WHITE RIVER VILLAGE, LLP v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, 08-cv-00248-REB-MEH (2013)
Court: District Court, D. Colorado
Number: infdco20130830823
Visitors: 5
Filed: Aug. 29, 2013
Latest Update: Aug. 29, 2013
Summary: NOTICE OF CONVERSION TO SUMMARY JUDGMENT MICHAEL E. HEGARTY, Magistrate Judge. Before the Court is Defendant/Third Party Plaintiff Fidelity & Deposit Co. of Maryland's (F&D) renewed Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) Cookey's Mechanical's Counterclaims, Docket #162 ("Motion"), alleging that Cookey's Mechanical fails to state a claim upon which relief may be granted because its Second Counterclaim for Relief against F&D is barred by the applicable statute of limitations [doc
Summary: NOTICE OF CONVERSION TO SUMMARY JUDGMENT MICHAEL E. HEGARTY, Magistrate Judge. Before the Court is Defendant/Third Party Plaintiff Fidelity & Deposit Co. of Maryland's (F&D) renewed Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) Cookey's Mechanical's Counterclaims, Docket #162 ("Motion"), alleging that Cookey's Mechanical fails to state a claim upon which relief may be granted because its Second Counterclaim for Relief against F&D is barred by the applicable statute of limitations [dock..
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NOTICE OF CONVERSION TO SUMMARY JUDGMENT
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is Defendant/Third Party Plaintiff Fidelity & Deposit Co. of Maryland's (F&D) renewed Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) Cookey's Mechanical's Counterclaims, Docket #162 ("Motion"), alleging that Cookey's Mechanical fails to state a claim upon which relief may be granted because its Second Counterclaim for Relief against F&D is barred by the applicable statute of limitations [docket #461]. With its motion, F&D attached two documents in support of its position.1
Because F&D wishes to support the Motion with documents outside the pleadings, it is proper to inform the parties that the Court will convert the Motion to Dismiss into a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56. See David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996). Consequently, either party may submit any additional briefing on the Motion, and in such additional briefing, the parties may respond to the materials already submitted by F&D with any "material that is pertinent to the motion." Fed. R. Civ. P. 12(d). Because the motion is not yet fully briefed, Cookey's will have an opportunity to respond if F&D chooses to file additional materials with its submission.
Therefore, it is ORDERED that any additional briefing by either party must be submitted on or before September 6, 2013.
FootNotes
1. Actually, F&D filed no attachments to the present renewed motion; rather, both F&D and Cookey's refer to documents that were attached to the original motion to dismiss filed on December 1, 2008. Docket #193. The Court finds that the renewed motion and the original motion are substantially similar, if not identical, to each other in form and content. Therefore, the Court will consider the documents attached to the original motion.
Source: Leagle
