UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 96-30619
Summary Calendar
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VESSIE L. JACKSON,
Plaintiff-Appellant,
VERSUS
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ET AL.,
Defendant,
UNITED STATES OF AMERICA,
Defendant-Appelllee.
______________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(94-CV-1686)
______________________________________________________
April 17, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff Vessie L. Jackson appeals the dismissal of his suit
against the Department of Housing and Urban Development ("HUD") and
contends that the district court improperly considered inadmissible
materials. We conclude that because Jackson failed to object in a
timely manner, he has waived this argument on appeal. We affirm.
I.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
In 1981, Jackson received preliminary approval from HUD to
build multifamily apartment projects in Louisiana under a Minority
Business Enterprise ("MBE") program. Jackson sought the assistance
of the Fairfield Development Company ("FDC") in filing a Form
92013, an application for firm commitment, in connection with the
project. Instead of filing the form signed by Jackson, Jackson
contends that FDC filed a form signed by its president, Stanton
Dossett, and that HUD negligently processed that form. In doing
so, Jackson maintains, HUD recognized FDC, a nonminority controlled
entity, as owner of the housing projects in violation of HUD
regulations prohibiting nonminority entities from owning a majority
interest in MBEs.1
In September 1994, Jackson filed this complaint against HUD
and alleged, among other things, negligence under the Federal Tort
Claims Act ("FTCA"). To avoid being time-barred by the FTCA's two-
year statute of limitations period, Jackson contends that he did
not discover that HUD recognized FDC as owner of the housing
projects until he received a copy of FDC's Form 92013 in late 1991
or early 1992 as a result of a Freedom of Information Act request.
1
This suit is the latest in a series of legal entanglements
arising out of the business relationship of FDC and Jackson. In
1982, Jackson and FDC entered into a limited partnership to
construct and manage the housing projects. Jackson later granted
FDC a majority interest in the partnership. He then asked HUD to
void this transfer, but HUD declined to do so and stated that such
ownership disputes must be resolved by the parties. In 1983 and
1984, Jackson filed several suits in state court against FDC
seeking to recover ownership of the properties; in May 1984,
Jackson agreed to a settlement of the suits and to the transfer of
his ownership interest in the housing projects for $219,559.09.
2
Thereafter, he filed a complaint with HUD in May 1993 and, later,
this lawsuit in federal court.
HUD moved to dismiss all of Jackson's claims under Fed. R.
Civ. P. 12(b)(1), (2), and (6) and submitted material outside the
pleadings for the court's consideration. Jackson replied to the
motion to dismiss but did not object to the submission of the
outside materials. The district court dismissed all of Jackson's
claims; in doing so, it considered the extra-pleading materials,2
found that Jackson knew HUD recognized FDC as the owner of the
housing projects more than two years before he filed his complaint
with HUD, and concluded that Jackson's negligence claim was time-
barred.
In his motion for reconsideration and on appeal, Jackson
challenges the district court's reliance on the unauthenticated
documents and letters attached to FDC's motion to dismiss, FDC's
motion opposing Jackson's motion to amend, and FDC's renewed motion
to dismiss.3
II.
2
The evidence submitted by HUD in connection with its various
motions consisted of letters exchanged between Jackson's attorney
and HUD in 1983 discussing FDC's ownership of the projects;
documents related to lawsuits that Jackson filed against FDC in
1984 regarding the contested ownership and the eventual settlement
of those suits; documents related to Jackson's claims against HUD
employees filed with the EEOC and Department of Justice in 1983,
1984, and 1994; and a letter related to Jackson's request for an
investigation of HUD by the Office of Inspector General in 1987.
3
Jackson does not challenge the district court's dismissal of
his claims against HUD alleging fraud, intentional infliction of
emotional distress, breach of contract, and violations of various
federal statutes.
3
To establish federal jurisdiction in a suit under the FTCA, a
plaintiff must demonstrate compliance with the statute of
limitations. Johnston v. United States, 85 F.3d 217, 218 n.2 (5th
Cir. 1996). Under 28 U.S.C. § 2401(b), a court has jurisdiction
over a claim under the FTCA as long as "it is presented in writing
to the appropriate Federal agency within two years after such claim
accrues."
Here, HUD moved to dismiss the FTCA claim for lack of subject-
matter jurisdiction under Rule 12(b)(1) on statute of limitations
grounds and argued that the jurisdictional facts underlying
Jackson's complaint were incorrect. Specifically, the agency
contended that Jackson had notice that HUD recognized FDC as owner
of the housing projects more than two years before Jackson filed a
complaint with HUD. In resolving a factual 12(b)(1) motion, this
court has recognized that "[b]ecause at issue . . . is the trial
court's jurisdiction--its very power to hear the case--there is
substantial authority that the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power to
hear the case. . . . [T]he existence of disputed material facts
will not preclude the trial court from evaluating for itself the
merits of jurisdictional claims." Williamson v. Tucker, 645 F.2d
404, 412-13 (5th Cir.) (quoting Mortensen v. First Fed. Sav. and
Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977)), cert. denied, 454
U.S. 897 (1981). Thus, a district court is entitled to review
outside materials when resolving a 12(b)(1) motion for lack of
subject-matter jurisdiction. Id. at 413.
4
Jackson argues that he did not object to the court's
consideration of the allegedly inadmissible materials because he
had no notice that the court would consider them. He correctly
contends that, in a motion to dismiss for failure to state a claim
under Rule 12(b)(6), materials outside the pleadings may not be
considered unless the motion is converted to a motion for summary
judgment. See Fed. R. Civ. Pro. 12(b) (requiring court to treat
motion to dismiss for failure to state a claim as motion for
summary judgment where outside material is considered); Washington
v. Allstate Ins. Co., 901 F.2d 1281, 1283-84 (5th Cir. 1990)
(noting that nonmovant in converted summary judgment case is
entitled to Rule 56's procedural safeguards). Here, however,
satisfaction of the FTCA's limitations provision is a prerequisite
for federal jurisdiction; thus, HUD's motion to dismiss the FTCA
claim is properly characterized as a 12(b)(1) motion to dismiss for
lack of subject-matter jurisdiction rather than a 12(b)(6) motion
to dismiss for failure to state a claim. As noted above, it is
well-settled that a court may consider outside materials in
resolving a motion to dismiss for lack of subject-matter
jurisdiction. Williamson, 645 F.2d at 413-14; see also Moran v.
Kingdom of Saudi Arabia, 27 F.3d 169, 173 (5th Cir. 1994); Eaglin
v. United States, 794 F.2d 981, 984 n.3 (5th Cir. 1986). Given
this principle, Jackson was on notice that the court would consider
extra-pleading materials in deciding HUD's motion to dismiss.
Therefore, assuming without deciding that the extra-pleading
materials were inadmissible, Jackson has waived his objection
5
because he failed to object to the court's consideration of the
material in his motion opposing HUD's motion to dismiss or in his
reply to HUD's response. While materials outside the pleadings
must conform to the rules and standards of admissiblity that govern
at trial, cf. Christophersen v. Allied-Signal Corp., 939 F.2d 1106,
1109 n.2 (5th Cir. 1991) (discussing motions for summary judgment),
cert. denied, 503 U.S. 912 (1992), inadmissible material considered
by a district court without challenge may support a dismissal.
See, e.g., Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 n.3 (5th Cir. 1992); McCloud River R.R. Co. v. Sabine
River Forest Prods., Inc., 735 F.2d 879, 882 (5th Cir. 1984);
Resolution Trust Corp. v. Gaudet, 907 F. Supp. 212, 217 n.22 (E.D.
La. 1995).
III.
The district court characterized its treatment of the
negligence claim as a grant of summary judgment and, accordingly,
a dismissal with prejudice. Because Jackson failed to satisfy the
FTCA's jurisdictional prerequisites, the district court lacked the
jurisdiction to render a decision on the merits; the case is
therefore properly dismissed without prejudice. See Stanley v.
Central Intelligence Agency, 639 F.2d 1146, 1158 (5th Cir. 1981)
("Since appellant's allegations should not have survived the
12(b)(1) jurisdictional attack . . ., the court had no jurisdiction
to dispose of the case on the merits by reaching the 12(b)(6)
motion of dismissal for failure to state a claim.").
IV.
6
For these reasons, the district court's dismissal of Jackson's
FTCA claim is modified to a dismissal without prejudice and, as
modified, is AFFIRMED.
AFFIRMED.
7