Finn v. Gunter, s. 82-5540
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
| Writing for the Court | Before FAY and HENDERSON, Circuit Judges, and TUTTLE; FAY |
| Citation | 722 F.2d 711 |
| Parties | Harry Joseph FINN, d/b/a University Insurance, Plaintiff-Appellant, v. Bill GUNTER, Allan J. Katz, Billy P. Canova, Robert A. Breckinridge, William T. Nunley, Henry E. Smith, Patrick H. Brenner, Jr., Russell W. Todd, Ellis A. Quigley, Robert E. McKenna and Thomas K. Sturgis, etc., Defendants-Appellees. |
| Docket Number | 83-3051,Nos. 82-5540,s. 82-5540 |
| Decision Date | 12 January 1984 |
Page 711
v.
Bill GUNTER, Allan J. Katz, Billy P. Canova, Robert A.
Breckinridge, William T. Nunley, Henry E. Smith, Patrick H.
Brenner, Jr., Russell W. Todd, Ellis A. Quigley, Robert E.
McKenna and Thomas K. Sturgis, etc., Defendants-Appellees.
Eleventh Circuit.
John A. Barley, Tallahassee, Fla., for plaintiff-appellant.
Ken Hoffman, Oertel & Laramore, Tallahassee, Fla., for defendants-appellees.
Appeals from the United States District Court for the Northern District of Florida.
Before FAY and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
Page 712
FAY, Circuit Judge:
Appellant, Harry Joseph Finn d/b/a University Insurance appeals two separate orders by the United States District Court for the Northern District of Florida granting summary judgment. The district court sua sponte converted a Rule 12(b)(6) motion to dismiss into a summary judgment motion and did not give the appellant the 10 day notice required by Rule 56(c) before granting partial summary judgment. The findings made in this order were the basis for the court's final summary judgment order. Since it is well established in this circuit that we strictly enforce the notice requirement of Rule 56(c), Herron v. Beck, 693 F.2d 125 (11th Cir.1982), we reverse both orders and remand for further proceedings consistent with this opinion.
On July 18, 1980, Finn, a licensed insurance agent, filed a complaint in district court against Bill Gunter, the Insurance Commissioner, and the Insurance Department alleging violations of his federal constitutional rights as a result of an investigation by these individuals of his insurance practice. He sought injunctive, declaratory and compensatory relief pursuant to 42 U.S.C. Secs. 1983 and 1985 (1976) and 28 U.S.C. Secs. 2201 and 2202 (1976). He also challenged the constitutionality of Florida's Insurance Code, Fla.Stat. Secs. 626.601, .611, .621, .989 (1982). Finn also requested a temporary restraining order to halt the investigation and the license revocation proceedings. After a hearing, the court denied relief. Since this denial was subsequently upheld by the Fifth Circuit on an interlocutory appeal, Finn was unable to stay the state's revocation proceedings.
On June 1, 1981, Mr. Gunter filed a motion to dismiss and the district court stayed consideration of this motion until the state administrative and judicial processes were completed. When Finn had finally exhausted his state remedies, the district court ruled on the motion to dismiss. The court began its order by stating that it was converting "defendant's motion to dismiss into a motion for partial summary judgment," App.R. at 293, and then granted the summary judgment, even though no actual notice had been given to the parties. The district judge further directed the parties to file cross-motions for summary judgment on the constitutionality of Florida's insurance code so that he then could rule on the remaining claims.
On May 29, 1982, Finn appealed the order granting partial summary judgment. 1 On January 3, 1983, the district court entered final summary judgment for Mr. Gunter on the remaining claims, which had been fully briefed by both parties. Finn appealed this last order on January 6, 1983. 2 Both appeals were consolidated by this court on February 18, 1983.
Rule 12(b) of the Federal Rules of Civil Procedure requires:
If, on a motion ... to dismiss for failure of the pleading to...
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