11-3375-cv
Daniel P. Galiotti, Donald P. Galiotti v. Michael Green, et al.

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 29th day of August, two thousand twelve.

Present: ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
         PETER W. HALL,
                     Circuit Judges,
____________________________________________________________

DANIEL P. GALIOTTI, DONALD P. GALIOTTI,

                          Plaintiffs-Appellants,

JAMES GALIOTTI,

                          Plaintiff

                          -v-                            No. 11-3375-cv

MICHAEL GREEN, Individually and in his Official Capacity as District Attorney for Monroe
County, STEFANIE L. GUIDO, Assistant District Attorney, in her Official Capacity as an
Assistant District Attorney for the Monroe County District Attorney’s Office, Monroe County,

                          Defendants-Appellees,

CHARLES WADDINGTON, New York State Insurance Frauds Bureau Investigator,
Individually and in his Official Capacity, CITY OF ROCHESTER, MONROE COUNTY
AMERICAN AUTOMOBILE ASSOCIATION, AAA, SAFECO INSURANCE COMPANY,
NEW YORK STATE POLICE, AUTO THEFT UNIT, CITY OF ROCHESTER POLICE
DEPARTMENT, MONROE COUNTY SHERIFFS OFFICE, NEW YORK STATE
INSURANCE FRAUDS BUREAU, GARY S. SULLIVAN, New York State Insurance Frauds
Bureau Investigator, Individually and in his Official Capacity, MARK WILLIAMS, Investigator,
Individually and in his Official Capacities,

                     Defendants.
____________________________________________________________

For Plaintiffs-Appellants:        STEVEN LAPRADE (Christina A. Agola, on the brief), Christina
                                  A. Agola, PLLC, Brighton, N.Y.

For Defendants-Appellees:         MICHAEL ROMANCE CRAIN, Monroe County Department of
                                  Law, Rochester, N.Y.

       Appeal from the United States District Court for the Western District of New York
(Telesca, J.).


       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiffs-Appellants Daniel P. Galiotti and Donald P. Galiotti (collectively the

“plaintiffs” or the “Galiottis”) appeal from a July 21, 2011 judgment of the United States District

Court for the Western District of New York (Telesca, J.), entered in accordance with a decision

and order dated July 19, 2011, granting defendants’ motion for summary judgment and

dismissing the plaintiffs’ complaint. On behalf of the Monroe County District Attorney’s Office,

Defendants-Appellees Michael Green and Stefanie L. Guido (the “defendants”) prosecuted the

Galiottis for automobile insurance fraud. Following a bench trial, a state court judge dismissed

each count of the indictment. Thereafter, plaintiffs filed a complaint alleging a series of claims

under 28 U.S.C. § 1983 against the defendants. We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

       The Galiottis argue that the district court erred in treating a motion filed at the close of

discovery and titled a “Motion for Summary Judgment Pursuant to Rule 12(b)(6)” as a motion

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for summary judgment pursuant to Federal Rule of Civil Procedure 56. We disagree. When

defendants filed their inartfully titled motion, the period for filing a motion pursuant to Federal

Rule of Civil Procedure 12(b)(6) had long since ended, as had discovery. Additionally, in its

text, the defendants’ brief expressly requested summary judgment and cited the relevant legal

standard. Defendants also appended to the brief extrinsic evidence in support of their motion.

Finally, in more than one request to the district court for an extension of time to respond, the

plaintiffs referred to the defendants’ motion as one for summary judgment, thereby indicating

that they were aware of the nature of the motion and the potential consequences of failing to

respond to it with evidence outside the pleadings.

       Even if we were to treat the defendants’ motion as initially requesting relief pursuant to

Rule 12(b)(6), the district court did not err in converting it to a motion for summary judgment

under Rule 56. Federal Rule of Civil Procedure 12(d) provides that:

       [i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
       presented to and not excluded by the court, the motion must be treated as one for
       summary judgment under Rule 56. All parties must be given a reasonable
       opportunity to present all the material that is pertinent to the motion.

court acts properly in converting a motion for judgment on the

pleadings into a motion for summary judgment when the motion presents matters outside the

pleadings, but the rule requires that the court give ‘sufficient notice to an opposing party and an

opportunity for that party to respond.’” Hernandez v. Coffey, 

, 307 (2d Cir. 2009)

(quoting Groden v. Random House, Inc., 

, 1052 (2d Cir. 1995)). Formal notice,

however, is “[o]rdinarily . . . not required where a party ‘should reasonably have recognized the

possibility that the motion might be converted into one for summary judgment [and] was

[neither] taken by surprise [nor] deprived of a reasonable opportunity to meet facts outside the

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pleadings.’” 

Dep’t of Corr., 

, 521 (2d Cir. 1986)). “Even

where only the party moving to dismiss has submitted extrinsic material such as depositions or

affidavits, the opposing party may be deemed to have had adequate notice that the motion to

dismiss would be converted.” Sahu v. Union Carbide Corp., 

, 67 (2d Cir. 2008)

(internal quotation marks omitted).

       Plaintiffs had more than adequate notice that the defendants’ motion could be treated as

one for summary judgment. Additionally, plaintiffs were granted numerous extensions of time

to file their opposition brief. Instead of using this time to prepare a substantive response to the

defendants’ motion, plaintiffs’ opposition brief requested a further opportunity to respond. The

district court did not err by denying this final request.

       We have considered the Galiottis’ remaining arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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