103 F.3d 119 (4th Cir. 1996), 96-1746, Norfolk Federation of Business Districts v. City of Norfolk

Docket Nº:96-1746.
Citation:103 F.3d 119
Party Name:The NORFOLK FEDERATION OF BUSINESS DISTRICTS, Plaintiff-Appellant, v. CITY OF NORFOLK, a municipal corporation; Norfolk Redevelopment and Housing Authority, Defendants-Appellees, U.S. Department of Housing & Urban Development, in its official capacity as agency of the Government of the United States; Henry G. Cisneros, in his official capacity as t
Case Date:November 20, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 119

103 F.3d 119 (4th Cir. 1996)

The NORFOLK FEDERATION OF BUSINESS DISTRICTS, Plaintiff-Appellant,

v.

CITY OF NORFOLK, a municipal corporation; Norfolk Redevelopment and Housing Authority, Defendants-Appellees,

U.S. Department of Housing & Urban Development, in its official capacity as agency of the Government of the United States; Henry G. Cisneros, in his official capacity as the Secretary of the Department of Housing and Urban Development, Defendants.

No. 96-1746.

United States Court of Appeals, Fourth Circuit

November 20, 1996

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued: Sept. 25, 1996.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry C. Morgan, Jr., District Judge. (CA-96-308-2)

ARGUED: Andrew Michael Sacks, SACKS & SACKS, Norfolk, Virginia, for Appellant. William Gray Broaddus, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia; Francis Nelson Crenshaw, CRENSHAW, WARE & MARTIN, P.L.C., Norfolk, Virginia, for Appellees. ON BRIEF: Stanley E. Sacks, SACKS & SACKS, Norfolk, Virginia, for Appellant. Philip R. Trapani, City Attorney, Bernard A. Pishko, Senior Deputy City Attorney, CITY OF NORFOLK, Norfolk, Virginia; E. Duncan Getchell, Jr., Bradford A. King, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for Appellee City of Norfolk; James L. Chapman, IV, David H. Sump, CRENSHAW, WARE & MARTIN, P.L.C., Norfolk, Virginia, for Appellee Housing Authority.

E.D.Va.

AFFIRMED.

Before MURNAGHAN and HAMILTON, Circuit Judges, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

PER CURIAM:

The district court dismissed plaintiff's Counts I, II, III, V, VI, VII, VIII, and IX with prejudice and dismissed Count IV without prejudice. The court only considered the motion to dismiss as it related to the defendants served with process; the City of Norfolk and the Norfolk Redevelopment and Housing Authority (NRHA). NFBD agreed to dismiss HUD and Secretary Cisneros after the district court's judgment.

We review de novo the dismissal of the federal claims properly before the Court pursuant to Rule 12(b)(6), Brooks v. City of Winston Salem, 85 F.3d 178, 181 (4th Cir.1996), and conclude that the trial judge was correct in his rulings and affirm.

Appellant's contention that the lower court erred in not converting the Appellees' 12(b)(6) motion to a motion for summary judgment under Rule 56 Fed.R.Civ.P is not well taken.

The record reflects that the complaint was accompanied by a number of documents which made reference to Norfolk redevelopment plan, an admittedly public document. The lower court's consideration of that document was appropriate and did not warrant converting the Rule 12(b)(6) motion to one for summary judgment. Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir.1995), cert. granted and judgment vacated on other grounds, 116 S.Ct. 1821 (1996). In short, a court may consider matters of public record, items appearing in the record of the case, as well as exhibits attached to the complaint. See generally Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure §...

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