United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond Jackson, United States District Judge
the Court is Defendants Gerhard and Linda Sebers
("Defendants") Motion to Dismiss First Amended
Complaint for Failure to State a Claim upon Which Relief Can
be Granted ("Motion"), pursuant to Federal Rule of
Civil Procedure 1 2(b)(6). On May 11, 2016, the Court issued
an Order notifying the parties of its intent to convert the
Motion to a Motion for Summary Judgement pursuant to Federal
Rule of Civil Procedure 12(d) and adjudicate the matter
pursuant to Federal Rule of Civil Procedure 56. The parties
were provided an opportunity to file additional briefings and
elected not to; therefore, this matter is now ripe for
disposition. For the reasons stated below. Defendants'
Motion for Summary Judgement is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
Jerry Williford ("Plaintiff1), a domiciliary of Florida,
brings this personal injury action in diversity against
Defendants, a Virginia couple. Plaintiff seeks damages alter
allegedly injuring himself on a staircase inside the garage
apartment that he rented from Defendants. Am. Compl. ¶
10, ECF No. 4-1. The Amended Complaint consists of two
Counts. In Count One, Plaintiff contends that Defendants
failed to use reasonable care in keeping the apartment safe,
which directly and proximately caused his injuries.
Id. at ¶ 12-17. In Count Two, Plaintiff argues
that Defendants breached their rental agreement by violating
the Virginia Residential Landlord and Tenant Act, Va. Code.
§ 55-248.13. Id. at ¶ 19-21. Plaintiff
seeks compensatory damages for medical expenses, lost wages,
physical and mental suffering, and loss of enjoyment of life.
Id. at ¶ 17, 21.
filed their first Motion to Dismiss on August 19, 2015,
arguing that under Virginia law residential landlords do not
have an affirmative duty to maintain premises under tenant
possession and control. On August 28, 2015, Plaintiff filed a
Motion to Amend/Correct Complaint, which added Count Two.
Three days later, Plaintiff filed an Opposition to
Defendants' Motion to Dismiss, but only addressed Count
Two, claiming that Defendants were still liable for breach of
contract. On December 4, 2015, the Court granted the Motion
to Dismiss in part finding that Defendants had no duty,
absent fraud or concealment, to ensure the safety of the
apartment in question. ECF No. 8. The Court permitted the
parties to file briefs on the remaining count. On that same
day, Defendants filed the instant Motion. Defs.' Mot. to
Dismiss First Am. Compl., ECF No. 9. Attached to the Motion,
Defendants filed a September 2, 2015, sworn Affidavit stating
that Defendants owned only one single-family residence at the
time relevant to the Complaint and rented out a portion of
that residence to Plaintiff. Defs.' Aff. ¶ 1-4, ECF
reviewing the Motion and Affidavit, the Court moved sua
sponte pursuant to Rule 12(d) of the Federal Rules of
Civil Procedure to convert the Defendants' Motion to a
Motion for Summary Judgement. ECF No. 12. The Court granted
leave for the parties to file briefs on the converted motion
for summary judgement. Neither party responded.
Fed.R.Civ.P. 12(d) Conversion
motion to dismiss pursuant to Rule 12(b)(6) or 12(c) may be
converted to a Rule 56 motion for summary judgement by the
court if, "matters outside the pleadings are presented
to and not excluded by the court." Fed.R.Civ.P. 12(d).
In the United States Court of Appeals for the Fourth Circuit,
conversion of a Rule 12(b)(6) motion is triggered when
matters outside the pleading under attack are presented and
"considered" by the court. Kipps v. Ewell,
538 F.2d 564, 566 (4th Cir. 1976). Consideration simply means
that the court reviewed the matters to trigger conversion, as
opposed to affirmatively relying on or disregarding the
matters. Id.; North Star Intern, v. Arizona Corp.
Com'n, 720 F.2d 578, 582 (9th Cir. 1983) (holding
that the district court relied on documents filed earlier
with the court to convert plaintiffs motion to dismiss);
Barrett v. United Hospital, 376 F.Supp. 791, 795
(S.D.N.Y.1974) (holding that the court has the option to
disregard extrinsic material and rule on the pleadings for a
motion to dismiss), affd without opinion, 506 F.2d
1395 (2d Cir. 1974). "Matters outside the
pleadings" include, but are not limited to, affidavits
and admissions on file. Fed.R.Civ.P. 56(c). In order to
properly convert a motion to dismiss to a motion for summary
judgement, the extrinsic material, such as affidavits, must
provide the court with an ability to make a complete and
rational determination of the case. See, e.g., Mollis v.
U.S. Dept. of Army, 856 F.2d 1541, 1545 (D.C. Cir. 1988)
(ruling that the district court had "ample basis"
to convert the motion to dismiss to a motion for summary
judgement based on extrinsic evidence).
the Court determines that conversion is appropriate,
"all parties must be given a reasonable opportunity to
present all the material that is pertinent to the
motion" for summary judgment. Fed.R.Civ.P. 12(d).
Sufficiency of notice depends on the facts of the case, but
generally the parties must be given an opportunity to present
evidence and pursue reasonable discovery before the motion is
ruled upon. Jeffers v. Thompson, 264 F.Supp.2d 314,
322 (D. Md. 2003) (citing Gay v. Wall, 761 F.2d 175,
177 (4th Cir.1985)). The notice need not be in written form,
but must be "reasonably calculated to inform the
nonmoving party of the conversion" and provide adequate
opportunity to produce a triable issue of fact. Davis v.
Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979). If the
nonmoving party files extrinsic material that presents a
triable issue of fact and the court fails to consider the
material in granting the motion for summary judgement, the
court could have committed a reversible error. Freeman v.
Marine Midland Bank-New York, 494 F.2d 1334, 1338-339
(2d Cir. 1974) (holding that the district court erred in
dismissing the complaint after plaintiff filed an affidavit
creating a triable issue of fact).
Fed.R.Civ.P. 56 Motion for Summary Judgment
converted, a motion pursuant to Rule 56 of the Federal Rules
of Civil Procedure shall be granted if, "[The]movant
shows that there is no genuine dispute as to any
material." Fed.R.Civ.P. 56(a); see also McKinney v.
M of Trustees of Md Cmty. Coll., 955 F.2d 924, 928 (4th
Cir. 1992) ("[S]ummary judgments should be granted in
those cases where it is perfectly clear that no issue of fact
is involved and inquiry into the fact is not necessary to
clarify the application of the law.") (citations
Rule 56, the court does not make a presumption that
allegations of the complaint embrace facts that are necessary
to support the claim, but rather requires that the opposing
party "come forward with specific facts showing that
there is a genuine issue for trial." Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S.
574, 586-87 (internal quotations omitted). Summary judgement
will be granted "against a party who fails to make a
showing sufficient to establish the existence of an essential
element to that party's case, and on which that party
will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). The
nonmoving party may not rely on mere allegations or denials
set forth in the initial pleadings, but must respond, by
affidavit or otherwise, with specific facts. Additionally,
"[T]he evidence must create fair doubt; wholly
speculative assertions will not suffice." Ross v.
Commc'ns Satellite Corp., 759 F.2d 355, 364 (4th
Cir. 1985); see also Ash v. United Parcel Serv.,
Inc., 800 F.2d 409, 411-12 (4th Cir. 1986) (noting that
the nonmoving party must offer more than unsupported
speculation to withstand a motion for summary judgement). If
the nonmoving party does not respond, summary judgement ought
to be entered against that party. Fed.R.Civ.P. 56(e)(2).