Bair v. United States ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CAROLYN S. BAIR; HILTON HEAD 
ISLAND REALTY, INCORPORATED,
Plaintiffs-Appellants,
v.  No. 01-2279
UNITED STATES OF AMERICA; DARRELL
E. WATKINS,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-01-391-2-18)
Submitted: May 23, 2002
Decided: June 4, 2002
Before WIDENER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert E. Austin, Jr., AUSTIN & PEPPERMAN, Leesburg, Florida;
Mark W. McKnight, Charleston, South Carolina, for Appellants. J.
Strom Thurmond, Jr., United States Attorney, Joseph P. Griffith, Jr.,
Assistant United States Attorney, Charleston, South Carolina, for
Appellees.
2 BAIR v. UNITED STATES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Carolyn Bair and Hilton Head Island Realty, Inc., appeal the dis-
trict court’s orders dismissing and denying reconsideration of their
complaint filed against the United States and Darrell Watkins alleging
violations of the Federal Tort Claims Act (FTCA), 28 U.S.C.A.
§ 1346 (West 1994 & Supp. 2001), and Bivens v. Six Unknown
Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
The Appellees moved to dismiss under Fed. R. Civ. P. 12(b)(6),
asserting the claims were barred by the applicable statutes of limita-
tions. Because the parties submitted affidavits outside the pleadings,
the district court apparently considered the motion as a motion for
summary judgment under Fed. R. Civ. P. 56.
A district court’s decision to convert a motion to dismiss to a
motion for summary judgment is reviewed for abuse of discretion.
See Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998).
When a party has notice that a motion to dismiss will be treated as
a motion for summary judgment based on the consideration of matters
outside the pleadings, the district court is not formally required to
notify the party that the motion to dismiss will be treated as a motion
for summary judgment. Laughlin v. Metropolitan Washington Air-
ports Auth., 149 F.3d 253, 261 (4th Cir. 1998). Because Appellants
had sufficient notice that the motion to dismiss would be treated as
a motion for summary judgment, the district court did not err by con-
verting the motion to a motion for summary judgment under Rule 56.
Furthermore, Appellants made no showing under Rule 56(f) that addi-
tional discovery was necessary in order to respond to the motion.
We have reviewed the district court’s order dismissing Appellants’
claims based on the applicable statutes of limitations. We conclude
the district court properly determined Appellants’ claims were barred.
Accordingly, we affirm on the reasoning of the district court. See Bair
BAIR v. UNITED STATES 3
v. United States, No. CA-01-391-2-18 (D.S.C. July 10 & Sept. 5,
2001). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED