UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEVIN BRIAN FORNSHILL,

Plaintiff-Appellant,

v.

CHRISTOPHER W. RUDDY; JAMES DALE

No. 95-2490

DAVIDSON; AGORA, INCORPORATED,

d/b/a Strategic Investment, LLC;

WESTERN CENTER FOR JOURNALISM,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CA-94-2723-AW)

Argued: May 10, 1996

Decided: June 11, 1996

Before MICHAEL, Circuit Judge, NORTON, United States

District Judge for the District of South Carolina,

sitting by designation, and DOUMAR,

Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Philip Matthew Stinson, Sr., Philadelphia, Pennsylvania,

for Appellant. Michael Edward Geltner, GELTNER & ASSO-
CIATES, P.C., Washington, D.C., for Appellees. ON BRIEF: James

McCollum, Jr., JAMES MCCOLLUM & ASSOCIATES, P.C., College Park, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Kevin Fornshill appeals from the district court's entry of summary

judgment in favor of defendants in this defamation action. Fornshill

argues that the district court erred in converting defendants' Fed. R.

Civ. P. 12(b)(6) motion into a motion for summary judgment and that

the court erred in holding that defendants' publications were not "of

and concerning" him. Finding no error, we affirm.

I.

Fornshill's defamation claim stems from a report, written by defendant Christopher Ruddy, relating to the suicide death of Deputy White

House Counsel Vincent Foster. Fornshill was one of 430 United

States Park Police assigned to the Washington, D.C., metropolitan

area. On July 20, 1993, Fornshill was dispatched to Fort Marcy Park

in McLean, Virginia, where Foster's body was discovered. Fornshill

remained at the scene for approximately ten minutes.

On January 19, 1994, Attorney General Janet Reno appointed Robert Fiske to investigate matters relating to Foster's death. On June 30,

1994, Fiske issued a report which concluded, among other things, that

Foster committed suicide, that Fornshill discovered Foster's body,

and that Foster died at the location where Fornshill discovered the

body.

On July 19, 1994, Ruddy, a former New York Post reporter, published a document entitled A Special Report on the Fiske Investigation

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of the Death of Vincent W. Foster, Jr.. The report is largely a critique

of Fiske's investigation and report. Ruddy's report in part alleges that

the park police participated in a cover-up by changing, in their official

reports, the spot where Foster's body was found. Ruddy's report also

alleges that "someone re-created a second crime scene by the second

cannon -- complete with blood stain."

Ruddy's report is divided into five sections. The first section, entitled "The Cover-Up," is the only section in which Fornshill's name

appears. Ruddy begins this section by calling the events "one of the

biggest cover-ups in American history." He says that at least twenty

officials have knowledge that could "incriminate many of the federal

officials involved in investigating the death of Foster." Ruddy also

says that "[t]here is powerful evidence that these officials obstructed

justice by" issuing false reports, lying to the press and public, and

intentionally misleading Fiske, his staff, and the FBI. Ruddy continues, "Revelation of this cover-up would also seriously impugn the

credibility and legitimacy of the U.S. Park Police, whose forensic and

physical evidence constituted a major part of the special prosecutor's

report on the cause of Foster's death."

In the remainder of "The Cover-Up" section, Ruddy compares

Fiske's report with the "unrehearsed" account of events he received

from a paramedic who was on duty the night of Foster's death. Ruddy

mentions Fornshill's name five times in describing how Fiske

reported Fornshill's discovery of the body. Ruddy mentions no other

United States Park Police officer by name in this discussion. Fornshill

is not mentioned by name in the remaining sections of the report.

Defendant Agora, Inc. publishes a newsletter entitled Strategic

Investment. Agora printed excerpts from Ruddy's report in the August

17, 1994, issue of the newsletter. The article introducing the excerpts

was written by defendant James Davidson. Fornshill's name does not

appear in the newsletter. On August 28, 1994, defendant Western

Journalism Center placed a full-page advertisement in the New York

Times calling for an independent investigation of Foster's death and

offering discount coupons for Ruddy's report. The advertisement did

not mention Fornshill's name.

On August 31, 1994, Fornshill filed a complaint in Maryland state

court, and the defendants removed the action to the United States Dis-

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trict Court for the District of Maryland. Fornshill's complaint alleged

that Ruddy defamed him in his report by stating that Fornshill: (1)

lied about the location of Foster's body, (2) participated in a cover-up

by changing the location of Foster's body, (3) obstructed justice by

lying to the press and public and by committing a number of federal

offenses, including intentionally misleading Fiske, his staff, and the

FBI, and (4) did not find the body. The complaint alleged that the

remaining defendants were liable because they republished Ruddy's

report.

On November 4, 1994, defendants moved to dismiss Fornshill's

complaint pursuant to Rule 12(b)(6). The court conducted a hearing

on July 14, 1995. Because the parties (including Fornshill) had submitted materials outside of the pleadings, the judge treated the Rule

12(b)(6) motion as a motion for summary judgment. No party

objected.

On July 24, 1995, the district court ruled that the publications were

not "of and concerning" Fornshill and granted summary judgment in

favor of the defendants. On the same day, the judge received Fornshill's motion to file supplemental materials. The judge denied the

motion as untimely. This appeal followed.

II.

Fornshill first argues that the district court erred by treating defendants' Rule 12(b)(6) motion as a Rule 56 motion for summary judgment. He argues that before converting defendants' Rule 12(b)(6)

motion into one for summary judgment, the court failed to give him

notice and a reasonable opportunity to present all material pertinent

to the motion for summary judgment. We do not believe that the district court erred.

Rule 12(b) allows a district court to convert a motion to dismiss for

failure to state a claim into a motion for summary judgment so long

as the parties have a "reasonable opportunity" to present materials

pertinent to the motion for summary judgment. Herbert v. Saffel, 877

F.2d 267, 270 (4th Cir. 1989); see Fed. R. Civ. P. 12(b). In this case,

Fornshill unquestionably had such an opportunity. Attached to defendants' Rule 12(b)(6) motion were several declarations and other mate-

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rials outside the pleadings, putting Fornshill's counsel on notice of

possible conversion. See Wheeler v. Hurdman, 825 F.2d 257, 260

(10th Cir.), cert. denied, 484 U.S. 986 (1987). Fornshill's counsel

apparently understood this possibility because in his memorandum in

opposition to defendants' Rule 12(b)(6) motion, he articulated the

standard for summary judgment and stated that there existed a genuine dispute of material fact. Attached to his opposition to the motion

was Fornshill's affidavit and a transcript of Fornshill's sworn testimony before the United States Senate Banking Committee. At the

hearing on defendants' motion (over seven months later), Fornshill's

counsel submitted to the court additional materials outside the pleadings. Finally, the district judge announced at the hearing that he

would treat the motion as one for summary judgment, and Fornshill's

counsel did not object. Under these circumstances, we conclude that

Fornshill should have expected summary judgment treatment and that

he had ample opportunity to submit materials pertinent to a motion

for summary judgment. See Maruho Co. v. Miles, Inc., 13 F.3d 6, 8

(1st Cir. 1993).*

III.

With respect to the substance of his defamation claim, Fornshill

argues that the district court erred for two reasons. First, he says that

Ruddy's report is "of and concerning" him (Fornshill) because he is

one of only three park police officers specifically named in the report

and one of only two park police who were at the Foster death scene.

See Ewell v. Boutwell, 121 S.E. 912, 914-15 (Va. 1924). Second,

Fornshill says that a jury must decide the issue of whether a publication is "of and concerning" the plaintiff. See The Gazette, Inc. v.

Harris, 325 S.E.2d 713, 739 (Va. 1985).

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*We likewise reject Fornshill's argument that the district court abused

its discretion by refusing to consider supplemental materials submitted

six days after the hearing. A party must "show cause" and demonstrate

"excusable neglect" for its failure to timely file additional materials. See

Fed. R. Civ. P. 6(d); Lujan v. National Wildlife Federation, 497 U.S.

871, 895-96 (1990). Since Fornshill's counsel was on notice that the

motion might be converted to one for summary judgment, Fornshill cannot show cause for the failure to timely file the materials.

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We think the district court correctly concluded that Ruddy's report

was essentially a criticism of Fiske's report and the government's

investigation of Foster's death. Ruddy's report criticizes "many of the

federal officials involved" and alleges that the park police changed

the location of the body "in their official reports." Fornshill was only

on the scene for ten minutes, was neither an investigator nor a detective, and never assisted in the preparation of any park police report.

Thus, we agree that the publication was not "of and concerning" Fornshill. There is no issue for a jury to decide, and we affirm the entry

of summary judgment in favor of all defendants for the reasons stated

in the district court's thorough opinion. See Fornshill v. Ruddy, 891

F. Supp. 1062 (D. Md. 1995).

IV.

The judgment of the district court is affirmed.

AFFIRMED

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