                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                April 18, 2006
                               No. 05-13142                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 04-20481-CV-AJ

UNIVERSAL EXPRESS, INC.,
a Nevada corporation authorized
to do business in the State of
Florida,

                                                             Plaintiff-Appellant,

                                      versus

UNITED STATES SECURITIES AND EXCHANGE COMMISSION,
JOHN DOE 1,
JOHN DOE 2,
and diverse other persons whose
identity also is currently
unknown to the plaintiff,


                                                          Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                  (April 18, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Universal Express, Inc., appeals the dismissal of its complaint against the

Securities Exchange Commission and two unnamed employees of the Commission

on the narrow ground that the district court failed to give notice that it would rely

on documents outside of the complaint when it granted the motion to dismiss.

Because the only matters on which the district court relied were public records, we

affirm.

      In June 2003, the Commission began to investigate Universal for securities

fraud. Around August 2003, the Commission issued subpoenas to Universal that

requested various documents. Universal produced the requested documents

without objection. On March 31, 2004, the Commission brought a civil

enforcement action in the Southern District of New York against Universal.

      On March 2, 2004, before the Commission initiated its action, Universal

filed a complaint against the Commission and two of its employees that alleged the

Commission had issued the subpoena in retaliation for criticisms Universal had

made of the Commission. The complaint alleged these actions violated the First

and Fifth Amendment of the U.S. Constitution and state tort law. Universal sought

damages as well as declaratory and injunctive relief.



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       The Commission moved to dismiss the suit brought by Universal. In

support of its motion, the Commission attached the complaint it filed in the

enforcement proceeding pending before the Southern District of New York. The

district court considered the action pending before the Southern District of New

York and dismissed several of the claims of Universal because the action pending

in New York provided an adequate alternative remedy. The district court granted

the motion to dismiss as to the other claims on grounds not relevant to this appeal.

       We review de novo the grant of a motion to dismiss. Manuel v. Convergys

Corp., 430 F.3d 1132, 1139 (11th Cir. 2005). A motion to dismiss may be granted

for defect in jurisdictional, venue, or process, see Fed. R. Civ. P. 12(b)(1)-(5), or

for failure to state a claim, see id. R. 12(b)(6). When a district court considers a

motion to dismiss on jurisdictional grounds, it may consider matters “beyond the

pleadings in order to determine whether it lacked subject matter jurisdiction.”

Goodman v. Sipos, 259 F.3d 1327, 1331 n.6 (11th Cir. 2001). When the motion is

based on failure to state a claim, the district court must either limit itself to the

allegations within the pleading or, at its discretion, treat the motion as one for

summary judgment and provide adequate notice as required by Rule 56(c). Fed. R.

Civ. P. 12(b).




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      Universal argues that the district court considered matters outside the

pleadings—the complaint filed by the Commission in the Southern District of New

York—when it granted the motion to dismiss and failed to provide adequate notice

under Rule 56(c). The Commission argues that the decision of the district court

was jurisdictional and, alternatively, the complaint is a matter of public record and

may therefore be considered without converting the motion to dismiss to a motion

for summary judgment. We need not address whether the decision of the district

court was based on jurisdiction or on failure to state a claim because we agree with

the Commission that the district court could consider the complaint without

converting the motion to one for summary judgment.

      A district court may take judicial notice of certain facts without converting a

motion to dismiss into a motion for summary judgment. See Bryant v. Avado

Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999). Public records are among the

permissible facts that a district court may consider. See Stahl v. U.S. Dep’t of

Agric., 327 F.3d 697, 700 (8th Cir. 2003) (“The district court may take judicial

notice of public records and may thus consider them on a motion to dismiss.”); cf.

Bryant, 187 F.3d at 1278 (11th Cir. 1999) (holding that “a court, when considering

a motion to dismiss in a securities fraud case, may take judicial notice . . . of

relevant public documents required to be filed with the SEC”). Because the



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complaint filed in the Southern District of New York is a public document, the

district court was not obliged to convert the motion to dismiss to one for summary

judgment or comply with the notice requirements of Rule 56(c). That the

complaint in the New York action was filed after Universal filed its complaint does

not affect its status as a public record.

       AFFIRMED.




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