Murray Co. v. Liberty Mutual Insurance

MEMORANDUM *

Murray Company appeals the district court’s partial summary judgment in favor of Liberty Mutual Insurance Company (“Liberty”) with respect to Murray’s breach of contract claim. Because we agree with the district court’s finding that the commercial insurance policy did not provide coverage for Murray’s claims, we affirm.

I.

As an initial matter, Appellant’s assertion that the district court erred in treating Liberty’s motion to dismiss as a motion for partial summary judgment is without merit. Pursuant to Federal Rule of Civil Procedure 12(b)(6), a court may convert a motion to dismiss into a motion for summary judgment. FED. R. CIV. P. 12(b)(6); see also In re Rothery, 143 F.3d 546, 549 (9th Cir.1998). Moreover, a court *723 must treat a motion to dismiss as a motion for summary judgment if matters outside the pleadings are submitted by the parties and considered by the court. See San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir.1998) (emphasis added).

Here, the court considered declarations in support of their respective positions filed by both parties. Murray, therefore, was on notice that the motion to dismiss was subject to…