                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT

                                          No. 99-50188


In the Matter of JAMES G. LACHANCE,

                                                              Debtor.
JAMES G. LACHANCE,

                                                              Appellant-Cross-Appellee.
                                              versus

HOME INSURANCE COMPANY,
                                                              Appellee,

JEFFREY D. TALMADGE; SCOTT, DOUGLASS
& MCCONNICO L.L.P.; and JULIE SPRINGER,

                                                              AppelleesCross-Appellants.


                      Appeal from the United States District Court
                          for the Western District of Texas
                                (C.A. A-98-CV-797-SS)
                                        February 9, 2000
Before POLITZ and DAVIS, Circuit Judges, and RESTANI, * Judge.
PER CURIAM:**
       James G. LaChance appeals the district court’s affirmance of a judgment of
dismissal by the bankruptcy court of his claims against Jeffrey D. Talmadge, Julie
A. Springer, Scott, Douglass & McConnico, L.L.P., and Home Insurance Company.


   *The Honorable Jane A. Restani, Judge of the United States Court of International Trade,
sitting by designation.
        **
          Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Talmadge, Springer, and Scott, Douglass cross-appeal the decision by the district
court that the dismissal as against them was without prejudice. We modify the
decision of the district court and, as modified, affirm.
      LaChance filed a legal malpractice action in state court against Talmadge,
whose malpractice carrier was Home Insurance. The malpractice action was
defended by Springer, an attorney with the Scott, Douglass law firm. The state
court granted summary judgment to the defendants in January 1996 and
LaChance’s subsequent appeal was dismissed as untimely.
      In May 1998 LaChance filed the instant adversarial proceeding in the
bankruptcy court, attempting to relitigate his previously adjudicated malpractice
claims. In addition, he alleged that the defendants and the state court judge
conspired to deprive him of his constitutional rights. Each of the defendants filed
motions seeking to dismiss for failure to state a claim. Home Insurance filed an
answer along with its motion to dismiss. LaChance subsequently moved for
voluntary dismissal without prejudice. The bankruptcy court denied LaChance’s
motion for voluntary dismissal and granted all of the defendants’ motions to
dismiss with prejudice.
      LaChance appealed to the district court which dismissed as frivolous his
motion for judgment on the pleadings. The district court affirmed that portion of
the bankruptcy court ruling dismissing with prejudice all claims against Home
Insurance.   It reversed, however, that part of the judgment dismissing with
prejudice the claims against Talmadge, Springer, and Scott, Douglass, remanding
to the bankruptcy court for voluntary dismissal of those claims without prejudice.
In so ruling, the district court relied on Federal Rule of Civil Procedure 41(a)(1)(I),
which provides that “an action may be dismissed by the plaintiff without order of
court by filing a notice of dismissal at any time before service by the adverse party



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of an answer or of a motion for summary judgment, whichever first occurs.”1 Such
a dismissal is without prejudice.2 The court reasoned that Talmadge, Springer, and
Scott, Douglass had not served answers or motions for summary judgment before
LaChance filed his voluntary motion to dismiss and, therefore, the dismissal had
to be without prejudice.
                                           ANALYSIS
          We review a bankruptcy court’s conclusions of law de novo and its findings
of fact for clear error.3 When the district court has affirmed the bankruptcy court’s
findings, our review under the clearly erroneous standard is strict. 4
          After considering the parties’ briefs, the record, and the relevant law, we
agree with the dismissal of LaChance’s claims and conclude that his contentions
on appeal are without merit. We disagree, however, with the district court’s
conclusion that dismissal of his claims should be without prejudice with respect to
Talmadge, Springer, and Scott, Douglass. Rather, their motions to dismiss are
deemed motions for summary judgment for the purposes of Rule 41.
          Talmadge’s motion expressly states that it was being filed under Federal
Rule of Civil Procedure 12(b) and Rule 56, and their counterparts in the bankruptcy
rules of procedure.5 We have held that for purposes of Rule 41, a Rule 12(b)(6)
motion becomes a motion for summary judgment unless all extraneous material



          1
           Fed. R. Civ. P. 41(a)(1)(i).
          2
           Id.
          3
           Traina v. Whitney Nat’l Bank, 109 F.3d 244 (5th Cir. 1997).
          4
           Id.
      5
       Fed. R. Bankr. P. 7012(v) and 7056. Fed. R. Civ. P. 56 deals solely with summary judgment.
Fed. R. Civ. P. 12(b) provides that a motion to dismiss for failure to state a claim may be treated as
a motion for summary judgment if matters outside the pleading are presented to and not excluded by
the court.

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presented is excluded by the court.6 Talmadge’s motion invoked Rule 56 and the
bankruptcy court was presented with and considered matters outside the pleadings.
The bankruptcy court correctly dismissed LaChance’s claims against Talmadge
with prejudice, and its judgment with respect thereto is reinstated and affirmed.
       The motion filed by Springer and Scott, Douglass notes that it was being
filed under Rule 12(b)(6) and its bankruptcy rule counterpart. It did not expressly
state, as had Talmadge’s, that it was being filed under the summary judgment rule.7
Nonetheless, we conclude that their motion to dismiss for failure to state a claim
was treated properly as a motion for summary judgment for purposes of Rule 41.
The bankruptcy court was presented with and considered in its ruling materials
outside of the pleadings. As this court has long resolved, in such an instance a
motion to dismiss under Rule 12(b)(6) will be
       converted into a motion for summary judgment because the trial court
       was presented with, and did not exclude, matters outside the pleadings.
       For purposes of Rule 41(a)(1), a converted 12(b)(6) motion to dismiss
       will be treated as a motion for summary judgment.8


       Insofar as the judgment appealed dismisses LaChance’s motion for judgment
on the pleadings and dismisses with prejudice his claims against Home Insurance

Company, it is AFFIRMED.
       Insofar as the judgment appealed requires all claims against Jeffrey

Talmadge, Julie Springer, and Scott, Douglass & McConnico, L.L.P., to be
dismissed without prejudice, the judgment of the district court is modified to affirm


       6
        Exxon Corp. v. Maryland Casualty Co., 599 F.2d 659 (5th cir. 1979).
       7
         They did, however, request that the court grant their “Motion for Summary Judgment” in
their Prayer.
       8
        Exxon, 599 F.2d at 661 (citations omitted).

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the judgment of the bankruptcy court dismissing all claims with prejudice and, as
so modified, is AFFIRMED.




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