Touchstone Group, LLC v. Rink et al

Filing 48

ORDER denying 43 Motion to Strike or Exclude. ORDERED that Defendants Tatum, LLC and SFN Group, Inc.'s Motion to Dismiss Counts I, II, III, IV, VI and XI of Plaintiff's Complaint 29 is converted to a Motion for Summary Judgment. ORD ERED that any party who wishes to submit additional materials for the Court to consider in connection with the Motion for Summary Judgment may do in connection with the filing of its Response and Reply brief by Chief Judge Wiley Y. Daniel on 04/20/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-02971-WYD-KMT
TOUCHSTONE GROUP, LLC on behalf of itself and all others similarly situated,
Plaintiff,
v.
DANIEL J. RINK; TATUM, LLC; SFN GROUP, INC.; CHRISTOPHER FLANNERY;
ASTOR, WEISS, KAPLAN, & MANDEL LLP; ESTILL & LONG, LLC;
STEVEN GRANOFF, CPA;
KRASSENSTEIN, GRANOFF & UNGER, LLC;
CARBON DIVERSION, INC.;
TRACS GROWTH INVESTMENT; AND
JOHN DOES 1 - 100,
Defendants.

ORDER

THIS MATTER is before the Court on Plaintiff’s Motion to Strike or Exclude, filed
April 18, 2012 [ECF No. 43]. Therein, Plaintiff states that the document identified as
Exhibit A attached to Defendants Tatum, LLC and SFN Group, Inc.’s Motion to Dismiss
is not the same document referred to in paragraph 60 of Plaintiff’s Class Action
Complaint. Therefore, I find it is appropriate to convert the Motion to Dismiss to a
Motion for Summary Judgment. Pursuant to the Federal Rules of Civil Procedure, if
matters outside the pleadings are presented to and not excluded by the Court, 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. Gunther, 52 F.3d 874, 877 (10th Cir. 1995). Accordingly,
-1-

it is hereby
ORDERED that Plaintiff’s Motion to Strike or Exclude, filed April 18, 2012 [ECF
No. 43] is DENIED. It is
FURTHER ORDERED that Defendants Tatum, LLC and SFN Group, Inc.’s
Motion to Dismiss Counts I, II, III, IV, VI and XI of Plaintiff’s Complaint, filed March 29,
2012 [ECF No. 29] is converted to a Motion for Summary Judgment. It is
FURTHER ORDERED that any party who wishes to submit additional materials
for the Court to consider in connection with the Motion for Summary Judgment may do
in connection with the filing of its Response and Reply brief.
Dated: April 20, 2012
BY THE COURT:

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

-2-