Edwards v. Bellotte , 388 F. App'x 334 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2110
TAMETTA BELLOTTE, Individually; E. B.; C. B., by and
through their next friend and mother, Tametta Bellotte,
Plaintiffs,
v.
TRACY L. EDWARDS, Detective; P. G. SMITH, Deputy; KEITH
SIGULINSKY, Corporal, Ranson Police Department, formerly
UNKNOWN DEFENDANT ONE; ADAM LETTS, Corporal, Charles Town
Police Department, formerly UNKNOWN DEFENDANT TWO; ROBERT
SELL, Corporal, Jefferson County Sheriff's Department,
formerly UNKNOWN DEFENDANT THREE; KEVIN BOYCE, Corporal,
Jefferson County Sheriff's Department, formerly UNKNOWN
DEFENDANT FOUR; JAMES TENNANT, Deputy, Jefferson County
Sheriff's Department, formerly UNKNOWN DEFENDANT FIVE;
BRANDON HAYNES, Deputy, Jefferson County Sheriff's
Department, formerly UNKNOWN DEFENDANT SIX; SAM SMITH,
Patrolman, Charles Town Police Department, formerly UNKNOWN
DEFENDANT SEVEN; ANTHONY MANCINE, Patrolman, Charles Town
Police Department, formerly UNKNOWN DEFENDANT EIGHT; PATRICK
NORRIS, Patrolman, Ranson Police Department,
Defendants – Appellants,
and
WAL-MART STORES EAST, L.P.,
Defendant,
v.
SAMUEL JOSEPH BELLOTTE,
Third Party Defendant - Appellee.
No. 09-2271
TAMETTA BELLOTTE, Individually; E. B.; C. B., by and
through their next friend and mother, Tametta Bellotte,
Plaintiffs - Appellants,
v.
WAL-MART STORES EAST, L.P.,
Defendant – Appellee,
and
TRACY L. EDWARDS, Detective; P. G. SMITH, Deputy; KEITH
SIGULINSKY, Corporal, Ranson Police Department, formerly
UNKNOWN DEFENDANT ONE; ADAM LETTS, Corporal, Charles Town
Police Department, formerly UNKNOWN DEFENDANT TWO; ROBERT
SELL, Corporal, Jefferson County Sheriff's Department,
formerly UNKNOWN DEFENDANT THREE; KEVIN BOYCE, Corporal,
Jefferson County Sheriff's Department, formerly UNKNOWN
DEFENDANT FOUR; JAMES TENNANT, Deputy, Jefferson County
Sheriff's Department, formerly UNKNOWN DEFENDANT FIVE;
BRANDON HAYNES, Deputy, Jefferson County Sheriff's
Department, formerly UNKNOWN DEFENDANT SIX; SAM SMITH,
Patrolman, Charles Town Police Department, formerly UNKNOWN
DEFENDANT SEVEN; ANTHONY MANCINE, Patrolman, Charles Town
Police Department, formerly UNKNOWN DEFENDANT EIGHT; PATRICK
NORRIS, Patrolman, Ranson Police Department,
Defendants,
v.
SAMUEL JOSEPH BELLOTTE,
Third Party Defendant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cv-00094-JPB)
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Submitted: June 29, 2010 Decided: July 21, 2010
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jason P. Foster, STEPTOE & JOHNSON, PLLC, Martinsburg, West
Virginia; Thomas E. Carroll, CARROLL & TURNER, P.S.C.,
Monticello, Kentucky, for Appellants. Joseph L. Caltrider,
BOWLES RICE MCDAVID GRAFF & LOVE, LLP, Martinsburg, West
Virginia; Thomas E. Carroll, CARROLL & TURNER, P.S.C.,
Monticello, Kentucky, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Tracy L. Edwards and co-defendants (“the police
officers”) appeal the district court’s order dismissing their
third-party complaint against Samuel Bellotte. Tametta Bellotte
and her children appeal the district court’s dismissal of her
complaint against Wal-Mart Stores East, L.P. (“Wal-Mart”). For
the reasons that follow, we affirm both judgments.
The police officers argue on appeal that the district
court erred by applying the wrong standard for a Fed. R. Civ. P.
12(b) motion to dismiss. This court generally follows the “Four
Corners Rule,” whereby, in considering a Rule 12(b)(6) motion, a
court may “consider the complaint itself and any documents that
are attached to it.” CACI Int'l, Inc. v. St. Paul Fire & Marine
Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009). A court may also
consider a document attached by the defendant if such a document
“was integral to and explicitly relied on in the complaint and
if the plaintiffs do not challenge its authenticity.” Am.
Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234
(4th Cir. 2004) (internal quotation marks and alterations
omitted).
Under this case law, the police officers are correct
that, by relying upon the affidavit filed by Samuel Bellotte,
the district court converted the motion to dismiss into one for
summary judgment. However, “[i]t is well settled that district
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courts may convert a Rule 12(b)(6) motion to dismiss into a Rule
56 motion for summary judgment, allowing them to assess whether
genuine issues of material fact do indeed exist.” Bosiger v.
U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). Although the
district court did not explicitly inform the parties that it was
converting the motion to dismiss into a summary judgment motion,
“appellate courts may take the district court’s consideration of
matters outside the pleadings to trigger an implicit
conversion.” Id. Such an approach serves judicial economy
because it “spar[es] the district court an unnecessary remand.”
Id. With the proceedings in the lower court so understood, it
is clear that the he district court did not apply an incorrect
standard in denying the motion to dismiss.
The police officers next argue that the district court
erroneously determined that Samuel Bellotte did not owe them a
duty of care for the purposes of their negligence claim against
him. We cannot agree. Under West Virginia law, a plaintiff may
recover for negligence by establishing: (1) a duty that the
defendant owes to him; (2) a negligent breach of that duty; and
(3) injuries received thereby, resulting proximately from the
breach of that duty. Webb v. Brown & Williamson Tobacco Co., 2
S.E.2d 898, 899 (W. Va. 1939). The issue of whether a duty
exists is intertwined with the issues of foreseeability.
Aikens v. Debow, 541 S.E.2d 576, 581 (W. Va. 2000).
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We concur with the district court’s holding that the
police officers’ allegedly tortious actions were not foreseeable
to the reasonable person in Samuel Bellotte’s position, and
therefore find no error in the dismissal of the officers’
negligence claim. We hold the same with regard to the police
officers’ claim that Samuel Bellotte was the proximate cause of
the injuries sustained by Tametta Bellotte. For the same reason
that the officers cannot show foreseeability, they also cannot
demonstrate causation. We therefore affirm the district court’s
dismissal of the police officers’ third-party complaint against
Samuel Bellotte.
Tametta Bellotte appeals the district court’s
dismissal of her complaint against Wal-Mart. She argues first
that the district court improperly dismissed her complaint as
untimely served. Because we find adequate grounds for dismissal
on the merits, we decline to rule on whether the district court
improperly began running the Fed. R. Civ. P. 4(m) time to serve
from the first complaint rather than from the second amended
complaint.
Tametta Bellotte’s next argument on appeal is that the
district court erred in applying Virginia law to all of her
claims against Wal-Mart.
This court reviews a district court’s choice of law
determinations de novo. See United States v. Marin, 961 F.2d
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493, 496 (4th Cir. 1992). A federal court exercising diversity
jurisdiction must apply the choice of law rules of the state in
which it sits. See Seabulk Offshore, Ltd. v. American Home
Assur. Co., 377 F.3d 408, 418-19 (4th Cir. 2004) (citations
omitted). Accordingly, the West Virginia district court was
bound by West Virginia choice of law rules in determining which
state’s law governed the parties’ dispute.
West Virginia courts apply the lex loci delicti choice
of law rule; that is, the substantive rights between the parties
are determined by the place of the injury. McKinney v.
Fairchild Intern. Inc., 487 S.E.2d 913, 922 (W. Va. 1997).
Here, the injuries alleged by Tametta Bellotte took place both
in Virginia and West Virginia, depending on which cause of
action is at issue. Her causes of action against Wal-Mart for
invasion of privacy allege injury occurring in Virginia;
accordingly, Virginia law applies to that element of the
complaint. As to her causes of action for negligence and
intentional infliction of emotional distress, however, West
Virginia law applies because the injury alleged (the nighttime
raid by police on the Bellottes’ home) took place in West
Virginia.
Turning to her gross negligence claim, Tametta
Bellotte claims that the district court improperly dismissed the
claim on the merits. We disagree.
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On appeal, the only duty Tametta Bellotte alleges is
the general duty of care to not make allegations to law
enforcement that Samuel Bellotte was a child pornographer. Her
complaint does not actually allege that Wal-Mart was negligent
in its reporting the photographs to the police. However, even
construing the complaint broadly to incorporate this theory of
negligence, Wal-Mart still did not owe a duty to Tametta
Bellotte or her children. There is no evidence in the record
that Wal-Mart was aware or should have been aware that Samuel
Bellotte was married and had children at home. Samuel Bellotte
did not sue Wal-Mart, and Tametta Bellotte and her children
cannot sue based on a legal duty owed to one who is not a
plaintiff. Moreover, as previously discussed, the allegedly
tortious actions of the police officers constitute an
intervening proximate cause of her injury that relieves Wal-Mart
of liability. See Wolf v. Faquier County Bd. of Supervisors,
555 F.3d 311 (4th Cir. 2009).
With respect to Tametta Bellotte’s claim that Wal-Mart
committed the tort of intentional infliction of emotional
distress, we concur with the district court in holding that she
cannot make such a claim. To succeed on an intentional
infliction of emotional distress claim under West Virginia law,
a plaintiff must prove four elements:
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(1) that the defendant’s conduct was atrocious,
intolerable, and so extreme and outrageous as to
exceed the bounds of decency; (2) that the defendant
acted with intent to inflict emotional distress, or
acted recklessly when it was certain or substantially
certain emotional distress would result from his
conduct; (3) that the actions of the defendant caused
the plaintiff to suffer emotional distress; and
(4) that the emotional distress suffered by the
plaintiff was so severe that no reasonable person
could be expected to endure it.
Travis v. Alcon Labs, Inc., 504 S.E.2d 419, 425 (W. Va. 1998).
Even taking her allegations as true, Tametta Bellotte cannot
prove that Wal-Mart or its employees knew of her existence. She
therefore cannot sustain an action for intentional infliction of
emotional distress.
Tametta Bellotte next claims that Wal-Mart committed
the tort of invasion of privacy against her and her children.
Again, because the injury (the invasion itself) took place at a
Wal-Mart located in Virginia, Virginia substantive law applies.
Virginia law recognizes only a limited cause of action for
invasion of privacy when a defendant uses the name or picture of
a plaintiff without authorization. See Va. Code. Ann. § 8.01-40
(Michie 2009). Virginia courts have never recognized a common
law tort of invasion of privacy. See Smith v. Dameron, 1987 WL
488719 at *3 (Va. Cir. Ct. 1987); Cohen v. Sheehy Ford of
Springfield, Inc., 1992 WL 884552 at 2 (Va. Cir. Ct. 1992).
Because the courts of Virginia do not recognize the tort as
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alleged, we find that the district court did not err in
dismissing this claim.
Finally, we find that because grounds existed to
dismiss Tametta Bellotte’s claims against Wal-Mart on the
merits, we need not address whether Wal-Mart is entitled to
statutory immunity.
Accordingly, we affirm the district court’s judgments.
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
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