 Monday, June 25, 2012 by Chief Judge Wiley Y. Daniel on 06/13/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02413-WYD-KMT
CROSS CONTINENT DEVELOPMENT, LLC, a Colorado limited liability corporation
Plaintiff,
v.
TOWN OF AKRON, Colorado, a Colorado municipal corporation;
THE AKRON TOWN COUNCIL;
CARL S. McGUIRE II, Esq., in his official capacity as Attorney for the Town of Akron;
THE BOARD OF TRUSTEES OF THE TOWN OF AKRON; and
THE COLORADO PLAINS REGIONAL AIRPORT DEVELOPMENT COMMITTEE,
Defendants.

ORDER

THIS MATTER is before the Court on a review of Defendants’ Motion to Strike
Under Federal Rule of Civil Procedure 12(f) and to Dismiss Under Federal Rule of Civil
Procedure (12)(b)(6) (ECF No. 99). Plaintiff’s response to Defendants’ motion (ECF No.
100) contains matters outside the pleadings in the form of deposition testimony that are
relevant to the motion to dismiss. 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 its
response in resolving Defendants’ motion to dismiss under Rule 12(b)(6). Accordingly,

notice is hereby given that the portion of Defendants’ motion that seeks dismissal under
Rule 12(b)(6) shall be treated as a motion for summary judgment and the evidence
attached to the response shall be considered. 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 Monday, June 25, 2012.
In conclusion, it is
ORDERED that the portion of Defendants’ motion filed April 16, 2012, that seeks
dismissal under Federal Rule of Civil Procedure (12)(b)(6) 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
Monday, June 25, 2012.
Dated: June 13, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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