*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this opinion should not be published and is not precedent except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.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30815

ROBERT SALTZ,

Plaintiff-Appellant,

VERSUS

HAROLD O. WHITNEY, individually and as shareholders, on behalf of

Harold O. Whitney, Inc. on behalf of Harold O. Whitney Ltd.; JEAN

WHITNEY, individually and as shareholder on behalf of Harold O.

Whitney, Inc. on behalf of Harold O. Whitney Ltd.; HAROLD O.

WHITNEY, INC.; HAROLD O. WHITNEY, LTD.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

(97-CV-653)

April 12, 1999

Before EMILIO M. GARZA, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

Robert Saltz appeals the summary judgment entered for

defendants in a fraud action brought pursuant to federal diversity

jurisdiction. Having reviewed the district court's grant of

summary judgment de novo, see Gutierrez v. City of San Antonio, 139

F.3d 441, 444 (5th Cir. 1998), we affirm.
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Saltz contends that the district court erred in converting

defendants' motion, denominated motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6), to a motion for summary

judgment without providing Saltz with notice and opportunity to

submit additional summary judgment evidence. Because Saltz himself

submitted extensive materials outside the pleadings in his

opposition to defendants' motion to dismiss, he was on notice that

the district court could treat the motion as one for summary

judgment. Therefore the notice provisions of FED. R. CIV. P. 12(b)

& 56 were not violated. See Washington v. Allstate Ins. Co., 901

F.2d 1281, 1284 (5th Cir. 1990). 

Saltz next argues that denials of defendants' previous motions

to dismiss are “law of the case” and preclude the grant of summary

judgment. The summary judgment at issue in this appeal addresses

only the issue expressly not resolved by earlier rulings. See

Memorandum Ruling, August 14, 1997, p.7. This ground of error is

wholly without merit. 

Finally, Saltz contends that the district court erred in

holding that the judgment previously entered by a Belize court in

a related proceeding is res judicata in the present case. Saltz

relies on the exception to res judicata, recognized by Louisiana,

for judgments obtained by extrinsic fraud on the rendering court.

See State v. Fontenot, 587 So.2d 771, 775 (La.App.2d Cir. 1991).

Saltz alleges that the defendants knew that the contract at issue

was voidable under Belize law, and that defendants “hoodwinked”

Saltz into entering the contract knowing they could get out of it
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if the business did not perform as anticipated. Saltz's

allegations of fraud do not amount to extrinsic fraud. See

Anderson v. Collins, 648 So.2d 1371, 1381 (La.App. 2d Cir.

1995)(“Extrinsic fraud is such fraud as would prevent . . . an

adversary trial on the issue, while intrinsic fraud is such fraud

as would simply amount to an affirmative defense of the original

cause of action.”) Therefore, the district court's determination

that the Belize judgment was res judicata in the instant case was

correct.

Based on the foregoing, we affirm the summary judgment entered

by the district court.

AFFIRMED.