Malibu Media v. John Does 1-42

Filing 105

ORDER. ORDERED that the parties file statements with the Court on or before Monday, February 11, 2013, advising whether the Court should consider the materials attached by Plaintiff to its response brief and whether Defendant Cameron's motion to dismiss should be converted to a motion for summary judgment by Judge Wiley Y. Daniel on 01/31/13. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-01953-WYD-MEH
MALIBU MEDIA, LLC,
Plaintiff,
v.
BRIAN BATZ, TARA W. CAMERON, JOHN DOES 7, 9-11, 15-31, 33-36, and 39,
Defendants.

ORDER

This matter is before the Court in connection with “Tara W. Cameron’s Motion to
Dismiss Second Amended Complaint [Doc#: 82], Pursuant to F.R.C.P. 12(b)(6), with
Incorporated Authority” filed December 27, 2012. Plaintiff’s Memorandum in Opposition
to the Motion filed on January 17, 2013, attaches matters outside the pleadings.
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); see also Whitesel v.
Sengenberger, 222 F.3d 861, 866 (10th Cir. 2000) (noting that conversion may be
proper when non-movant appends materials to opposition brief and court considers
them). Plaintiff did not, however, address whether the material attached to the
response requires the conversion of the motion to dismiss to a motion for summary
judgment, and I believe briefing is required on the issue. I also find that briefing is
appropriate as to whether the matters attached to the response should be considered.

Accordingly, it is
ORDERED that the parties file statements with the Court on or before Monday,
February 11, 2013, advising whether the Court should consider the materials attached
by Plaintiff to its response brief and whether Defendant Cameron’s motion to dismiss
should be converted to a motion for summary judgment.
Dated: January 31, 2013
BY THE COURT:

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

-2-