                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-3589
                                     ___________

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Family Services, Inc., an Arkansas     *     [UNPUBLISHED]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

                              Submitted: April 15, 2004
                                 Filed: August 27, 2004
                                  ___________

Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
                         ___________

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.
                                          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.

                                          -2-
                                         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).



                                           -3-
        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.
                        ______________________________




                                          -4-
