UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 00-20800
Summary Calendar
___________________
CHARLES ROGERS, ET UX, Individually, and
as Next Friends of James Rogers,
a minor; JAMES ROGERS,
Plaintiffs-Appellants,
versus
HYATT INTERNATIONAL, INC.; HYATT CORPORATION;
MONTGOMERY KONE, INC.; HYATT INTERNATIONAL-
LATIN AMERICA, LTD.,
Defendants-Appellees.
____________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-99-CV-4215)
____________________________________________________________
March 6, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellants contest the FED. R. CIV. P. 12(b)(6) dismissal of
their claims against Hyatt International, Inc. We AFFIRM.
I.
Appellants originally filed this action in Texas state court
against Hyatt International, Inc., Hyatt Corporation, and
Montgomery Kone, Inc., alleging that James Rogers, while a guest at
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
the Hyatt Regency Guatemala, was injured in an elevator. They
presented claims for negligence, gross negligence, and violation of
the Texas Deceptive Trade Practices Act.
After this action was removed to federal court, Hyatt
International filed a “Motion to Dismiss for Lack of Personal
Jurisdiction, Motion to Dismiss for Forum Non Conveniens, and
Original Answer”. (Emphasis added.) One defense raised in its
answer asserted, pursuant to Rule 12(b)(6), that Appellants’ second
amended complaint failed to state a claim upon which relief could
be granted.
Appellants filed a third amended complaint, adding Hyatt
International-Latin America, Ltd. (Hyatt-Latin America) as a
defendant. This followed a scheduling conference at which Hyatt
International advised Appellants that Hyatt-Latin America is the
proper defendant. The third amended complaint claimed: James
Rogers, while a registered guest at the Hyatt Regency Guatemala,
was injured when an elevator in which he was a passenger dropped
unexpectedly after the doors opened; “[t]he actions of Defendants
and their subsequent failure to remedy violate the ... Texas
Deceptive Trade Practices Act”; “[t]he actions of Defendants were
negligent and proximately caused Plaintiffs to suffer personal
injuries”; and “[t]he actions of Defendants were grossly
negligent”.
2
Thereafter, Appellants responded to Hyatt International’s
motions to dismiss for lack of personal jurisdiction and for forum
non conveniens; the response, however, did not address Hyatt
International’s Rule 12(b)(6) — failure to state a claim — defense
in its answer.
In answer to the third amended complaint, Hyatt International
again raised a Rule 12(b)(6) defense. Thereafter, Hyatt
International filed a reply to Appellants’ response in opposition
to its motions to dismiss, attaching the deposition of its
corporate representative, describing the corporate structure of
Hyatt International and Hyatt-Latin America.
Less than one week later, the district court dismissed
Appellants’ claims: against Hyatt-Latin America, based on forum
non conveniens; and against Hyatt International and Hyatt
Corporation, for failure to state a claim upon which relief could
be granted. Appellants’ claims against Montgomery Kone were
dismissed without prejudice. The district court concluded that the
allegations in the third amended complaint failed to support a
claim that would entitle Appellants to relief against Hyatt
International, because the alleged facts demonstrated that Rogers’
injuries and all events leading up to those injuries, including the
servicing of the elevator, occurred in Guatemala, and that Hyatt-
Latin America was a wholly-owned, independent corporation, having
no connection with Hyatt International.
3
Pursuant to Rule 59, Appellants moved for relief from the
judgment, contending that the dismissal of Hyatt International was
improper because Hyatt-Latin America “appear[ed] to be” the alter
ego of Hyatt International. In support, Appellants attached the
deposition of Hyatt International’s corporate representative
(previously submitted, as noted, to the district court with Hyatt
International’s reply in support of its motions to dismiss) and a
letter from Hyatt International’s president to its insurer, asking
it to respond on behalf of Hyatt International and Hyatt-Latin
America to Appellants’ pre-suit demand. Appellants’ motion was
denied.
II.
Appellants challenge only the dismissal of Hyatt
International, contending: their complaint stated valid claims;
and the evidence submitted in support of their Rule 59 motion
raises factual issues regarding Hyatt International’s involvement
in the management and operation of Hyatt-Latin America (as noted,
dismissed on forum non conveniens grounds) and the Hyatt Regency
Guatemala.
“We review the district court’s conclusion that the plaintiff
failed to state a claim on which relief may be granted de novo”.
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). Dismissal
is proper “when it is clear that the plaintiff can prove no set of
4
facts in support of his claim that would entitle him to relief”.
Id. (emphasis added).
Of course, if “matters outside the pleading are presented to
and not excluded by the court” in support of a Rule 12(b)(6)
motion, it “shall be treated as one for summary judgment”. FED. R.
CIV. P. 12(b). “[W]e review the grant of such a motion just as we
would any other grant of summary judgment — that is, we review the
grant of summary judgment de novo and apply the same legal
standards as the district court”. Songbyrd, Inc. v. Bearsville
Records, Inc., 104 F.3d 773, 776 (5th Cir. 1997). Summary judgment
is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law”. FED. R. CIV. P. 56(c).
It is not clear from the district court’s opinion whether, in
dismissing Hyatt International, it considered the deposition of its
corporate representative. Cf. Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) (noting approvingly
that other circuits have considered documents attached to motions
to dismiss as “part of the pleadings if they are referred to in the
plaintiff’s complaint and are central to her claim” (emphasis
added; internal quotation marks and citation omitted). The
district court’s opinion cites the standards for considering a Rule
5
12(b)(6) motion and then states: “[a]fter examining pleadings, the
Court is of the opinion that Hyatt International and Hyatt
Corporation are not true parties to the instant suit”. It also
states, however: “Hyatt Latin America is a wholly-owned,
independent corporation having no connection with Hyatt
International or Hyatt Corporation”. (Emphasis added.) The latter
statement is not supported by any allegation in the third amended
complaint, which contains no factual allegations regarding
ownership or management of the Hyatt Regency Guatemala, or control
over the elevator in issue.
In any event, we can affirm the judgment on any ground
supported by the record. E.g., McGruder v. Will, 204 F.3d 220, 222
(5th Cir. 2000). Appellants do not maintain they either received
inadequate notice that the district court would consider matters
outside the pleadings or were denied an opportunity to present
evidence in opposition. See FED. R. CIV. P. 12(b) (when motion to
dismiss treated as one for summary judgment because matters outside
pleading are presented to, and not excluded by, the court, “all
parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56”). Indeed,
Appellants relied in district court on the deposition of Hyatt
International’s corporate representative, which they submitted in
support of their Rule 59 motion, in support of their contention
6
that dismissal was improper because Hyatt-Latin America is the
alter ego of Hyatt International.
The district court did not err by dismissing Appellants’
claims against Hyatt International, because Appellants did not
allege, and there is no evidence, that Hyatt International owned,
managed, operated, or controlled the management or operation of the
Hyatt Regency Guatemala. Appellants’ reliance on the letter from
Hyatt International to its insurer, asking it to respond on behalf
of Hyatt International and Hyatt-Latin America to Appellants’ pre-
suit demand, is not an admission that Hyatt International is a
proper party to this action. And, the deposition of Hyatt
International’s corporate representative does not support
Appellants’ assertion that Hyatt-Latin America is the alter ego of
Hyatt International. She testified: Hyatt International is a
holding company, headquartered in Chicago; it holds stock in other
companies which manage hotels outside the United States, Canada,
and the Carribean; it owns 100% of the stock of Hyatt-Latin
America, which was incorporated in the Cayman Islands; it did not
develop the Hyatt Regency Guatemala; Hyatt-Latin America was hired
by the owner, a Guatemalan company, to manage the hotel; Hyatt
International drafted the management agreement between the
Guatemalan hotel owner and Hyatt-Latin America; one of Hyatt
International’s directors serves on the board of directors for
Hyatt Latin-America; three of the six directors of Hyatt-Latin
7
America are officers of Hyatt International; and Hyatt
International board meetings are held in Chicago, while Hyatt-Latin
America’s are held in the Cayman Islands.
In sum, Appellants neither pleaded, nor does the evidence
support, any duty owed to Appellants by Hyatt International.
Accordingly, the district court did not err by dismissing Hyatt
International.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
8