Bituminous Casualty Corporation v. Hartford Casualty Insurance Company

Filing 49

ORDER. ORDERED that Defendant Hartford Casualty Insurance Company's Motion to Dismiss Counts III, IV and V of Plaintiff Bituminous Casualty Company's Amended Complaint filed August 23, 2012 (ECF No. 38) is converted to a motion for summary judgment. ORDERED that Defendant may attach to its reply brief any material outside the pleadings that it wants the Court to consider in connection with its motion for summary judgment by Chief Judge Wiley Y. Daniel on 10/09/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 12-cv-00043-WYD-KLM
BITUMINOUS CASUALTY CORPORATION, an Illinois corporation,
Plaintiff,
v.
HARTFORD CASUALTY INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER
____________________________________________________________________________

THIS MATTER is before the Court in connection with Defendant Hartford
Casualty Insurance Company’s Motion to Dismiss Counts III, IV and V of Plaintiff
Bituminous Casualty Company’s Amended Complaint filed on August 23, 2012. The
motion sought to dismiss these claims pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6).
A response was originally filed by Plaintiff on September 17, 2012, but was
stricken by the Court by Minute Order of September 28, 2012, for exceeding the page
limitations set forth in my Practice Standards. That Minute Order also noted that the
response attached matters outside the pleadings which, if considered by the Court,
would require conversion of the motion to a motion for summary judgment, and that the
response did not address whether conversion is appropriate. Plaintiff was advised to
consider and address this issue in connection with the refiled response.
On October 5, 2012, Plaintiff refiled its response to Defendant’s motion to
dismiss. It again attached matters outside the pleadings, and stated that conversion of

the motion to dismiss was appropriate since Defendant’s motion relies on Rule 12(b)(6)
as a basis to dismiss the claims at issue. I agree that conversion is required. If the
evidence attached to Plaintiff’s response is not excluded, the motion to dismiss pursuant
to Rule 12(b)(6) must 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 Hartford Casualty Insurance Company’s motion to dismiss under
Rule 12(b)(6). Accordingly, notice is hereby given that Hartford’s motion to dismiss
shall be treated as a motion for summary judgment and the evidence attached to the
response shall be considered. Defendant may attach to its reply brief any matters
outside the pleadings that it wishes the Court to consider in connection with the motion
for summary judgment.
In conclusion, it is
ORDERED that Defendant Hartford Casualty Insurance Company’s Motion to
Dismiss Counts III, IV and V of Plaintiff Bituminous Casualty Company’s Amended
Complaint filed August 23, 2012 (ECF No. 38) is converted to a motion for summary
judgment. It is
FURTHER ORDERED that Defendant may attach to its reply brief any material
outside the pleadings that it wants the Court to consider in connection with its motion
for summary judgment.

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Dated: October 9, 2012
BY THE COURT:

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

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