Washington v. Allstate Ins. Co.

• Decision Date: 29 May 1990
• Docket Number: No. 89-3682,89-3682
• Citation: 901 F.2d 1281
• Parties: John E. WASHINGTON, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1281

901 F.2d 1281

16 Fed.R.Serv.3d 1408

John E. WASHINGTON, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.

No. 89-3682

Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 29, 1990.

Rehearing Denied July 10, 1990.

David C. Frazier, Gordon, Myers & Frazier, Pascagoula, Miss., for plaintiff-appellant.

Michael K. Fitzpatrick, F. Otway Denny, III, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS, SMITH, and DUHE, Circuit Judges.

DUHE, Circuit Judge:

Washington appeals the trial court's dismissal of his breach of contract action against his homeowner's insurer Allstate. We affirm.

Washington alleged that Allstate failed to pay for property damage to his home covered under an insurance policy issued to him by Allstate; Washington attached the Allstate policy to his complaint. Allstate answered claiming prescription and moved to dismiss on the basis of prescription. Allstate was granted until 20 days after the date of the hearing on its motion to dismiss to produce documents and respond to requests for admissions. Washington did not object to the extension.

Thereafter, Washington responded to Allstate's motion, arguing: (1) that the action had not prescribed on its face; (2) that Allstate had acknowledged the debt by having a repair estimate made, thereby interrupting prescription; and (3) that Allstate had created a genuine issue of material fact by attaching to its motion a copy of the standard fire policy language set forth in La.Rev.Stat.Ann. 22:691(F). Louisiana law requires every fire policy issued in the state to conform to the language in 22:691(F). Washington contended that the standard fire policy language differed from that in Allstate's policy and that the standard policy language had never been attached to the policy in dispute. Washington further asserted that he was entitled to complete discovery before final determination of the motion. The district court then took Allstate's motion under advisement without oral argument or hearing and suspended discovery until he ruled on the motion.

In granting Allstate's motion to dismiss, the district court accepted Allstate's argument that Washington's claim had prescribed and rejected Washington's claim that Allstate interrupted prescription by hiring a contractor to assess the plaintiff's damages. Though neither the parties nor the court designated under which rule dismissal was sought, Fed.R.Civ.Pro. 12(b)(6) speaks to the failure to state a claim upon which relief can be granted and encompasses dismissal on the basis of prescription. Triplett v. Heckler, 767 F.2d 210, 212 (5th Cir.1985), cert. denied, 474 U.S. 1104, 106 S.Ct. 889, 88 L.Ed.2d 923 (1986); Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir.1983).

Where matters outside the pleadings are considered by the district court on a motion to dismiss, Rule 12(b) requires the court to treat the motion as one for summary judgment and to dispose of it as required by Rule 56. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972); Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir.1986). Whenever a motion to dismiss is treated as a motion for summary judgment, the nonmovant is entitled to the procedural safeguards of Rule 56. Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 195 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988); Capital Films Corp. v. Charles Fries Prods., Inc., 628 F.2d 387, 391 n. 1 (5th Cir.1980).

When the district court considered La.Rev.Stat.Ann. 22:691(F) and the contractor's estimate, he in fact converted the motion to dismiss into a motion for summary judgment. Where the opposing party has been afforded the opportunity to respond in accordance with Rule 56, an appellate court may review the lower court's decision as one for summary judgment even if the court mislabeled it as a dismissal. Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir.1986); Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 390 n. 9 (5th Cir.1985), cert. denied, --- U.S. ----, 109 S.Ct. 129, 102 L.Ed.2d 102 (1988). Consequently, though the district court applied Rule 12(b)(6), Rule 56 governs the standard of review in this case.

Washington contends that judgment was premature because the trial court allowed no discovery. He objected to this state of affairs in his supplemental response to Allstate's motion to dismiss and in his brief to this court. Thus he argues that the district court erred in failing to allow him a "reasonable opportunity" to respond as required by Rule 12(b) and Rule 56. We disagree.

Rule 56(c) requires that the nonmovant have 10 days within which to respond to a motion for summary judgment. However, "[u]nder Rule 56 it is not necessary that the district court give ten days' notice after it decides to treat a Rule 12(b)(6) motion as one for summary judgment, but rather after the parties receive notice that the court could properly treat such a motion as one for summary judgment because it has accepted for consideration on the motion matters outside the pleadings, the parties must have at least ten days before judgment is rendered in which to submit additional evidence." Clark v. Tarrant County, Texas, 798 F.2d 736, 746 (5th Cir.1986). The proper question, therefore, is whether Washington had ten days' notice after the court accepted for consideration matters outside the pleadings. Isquith, 847 F.2d at 195.

Here Allstate attached a copy of La.R.S. 22:691(F) to its April 20 motion to dismiss. Washington attached a copy of the repair estimate to his response, filed on June 10. A hearing on the motion was set for June 21, but at Washington's request the trial court cancelled the hearing and gave Washington until June 30 to file a supplemental memorandum in opposition to the motion. This order stated that upon receipt of Washington's memorandum, the trial court would decide the motion on the briefs without an oral hearing. At least from the date Washington himself submitted to the court matters outside the pleadings, June 10, Washington was on notice that the trial court could treat the motion to dismiss as a motion for summary judgment. As the Isquith court noted, the notice required is only that the district court could treat the motion as one for summary judgment, not that the court would in fact do so. 847 F.2d at 195. Indeed, Washington addressed the requirements of Rule 56(c) in his opposition to Allstate's motion to dismiss. The Supreme Court has recently observed that "district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The notice provisions of Rule 12(b) and Rule 56 were not violated.

The next question is whether the trial court erred in granting summary judgment because Washington had not engaged in any discovery. Washington did not object to Allstate's April 20 and May 15 motions to stay discovery. Washington expressed dissatisfaction with the lack of discovery only in his July 12 supplemental memorandum opposing the motion. There Washington, referring to Allstate's attachment to its motion of the standard fire policy, stated: "[i]f the Defendant wishes to continue to raise genuine issues as to material facts the Plaintiff is entitled to have an opportunity to complete his discovery before such issues are finally determined."

Rule 56 does not require that any discovery take place before summary judgment can be granted; if a party cannot adequately defend such a motion, Rule 56(f) is his remedy. New America Shipbuilders, Inc. v. United States, 871 F.2d 1077, 1081 (Fed.Cir.1989); Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841, 843-44 (11th Cir.1989); American Nurses Association v. State of Illinois, 783 F.2d 716, 729 (7th Cir.1986); Weir v. Anaconda Co., 773 F.2d 1073, 1081 (10th Cir.1985); United States of America, acting Through the Small Business Association v. Light, 766 F.2d 394, 397 (8th Cir.1985). This court has long recognized that a plaintiff's entitlement to discovery prior to a ruling on a motion for summary judgment is not unlimited, and may be cut off when the record shows that the requested discovery is not likely to produce the facts needed by the plaintiff to withstand a motion for summary judgment. Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017, 1029-30 (5th Cir.1983). See Fisher v. Metropolitan Life Insurance Co., 895 F.2d 1073 (5th Cir.1990) and Netto v. Amtrak, 863 F.2d 1210, 1216 (5th Cir.1989).

Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

The protection afforded by Rule 56(f) is an alternative to a response in opposition to summary judgment under Rule 56(e) and is designed to safeguard against a premature or improvident grant of summary judgment. 10A Wright, Miller, and Kane, Federal Practice and Procedure Sec. 2740 (1983).

To obtain a Rule 56(f) continuance, the nonmovant must present specific facts explaining his inability to make a substantive response as required by Rule 56(e) and by specifically demonstrating "how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." Securities and Exchange Commission v. Spence & Green Chemical Co., 612 F.2d 896, 901 (5th Cir.1980), cert. denied, 449 U.S. 1082, 101 S.Ct. 866, 66 L.Ed.2d 806 (1981) (quo...