UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHELE B. WILLIAMS,

Plaintiff-Appellant,

v.

JEEP SALES & SERVICE COMPANY,

d/b/a Haynes Motor Company;

WAYNE SATTERWHITE, individually

No. 97-2751

and in his capacity as General Sales

Manager, Haynes Motor Company,

Defendants-Appellees,

and

PERRY DREWRY; RON WEST,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CA-97-403-3)

Submitted: August 18, 1998

Decided: September 10, 1998

Before WILKINS and LUTTIG, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Sa'ad El-Amin, EL-AMIN & CRAWFORD, Richmond, Virginia, for

Appellant. Jack W. Burtch, Jr., Richard K. Bennett, MCSWEENEY,

BURTCH & CRUMP, Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michele B. Williams appeals the district court's dismissal of her

employment discrimination action against appellees Jeep Sales and

Service Company, an authorized Jeep dealer in Richmond, Virginia,

doing business as Haynes Motor Company ("Jeep") and Wayne Satterwhite, Jeep's general sales manager. Williams brought this suit

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-5 (1994), and the district court granted Appellees' oral

motion to dismiss on the ground that Williams failed to file a timely

charge of discrimination with the Equal Employment Opportunity

Commission.

In this appeal, Williams does not challenge the substantive basis

for the district court's dismissal. Rather, she alleges that the court

erred (1) in granting Appellees' motion to dismiss without a written

motion to dismiss being filed; and (2) in granting Appellees' motion

to dismiss after holding a hearing and considering evidence regarding

the motion. We disagree with both arguments and affirm the court's

dismissal.

Williams' contention that the district court erred in dismissing the

case based on an oral rather than a written motion to dismiss is without merit. A motion to dismiss for lack of subject matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1) is subject to the general require-

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ments for motions set out in Fed. R. Civ. P. 7(b)(1). Rule 7(b)(1)

states in relevant part that:

An application to the court for an order shall be by motion

which, unless made during a hearing or trial, shall be made

in writing. . . .1

Thus, if a motion to dismiss is made during a hearing or trial--i.e. on

the record--no written motion is required.

Here, Appellees attempted to raise the question of subject matter

jurisdiction in a motion to file a motion for summary judgment out

of time. The district court did not allow the filing of the motion for

summary judgment, and Appellees subsequently raised the question

of jurisdiction again during a pretrial conference in the district court.

Thereafter, the court scheduled a hearing on the motion and afforded

Williams the opportunity to file a written response. At the hearing,

Appellees were asked to repeat their motion for the record and to state

the grounds upon which that motion was made.2 The court then heard

evidence as to whether subject matter jurisdiction existed.3

We are satisfied that this procedure conformed with Fed. R. Civ.

P. 7(b)(1). Appellees made their initial motion during a pretrial conference, and the substance of the motion was repeated at the hearing

on the matter. In addition, that the district court was prompted to conduct the hearing by what occurred during a pretrial conference does

not mean that its decision to dismiss was error. Rather, the question

of subject matter jurisdiction had already been raised in Appellee

Wayne Satterwhite's answer.4 In any event, courts are free to raise the

question of subject matter jurisdiction sua sponte at any time.5

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1 FED. R. CIV . P. 7(b)(1) (emphasis added).

2 See J.A. at 40.

3 Id. at 41-107.

4 Id. at 29.

5 See United States v. White, 139 F.3d 998, 999-1000 (4th Cir. 1998),

petition for cert. filed, 66 U.S.L.W. #6D6D 6D6D# (U.S. July 6, 1998) (No. 98-

5146).

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Therefore, we find no error in the court's dismissal of this case in

the absence of a written motion to dismiss. Accordingly, we decline

to disturb the order on this ground.

Similarly, we find no error in the district court's dismissal of this

case after holding a hearing and considering evidence regarding

Appellees' oral motion to dismiss. Williams contends that a district

court cannot consider evidence beyond the pleadings in ruling on a

12(b)(1) motion. She suggests that the court should have considered

the appellees' motion not as a motion to dismiss but as a motion for

summary judgment. Under Williams' characterization, the court

would assume appellant's facts to be true, and would decide the case

on the pleadings, without an evidentiary hearing.

The court properly decided the question of subject matter jurisdiction under Rule 12(b)(1). Appellees challenged the court's subject

matter jurisdiction by contending that appellant's jurisdictional allegations were not true; the December 10 hearing examined whether or

not Williams filed a timely charge with the EEOC. Where jurisdictional facts are disputed, our interpretation of 12(b)(1) has been that

a court "may . . . go beyond the allegations of the complaint and in

an evidentiary hearing determine if there are facts to support the jurisdictional allegations." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.

1982).

We find both of Williams' arguments without merit. Accordingly,

we grant Appellees' motion for summary affirmance and affirm the

district court's dismissal. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED

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