Can a Court of Appeals treat a Rule 12(b)(6) motion to dismiss as a converted motion for summary judgment under Rule 12(d) when the district court itself decided the motion as one to dismiss under Rule 12(b)(6) and did not treat the motion as one converted to summary judgment pursuant to Rule 12(d)?

QUESTIONS PRESENTED Federal Rule of Civil Procedure 12(d) provides, “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” 1. Can a Court of Appeals treat a Rule 12(b)(6) motion to dismiss as a converted motion for summary judgment under Rule 12(d) when the district court itself decided the motion as one to dismiss under Rule 12(b)(6) and did not treat the motion as one converted to summary judgment pursuant to Rule 12(d)? 2. Does the non-movant’s presentation to the district court of materials beyond the complaint alone satisfy the “reasonable opportunity” of Rule 12(d), or is something more required?