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this opinion should not be published and is not precedent except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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-20416

_____________________

MICHAEL WILLIAM MADDEN, Individually and as Next

Friend of John Michael Madden, A Minor,

Plaintiff-Appellant,

v.

NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN;

ET AL,

Defendants,

NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN;

ELIZABETH F YORE,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-3683)

_________________________________________________________________

May 25, 1999

Before KING, Chief Judge, REAVLEY and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Michael William Madden, suing

individually and as next friend of his minor son John Michael

Madden, brought this negligence action against defendantsappellees the National Center for Missing and Exploited Children

and Elizabeth F. Yore, director of its international division. 
2

Madden now appeals the district court’s dismissal, pursuant to

Federal Rule of Civil Procedure 12(b)(6), of his claim. We

construe the district court’s order as granting summary judgment

and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In April 1988, plaintiff-appellant Michael William Madden

and Kathryn Banks, both United States citizens, were divorced in

the state of Quintana Roo in the Republic of Mexico. A custody

decree awarded Banks, then a resident of New Braunfels, Texas,

custody of the couple’s minor son, John Michael Madden

(“Johnny”), during the school year. In October 1988, Johnny took

up residence with his father in Cancun, Quintana Roo, Mexico. 

The parties disagree as to how he came to live with Madden. 

Banks claims that Madden took Johnny from her home in Comal

County, Texas, and failed to return him to her; Madden alleges

that Banks told him that she was moving to Argentina and

voluntarily left Johnny with him. In February 1989, Madden filed

a motion for modification of custody with the court of continuing

jurisdiction in Quintana Roo, which resulted in his obtaining

sole custody of Johnny in January 1990. Madden alleges that

Banks’s attorneys appeared before the Mexican court and that she

was made aware of the modification. Banks contends that she was

never served with Madden’s motion for modification, did not

receive notice of the modification hearing, and did not appear at

the hearing. In addition, Banks claims that from 1989 to 1996,

she made repeated unsuccessful inquiries as to her son’s
 

1 The Missing Children Assistance Act of 1984, 42 U.S.C.

§§ 5771-5778, required the Administrator of the Office of

Juvenile Justice and Delinquency Prevention to “establish and

operate a national 24-hour toll-free telephone line by which

individuals may report information regarding the location of any

missing child . . . and request information pertaining to

procedures necessary to reunite such child with such child’s

legal custodian,” id. § 5773(b)(1)(A), “provide for the

furnishing of information derived from the national toll-free

telephone line . . . to appropriate entities,” id. § 5773(a)(3),

and “establish and operate a national resource center and

clearinghouse,” id. § 5773(b)(2), that would, among other things,

“coordinate public and private programs which locate, recover, or

reunite missing children with their legal custodians,” id.

§ 5773(b)(2)(B), and “provide technical assistance and training

to law enforcement agencies,” id. § 5773(b)(2)(D). In addition,

the National Child Search Assistance Act of 1990 requires state

law enforcement agencies to “maintain close liaison with the

National Center for Missing and Exploited Children for the

exchange of information and technical assistance in the missing

children cases.” 42 U.S.C. § 5780(3)(C).

3

whereabouts. Madden disputes this, maintaining that although he

and Johnny remained at their residence in Cancun, Banks made no

attempt to locate or visit Johnny, although she did send six

letters or postcards.

In early 1996, Banks and Madden communicated, and Madden

agreed to meet Banks in Washington, D.C. so that Banks could see

Johnny. Banks then contacted United States Senator Joseph Biden

seeking assistance in regaining possession of Johnny. Senator

Biden referred Banks to the National Center for Missing and

Exploited Children (“Center” or “NCMEC”), a congressionallycreated clearinghouse for information regarding missing children

and source of technical assistance for law enforcement and

certain public and private agencies.1 

The parties dispute what actions the Center took on Banks’s

behalf. According to the Center, it advised Banks (1) about
4

applicable laws governing missing children; (2) to translate and

file the April 1988 custody order in Delaware, the state of her

residence; (3) to contact law enforcement authorities to request

that an arrest warrant be issued for Madden; and (4) to request

that the warrant be reported to the National Crime Information

Center (NCIC). The Center also claims that it told Banks that

because Mexico was not yet a signatory to the Hague Convention at

the time Johnny was allegedly taken from her, she should seek

help through the Texas criminal justice system. Banks provided

the Center with a copy of the 1988 Mexican child custody order

and informed it that she had contacted local law enforcement

authorities in Comal County, Texas. The Center then called these

authorities several times to check on the status of Madden’s

arrest warrant. Madden characterizes the Center’s actions

somewhat differently: He claims that it “persuaded and

convinced” Comal County authorities to “file the felony charge of

intentional interference with child custody.” This “active

advocacy” of Banks’s custodial rights, Madden alleges, went

beyond the Center’s congressionally-mandated duties.

In the spring of 1996, an Interpol special agent informed

the Center that Interpol had been in contact with the local Texas

district attorney and law enforcement personnel in an effort to

secure a warrant for Madden’s arrest. A warrant was in fact

issued on April 30, 1996. Madden was arrested in May 1996 as he

attempted to enter the United States, charged with interference
5

with child custody, and jailed in Houston, Texas. Johnny was

returned to Banks.

After his arrest, Madden initiated a proceeding in Delaware

state court seeking Johnny’s return. He presented a copy of the

1990 custody modification order and the testimony of the attorney

who represented him in the 1990 modification proceedings. After

determining that it had no jurisdiction to disturb a foreign

court order in light of evidence that Banks appeared to have

notice of the modification proceeding, the Delaware court

declined to review the custody modification order and directed

that Johnny be returned to Madden. Madden and Johnny immediately

left the United States and, to date, Johnny remains with his

father in Mexico.

In October 1996, Madden filed suit against the Center and

Banks in Texas state court on a number of causes of action,

including common law negligence. The Center and Banks removed

the case to the United States District Court for the Southern

District of Texas on the basis of diversity of citizenship and

filed motions to dismiss for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6). Madden failed to

respond, and the district court entered an order granting the

motions to dismiss. Subsequently, Madden filed a motion for

leave to file a response to the motions to dismiss, a motion for

reconsideration of the dismissal order, and motions for leave to

file first and second amended complaints. The district court

granted leave to file a response to the motion to dismiss,
 

2 The district court also implicitly granted the motion for

leave to file a first amended complaint insofar as it sought to

drop all claims against the Center except the negligence claim. 

The district court stated in its order that because Madden

apparently wished to pursue only the negligence cause of action,

it would address only that claim against the Center. The court

explicitly denied Madden’s request to add Elizabeth F. Yore,

director of the Center’s international division, as a defendant. 

It is unclear why Yore is listed as a defendant-appellee in the

style of this case.

6

granted leave to file a first amended complaint insofar as Madden

sought to dismiss certain claims against Banks,2 and denied leave

to file a second amended complaint. The motion for

reconsideration was granted in part and denied in part; the

district court reinstated certain claims against Banks but

ordered that the negligence claim against the Center remain

dismissed because the Center had no duty to investigate foreign

orders before becoming involved in actions relating to the

custody of a child. Madden appealed.

II. STANDARD OF REVIEW

Where matters outside the pleadings are “presented to and

not excluded by the court” and the district court grants a motion

styled as a motion to dismiss, we treat that order as an order

granting summary judgment. FED. R. CIV. P. 12(b); see Baker v.

Putnal, 75 F.3d 190, 197 (5th Cir. 1996); Baton Rouge Bldg. &

Constr. Trades Council v. Jacobs Constructors, Inc., 804 F.2d

879, 881 (5th Cir. 1986) (per curiam). In this case, the Center

included matters outside the pleadings in its motion to dismiss,

and the district court considered the material in its order
 

3 For example, the Center attached to its motion to dismiss

Yore’s affidavit, which asserts that “[s]tatistics maintained by

the Center reflect that since 1984 we have received over one

million calls with requests for assistance . . . .” The district

court’s order stated: “The evidence indicates that since its

creation, the NCMEC has received millions of calls with requests

for assistance in finding children. Should this Court, or any

other court, impose a legal duty on the NCMEC to conduct

investigations into foreign court proceedings and to take action

‘through diplomatic channels’ as advocated by Madden, prior to

acting on incoming calls for assistance, the NCMEC would lose its

ability to effectively perform its designated functions.” 

7

dismissing Madden’s claim.3 In so doing, the court converted the

motion to dismiss into a motion for summary judgment under

Federal Rule of Civil Procedure 56. See FED. R. CIV. P. 56;

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir.

1990).

Before reviewing the district court’s disposition of

Madden’s claim as a grant of summary judgment, however, we must

first determine whether Madden was afforded the procedural

protections of Rule 56. See Washington, 901 F.2d at 1284. Under

Rule 56(c), after the court accepts matters outside the

pleadings, the non-movant must have ten days’ notice to respond

and submit additional evidence. See FED. R. CIV. P. 56(c);

Washington, 901 F.2d at 1284. After reviewing the record, we

conclude that Madden had proper notice under Rule 56(c). The

Center filed its motion to dismiss on November 26, 1996. Madden

failed to respond within twenty days, as required by Southern

District of Texas Local Rule 6(d), and the district court granted

the motion on February 18, 1997. Madden filed a motion for leave

to file a response to the Center’s motion to dismiss and the
8

response itself on February 21, 1997, and a motion for

reconsideration of the district court’s dismissal order on

February 27, 1997. The district court did not rule on the

motions until May 8, 1997. We think it apparent that Madden had

sufficient notice that the court could treat the motion to

dismiss as a motion for summary judgment.

We review a grant of summary judgment de novo, applying the

same standards as the district court. See United States v.

Johnson, 160 F.3d 1061, 1063 (5th Cir. 1998). After consulting

applicable law in order to ascertain the material factual issues,

we consider the evidence bearing on those issues, viewing the

facts and the inferences to be drawn therefrom in the light most

favorable to the non-moving party. See King v. Chide, 974 F.2d

653, 656 (5th Cir. 1992). Summary judgment is properly granted

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.” 

See FED. R. CIV. P. 56(c).

III. DISCUSSION

We begin by summarizing Madden’s claim. In his original

petition, the live pleading with respect to the negligence claim

in this case, Madden asserts that “DEFENDANT CENTER owed the

PLAINTIFF and members of the public similarly situated as the

PLAINTIFF, a duty to investigate before becoming involved in any

action relating to the custody of a child.” According to the
 

4 At the beginning of oral argument, counsel stated,

“Clearly, if all that the Center’s doing is conveying

information, they’re not going to be subject to any liability.” 

Later, the following colloquy ensued:

9

petition, the Center “encouraged and assisted” Banks in obtaining

physical custody of Johnny, instructed Banks to contact Madden,

contacted Comal County authorities and “convinced” them to issue

a warrant for Madden’s arrest, and obtained a copy of Madden’s

itinerary from Banks. 

In his brief on appeal, Madden argues that the Center “did

more than communicate the limited information it possessed

regarding BANKS’ custody allegation” because it “lent its

reputation to BANKS and actively persuaded law enforcement to act

erroneously” and that the Center has a duty to “reasonably verify

claims of custody and abduction before actively acting as an

advocate” in a missing-child case. Similarly, Madden’s reply

brief states that “MADDEN asks not that the CENTER investigate

every case before passing information to law enforcement, MADDEN

merely asks that the CENTER face the consequences of failing to

act reasonably before actively advocating one parent’s right to

custody of a child over the rights of the other parent.” 

At oral argument, Madden’s counsel conceded that his client

would have no claim if the Center had merely “neutrally

convey[ed] information,” but argued that the Center should have

investigated Banks’s allegations before “persuad[ing] and

convinc[ing] law enforcement to act when it would not have

otherwise acted so.”4 We find, however, that there is no
THE COURT: Are you saying that if all that had happened here

was that they had acted as a clearinghouse that you wouldn’t

have a case?

COUNSEL: Yes, ma’am.

THE COURT: You are saying that?

COUNSEL: I concede that, yes ma’am.

THE COURT: Okay.

 

5 The memorandum was part of a mediation notebook belonging

to the National Broadcasting Company (NBC), whom Madden sued for

defamation after one of its Philadelphia affiliates broadcast an

interview with Banks, and was faxed to Madden’s attorney during

settlement negotiations. At oral argument, counsel stated that

he was in possession of the memorandum but had not produced it

because of an agreement with NBC.

10

genuine issue of material fact as to whether the Center did

anything more than act as a neutral information clearinghouse. 

The Center’s motion to dismiss included an affidavit from Yore

stating that it merely advised Banks as to how she could regain

possession of her son, contacted Comal County authorities to

check on the status of her request for an arrest warrant, and

helped coordinate the efforts of local officials, Interpol, and

the United States Customs Service to investigate the Banks-Madden

matter. Madden’s only evidence that the Center did anything more

is an affidavit from his attorney describing an undated

memorandum from Yore.5 This memorandum, counsel’s affidavit

asserts, states that the Center “‘persuaded’ the local police

department to enter the child in NCIC” and “‘convinced the local

law enforcement to file felony charges against Plaintiff Madden.” 

Madden did not submit Yore’s memorandum itself to the district

court. 

We cannot consider counsel’s description of the undated Yore

memorandum. Federal Rule of Civil Procedure 56(e) provides that
11

“[s]worn or certified copies of all papers or parts thereof

referred to in an affidavit shall be attached thereto or served

therewith.” “This means that if written documents are relied

upon they actually must be exhibited; affidavits that purport to

describe a document’s substance or an interpretation of its

contents are insufficient.” 10A CHARLES ALAN WRIGHT ET AL., FEDERAL

PRACTICE & PROCEDURE § 2722, at 380-81 (1998); see Doddy v. Oxy USA,

Inc., 101 F.3d 448, 462-63 (5th Cir. 1996) (noting that Rule

56(e) requires that sworn or certified copies of papers referred

to in an affidavit be attached thereto, but determining that the

rule was not violated where the affidavit in question did not

refer to any document); see also Friedel v. City of Madison, 832

F.2d 965, 970 (7th Cir. 1987) (reaffirming Rule 56(e)’s

requirement that copies of papers referred to in an affidavit be

attached); Walling v. Fairmont Creamery Co., 139 F.3d 318, 322

(8th Cir. 1943) (noting that under Rule 56(e), “[w]hen written

documents are relied on, they must be exhibited in full”). 

Without the benefit of Madden’s counsel’s description of Yore’s

memorandum, we conclude that there is no genuine issue of

material fact as to whether the Center acted as anything other

than a neutral information clearinghouse. This leaves Madden

only with his claim that the Center was negligent in failing to

investigate Banks’s allegations before advising her and conveying

her claims to law enforcement authorities, but he has already

conceded that he cannot prevail on these allegations.

 
12

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.