Olson

MEMORANDUM *

Plaintiffs Joseph and Monica Olson, Javier Vargas, and Amparo Villanueva appeal the district court’s dismissal of their Federal Tort Claims Act (“FTCA”) suit pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). They contend that the district court erred by finding that the discretion-' ary function exception to the FTCA barred the action, and that Arizona would not impose tort liability on a private person in similar circumstances. 1 Plaintiffs maintain that the government should be liable for two specific actions: (1) Mineral Safety and Health Administration (“MSHA”) Field Office Supervisor James Kirk’s failure to evaluate six anonymous safety complaints; and (2) MSHA Inspector Alan Varland’s failure to inspect the Mission Mine in its entirety. We have jurisdiction' pursuant to 28 U.S.C. § 1291 , and we reverse and remand.

Each side supported its respective argument for or against dismissal with materials beyond the pleadings. By considering these materials, the district court transformed the motion to dismiss into a “speaking motion” that should have been treated as a motion for summary judgment. See Fed.R.Civ.P. 12(d); Black v. Payne, 591 F.2d 83, 89 (9th…