United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-3589

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Sue E. Dixon, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

Vera Lloyd Presbyterian Home and * Eastern District of Arkansas.

Family Services, Inc., an Arkansas * [UNPUBLISHED]

Corporation, *

*

Appellee. *

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Submitted: April 15, 2004

Filed: August 27, 2004

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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.

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PER CURIAM.

Sue E. Dixon (Dixon) brought suit against Vera Lloyd Presbyterian Home &

Family Services, Inc., (Lloyd Home), alleging that Lloyd Home violated her federal

constitutional rights when it terminated her employment. On Lloyd Home’s motion

to dismiss, the district court reviewed the parties’ respective evidentiary materials and

dismissed the action for lack of subject matter jurisdiction, concluding that Lloyd

Home was not a state actor. Although we believe that the district court should have

followed more closely the procedures for treating the motion as one for summary

judgment, its failure to do so constituted harmless error at worst, and thus we affirm.
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I.

Lloyd Home is a nonprofit Arkansas corporation that owns and operates the

Vera Lloyd Presbyterian Home for Children in Monticello, Arkansas. The facility

furnishes room and board for at-risk children and is a licensed childcare provider

regulated by the Arkansas Department of Human Services. Dixon worked at Lloyd

Home’s facility until her termination in June of 2002.

Dixon’s complaint lacks clarity, but interpreted liberally, see Fed. R. Civ. P.

8(a), it asserts a claim under 42 U.S.C. § 1983. Lloyd Home moved for dismissal

under Federal Rule of Civil Procedure 12(b)(1), asserting that the district court lacked

subject matter jurisdiction because Lloyd Home was not a state actor. Lloyd Home

attached various affidavits and other evidentiary materials detailing its involvement

with the State of Arkansas. In response, Dixon noted that Lloyd Home “appear[ed]

to be arguing a Rule12(b)(6) motion under the guise of a Rule 12(b)(1) motion” and

observed that “[i]n considering a motion for summary judgement [sic], the Court must

treat as true all facts alleged that support the Plaintiff’s claim.” Dixon also attached

her own affidavit regarding Lloyd Home’s involvement with the State of Arkansas.

Although Dixon contended that Lloyd Home’s motion to dismiss was premature

inasmuch as the parties had not made initial disclosures, see Fed. R. Civ. P. 26(a)(1),

she subsequently agreed to postpone the initial disclosure deadline until after the

district court had ruled on the motion.

The district court characterized Lloyd Home’s motion as a factual attack on

subject matter jurisdiction and concluded that it could weigh evidence outside of the

pleadings. After noting that Dixon had not specified what additional discovery she

would seek, the district court proceeded to evaluate the parties’ respective affidavits.

Relying on the Supreme Court’s decision in Rendell-Baker v. Kohn, 457 U.S. 830

(1982) and our opinion in Nichols v. Metro Ctr. for Indep. Living, 50 F.3d 514 (8th

Cir. 1995), the district court determined that Lloyd Home was not a state actor and,

as indicated above, dismissed the case for want of jurisdiction.
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II.

Dismissal for lack of subject matter jurisdiction is appropriate only in those

rare instances when the challenged claim “clearly appears to be immaterial and made

solely for the purpose of obtaining jurisdiction or where such a claim is wholly

insubstantial and frivolous.” Trimble v. Asarco, Inc., 232 F.3d 946, 953 (8th Cir.

2000) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)). A motion to dismiss for

lack of subject matter jurisdiction predicated on failure to establish an essential

element of the cause of action should generally be analyzed under Fed. R. Civ. P.

12(b)(6). Id. 

On its face, Dixon’s claim does not appear to be either immaterial or

insubstantial and frivolous. Accordingly, the district court should have analyzed

Lloyd Home’s motion under the standards of Rule 12(b)(6). Further, because the

district court considered material outside of the pleadings, it should have treated the

motion as one for summary judgment. See Fed. R. Civ. P. 12(b); BJC Health Sys.

v. Columbia Cas. Co., 348 F.3d 685, 687-88 (8th Cir. 2003). 

When converting a motion to dismiss to one for summary judgment, a district

court is normally required to give notice of that fact to the parties, a requirement that

generally must be strictly complied with. Country Club Estates, L.L.C. v. Town of

Loma Linda, 213 F.3d 1001, 1005 (8th Cir. 2000). Nevertheless, in a given case

constructive notice can be sufficient. Angel v. Williams, 12 F.3d 786, 788 (8th Cir.

1993). Moreover, the failure to give formal notice is harmless where the nonmoving

party has submitted materials outside of the pleadings in support of its resistance to

a motion to dismiss or where the nonmoving party has an adequate opportunity to

respond to the summary judgment motion and it does not appear that any material

facts were disputed or missing from the record. Davis v. Johnson Controls, Inc., 21

F.3d 866, 867 (8th Cir. 1994).
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Dixon’s response to the motion to dismiss asserted that Lloyd Home’s status

as a state actor vel non was a factual question. Attached to the response was Dixon’s

affidavit, in which Dixon set forth the facts that she believed established that Lloyd

Home was in fact a state actor. The affidavit disputes the amount of state funding

received by Lloyd Home’s facility, the status of the facility as a juvenile detention

center, and the precise import of various intake forms but it does not allege or

present evidence that Lloyd Home’s personnel decisions, including its decision to

terminate Dixon, constituted state action. See Nichols v. Metro Ctr. for Indep.

Living, 50 F.3d 514, 517-518 (8th Cir. 1995). Accordingly, we conclude that the

affidavit does not raise a genuine issue of fact on Lloyd Home’s status as a state

actor.

Putting aside the question of the inadequacy of the affidavit, Dixon did not

specify what additional information she would seek to produce in support of her

resistance to the motion to dismiss or otherwise ask to postpone a decision on the

motion until further discovery could be completed. Indeed, she agreed to defer the

initial disclosure deadline until after the district court had ruled on the motion. We

conclude, therefore, that at the very least Dixon had constructive notice that the

motion was being treated as one for summary judgment and that she was provided

an adequate opportunity to present materials outside of the pleadings that might have

raised a genuine issue of fact on the question of Lloyd Home’s status as a state actor.

See Trimble, 232 F.3d at 955. As nothing in the record, even when read in the light

most favorable to Dixon, suggests that Lloyd Home’s personnel decisions

constituted state action, we conclude that the district court’s failure formally to

convert the motion to dismiss to one for summary judgment constituted harmless

error. Accordingly, the judgment is affirmed.

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