Daniel P. Galiotti, Donald P. Galiotti v. Michael Green

475 F. App'x 403

• Court: Court of Appeals for the Second Circuit
• Decided: August 29, 2012
• Docket: 11-3375-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

Plaintiffs-Appellants Daniel P. Galiotti and Donald P. Galiotti (collectively the “plaintiffs” or the “Galiottis”) appeal from a July 21, 2011 judgment of the United States District Court for the Western District of New York (Telesca, /.), entered in accordance with a decision and order dated July 19, 2011, granting defendants’ motion for summary judgment and dismissing the plaintiffs’ complaint. On behalf of the Monroe County District Attorney’s Office, Defendants-Appellees Michael Green and Stefanie L. Guido (the “defendants”) prosecuted the Galiottis for automobile insurance fraud. Following a bench trial, a state court judge dismissed each count of the indictment. Thereafter, plaintiffs filed a complaint alleging a series of claims under 42 U.S.C. § 1983 against the defendants. We assume the parties’ familiarity with the underlying facts and procedural history of this case.

The Galiottis argue that the district court erred in treating a motion filed at the close of discovery and titled a “Motion for Summary Judgment Pursuant to Rule 12(b)(6)” as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. We disagree. When defendants filed their inartfully titled motion, the period for filing a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) had long since ended, as had discovery. Additionally, in its text, the defendants’ brief expressly requested summary judgment and cited the relevant legal standard. Defendants also appended to the brief extrinsic evidence in support of their motion. Finally, in more than one request to the district court for an extension of time to respond, the plaintiffs referred to the defendants’ motion as one for summary judgment, thereby indicating that they were aware of the nature of the motion and the potential consequences of failing to respond to it with evidence outside the pleadings.

Even if we were to treat the defendants’ motion as initially requesting relief pursuant to Rule 12(b)(6), the district court did not err in converting it to a motion for summary judgment under Rule 56. Federal Rule of Civil Procedure 12(d) provides that:

[i]f, 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.

Id. “Accordingly, a district court acts properly in converting a motion for judgment on the pleadings into a motion for summary judgment when the motion presents matters outside the pleadings, but the rule requires that the court give ‘sufficient notice to an opposing party and an opportunity for that party to respond.’ ” Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir.2009) (quoting Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir.1995)). Formal notice, however, is “[o]rdi-narily ... not required where a party ‘should reasonably have recognized the possibility that the motion might be converted into one for summary judgment [and] was [neither] taken by surprise [nor] deprived of a reasonable opportunity to meet facts outside the pleadings.’” Id. (quoting Villante v. Dep’t of Corr., 786 F.2d 516, 521 (2d Cir.1986)). “Even where only the party moving to dismiss has submitted extrinsic material such as depositions or affidavits, the opposing party may be deemed to have had adequate notice that the motion to dismiss would be converted.” Sahu v. Union Carbide Corp., 548 F.3d 59, 67 (2d Cir.2008) (internal quotation marks omitted).

Plaintiffs had more than adequate notice that the defendants’ motion could be treated as one for summary judgment. Additionally, plaintiffs were granted numerous extensions of time to file their opposition brief. Instead of using this time to prepare a substantive response to the defendants’ motion, plaintiffs’ opposition brief requested a further opportunity to respond. The district court did not err by denying this final request.

We have considered the Galiottis’ remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.