                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-2110


TAMETTA BELLOTTE, Individually; E. B.; C. B., by          and
through their next friend and mother, Tametta Bellotte,

                Plaintiffs,

          v.

TRACY L. EDWARDS, Detective; P. G. SMITH, Deputy; KEITH
SIGULINSKY, Corporal, Ranson Police Department, formerly
UNKNOWN DEFENDANT ONE; ADAM LETTS, Corporal, Charles Town
Police Department, formerly UNKNOWN DEFENDANT TWO; ROBERT
SELL, Corporal, Jefferson County Sheriff's Department,
formerly UNKNOWN DEFENDANT THREE; KEVIN BOYCE, Corporal,
Jefferson County Sheriff's Department, formerly UNKNOWN
DEFENDANT FOUR; JAMES TENNANT, Deputy, Jefferson County
Sheriff's Department, formerly UNKNOWN DEFENDANT FIVE;
BRANDON   HAYNES,   Deputy,   Jefferson    County  Sheriff's
Department, formerly UNKNOWN DEFENDANT SIX; SAM SMITH,
Patrolman, Charles Town Police Department, formerly UNKNOWN
DEFENDANT SEVEN; ANTHONY MANCINE, Patrolman, Charles Town
Police Department, formerly UNKNOWN DEFENDANT EIGHT; PATRICK
NORRIS, Patrolman, Ranson Police Department,

                Defendants – Appellants,

          and

WAL-MART STORES EAST, L.P.,

                Defendant,

          v.

SAMUEL JOSEPH BELLOTTE,

                Third Party Defendant - Appellee.
                              No. 09-2271


TAMETTA BELLOTTE, Individually; E. B.; C. B., by          and
through their next friend and mother, Tametta Bellotte,

                Plaintiffs - Appellants,

          v.

WAL-MART STORES EAST, L.P.,

                Defendant – Appellee,

          and

TRACY L. EDWARDS, Detective; P. G. SMITH, Deputy; KEITH
SIGULINSKY, Corporal, Ranson Police Department, formerly
UNKNOWN DEFENDANT ONE; ADAM LETTS, Corporal, Charles Town
Police Department, formerly UNKNOWN DEFENDANT TWO; ROBERT
SELL, Corporal, Jefferson County Sheriff's Department,
formerly UNKNOWN DEFENDANT THREE; KEVIN BOYCE, Corporal,
Jefferson County Sheriff's Department, formerly UNKNOWN
DEFENDANT FOUR; JAMES TENNANT, Deputy, Jefferson County
Sheriff's Department, formerly UNKNOWN DEFENDANT FIVE;
BRANDON   HAYNES,   Deputy,   Jefferson    County  Sheriff's
Department, formerly UNKNOWN DEFENDANT SIX; SAM SMITH,
Patrolman, Charles Town Police Department, formerly UNKNOWN
DEFENDANT SEVEN; ANTHONY MANCINE, Patrolman, Charles Town
Police Department, formerly UNKNOWN DEFENDANT EIGHT; PATRICK
NORRIS, Patrolman, Ranson Police Department,

                Defendants,

          v.

SAMUEL JOSEPH BELLOTTE,

                Third Party Defendant.



Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cv-00094-JPB)

                                   2
Submitted:   June 29, 2010                   Decided:    July 21, 2010


Before NIEMEYER and     GREGORY,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jason P. Foster, STEPTOE & JOHNSON, PLLC, Martinsburg, West
Virginia;   Thomas  E.   Carroll,  CARROLL   &  TURNER, P.S.C.,
Monticello, Kentucky, for Appellants.      Joseph L. Caltrider,
BOWLES RICE MCDAVID GRAFF & LOVE, LLP, Martinsburg, West
Virginia;   Thomas  E.   Carroll,  CARROLL   &  TURNER, P.S.C.,
Monticello, Kentucky, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                   3
PER CURIAM:

            Tracy   L.    Edwards      and   co-defendants      (“the   police

officers”) appeal the district court’s order dismissing their

third-party complaint against Samuel Bellotte.             Tametta Bellotte

and her children appeal the district court’s dismissal of her

complaint against Wal-Mart Stores East, L.P. (“Wal-Mart”).                For

the reasons that follow, we affirm both judgments.

            The police officers argue on appeal that the district

court erred by applying the wrong standard for a Fed. R. Civ. P.

12(b) motion to dismiss.          This court generally follows the “Four

Corners Rule,” whereby, in considering a Rule 12(b)(6) motion, a

court may “consider the complaint itself and any documents that

are attached to it.”          CACI Int'l, Inc. v. St. Paul Fire & Marine

Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009).              A court may also

consider a document attached by the defendant if such a document

“was integral to and explicitly relied on in the complaint and

if   the   plaintiffs    do    not   challenge   its   authenticity.”     Am.

Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234

(4th Cir. 2004)     (internal        quotation    marks   and     alterations

omitted).

            Under this case law, the police officers are correct

that, by relying upon the affidavit filed by Samuel Bellotte,

the district court converted the motion to dismiss into one for

summary judgment.        However, “[i]t is well settled that district

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courts may convert a Rule 12(b)(6) motion to dismiss into a Rule

56 motion for summary judgment, allowing them to assess whether

genuine issues of material fact do indeed exist.”                    Bosiger v.

U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007).                 Although the

district court did not explicitly inform the parties that it was

converting the motion to dismiss into a summary judgment motion,

“appellate courts may take the district court’s consideration of

matters     outside     the     pleadings     to    trigger     an      implicit

conversion.”      Id.    Such     an   approach    serves    judicial    economy

because it “spar[es] the district court an unnecessary remand.”

Id.    With the proceedings in the lower court so understood, it

is clear that the he district court did not apply an incorrect

standard in denying the motion to dismiss.

            The police officers next argue that the district court

erroneously determined that Samuel Bellotte did not owe them a

duty of care for the purposes of their negligence claim against

him.     We cannot agree.      Under West Virginia law, a plaintiff may

recover for negligence by establishing:                (1) a duty that the

defendant owes to him; (2) a negligent breach of that duty; and

(3) injuries received thereby, resulting proximately from the

breach of that duty.          Webb v. Brown & Williamson Tobacco Co., 2

S.E.2d 898, 899 (W. Va. 1939).              The issue of whether a duty

exists     is   intertwined     with    the   issues    of    foreseeability.

Aikens v. Debow, 541 S.E.2d 576, 581 (W. Va. 2000).

                                        5
            We concur with the district court’s holding that the

police officers’ allegedly tortious actions were not foreseeable

to   the   reasonable    person     in   Samuel    Bellotte’s    position,   and

therefore    find   no   error    in     the   dismissal    of   the   officers’

negligence claim.        We hold the same with regard to the police

officers’ claim that Samuel Bellotte was the proximate cause of

the injuries sustained by Tametta Bellotte.                For the same reason

that the officers cannot show foreseeability, they also cannot

demonstrate causation.       We therefore affirm the district court’s

dismissal of the police officers’ third-party complaint against

Samuel Bellotte.

            Tametta      Bellotte        appeals    the     district    court’s

dismissal of her complaint against Wal-Mart.                 She argues first

that the district court improperly dismissed her complaint as

untimely served.      Because we find adequate grounds for dismissal

on the merits, we decline to rule on whether the district court

improperly began running the Fed. R. Civ. P. 4(m) time to serve

from the first complaint rather than from the second amended

complaint.

            Tametta Bellotte’s next argument on appeal is that the

district court erred in applying Virginia law to all of her

claims against Wal-Mart.

            This court reviews a district court’s choice of law

determinations de novo.           See United States v. Marin, 961 F.2d

                                          6
493, 496 (4th Cir. 1992).                    A federal court exercising diversity

jurisdiction must apply the choice of law rules of the state in

which it sits.              See Seabulk Offshore, Ltd. v. American Home

Assur.       Co.,    377    F.3d       408,        418-19     (4th Cir. 2004)          (citations

omitted).           Accordingly, the West Virginia district court was

bound by West Virginia choice of law rules in determining which

state’s law governed the parties’ dispute.

               West Virginia courts apply the lex loci delicti choice

of law rule; that is, the substantive rights between the parties

are    determined          by    the     place       of      the    injury.       McKinney       v.

Fairchild       Intern.         Inc.,        487    S.E.2d      913,    922     (W. Va. 1997).

Here, the injuries alleged by Tametta Bellotte took place both

in    Virginia       and    West       Virginia,         depending      on     which    cause    of

action is at issue.                  Her causes of action against Wal-Mart for

invasion       of     privacy         allege        injury         occurring     in     Virginia;

accordingly,         Virginia          law     applies        to     that     element    of     the

complaint.           As    to    her     causes         of   action    for     negligence       and

intentional         infliction          of    emotional        distress,        however,      West

Virginia law applies because the injury alleged (the nighttime

raid    by    police       on    the     Bellottes’          home)     took    place     in   West

Virginia.

               Turning          to     her     gross         negligence        claim,     Tametta

Bellotte claims that the district court improperly dismissed the

claim on the merits.                 We disagree.

                                                    7
              On appeal, the only duty Tametta Bellotte alleges is

the   general       duty   of      care      to       not   make   allegations           to   law

enforcement that Samuel Bellotte was a child pornographer.                                    Her

complaint does not actually allege that Wal-Mart was negligent

in its reporting the photographs to the police.                               However, even

construing the complaint broadly to incorporate this theory of

negligence,        Wal-Mart       still      did      not    owe   a    duty       to    Tametta

Bellotte or her children.                  There is no evidence in the record

that Wal-Mart was aware or should have been aware that Samuel

Bellotte was married and had children at home.                              Samuel Bellotte

did   not    sue    Wal-Mart,        and    Tametta         Bellotte    and      her    children

cannot sue based on a legal duty owed to one who is not a

plaintiff.         Moreover,       as      previously        discussed,       the       allegedly

tortious      actions        of      the      police         officers       constitute         an

intervening proximate cause of her injury that relieves Wal-Mart

of liability.         See Wolf v. Faquier County Bd. of Supervisors,

555 F.3d 311 (4th Cir. 2009).

              With respect to Tametta Bellotte’s claim that Wal-Mart

committed      the    tort      of      intentional          infliction       of        emotional

distress, we concur with the district court in holding that she

cannot      make    such   a      claim.           To    succeed       on   an     intentional

infliction of emotional distress claim under West Virginia law,

a plaintiff must prove four elements:



                                                  8
          (1) that the defendant’s conduct was atrocious,
     intolerable, and so extreme and outrageous as to
     exceed the bounds of decency; (2) that the defendant
     acted with intent to inflict emotional distress, or
     acted recklessly when it was certain or substantially
     certain emotional distress would result from his
     conduct; (3) that the actions of the defendant caused
     the plaintiff to suffer emotional distress; and
     (4) that the emotional distress suffered by the
     plaintiff was so severe that no reasonable person
     could be expected to endure it.

Travis v. Alcon Labs, Inc., 504 S.E.2d 419, 425 (W. Va. 1998).

Even taking her allegations as true, Tametta Bellotte cannot

prove that Wal-Mart or its employees knew of her existence.                         She

therefore cannot sustain an action for intentional infliction of

emotional distress.

            Tametta Bellotte next claims that Wal-Mart committed

the tort of invasion of privacy against her and her children.

Again, because the injury (the invasion itself) took place at a

Wal-Mart located in Virginia, Virginia substantive law applies.

Virginia    law      recognizes   only    a   limited       cause    of   action    for

invasion of privacy when a defendant uses the name or picture of

a plaintiff without authorization.                See Va. Code. Ann. § 8.01-40

(Michie 2009).         Virginia courts have never recognized a common

law tort of invasion of privacy.              See Smith v. Dameron, 1987 WL

488719     at   *3    (Va. Cir. Ct. 1987);         Cohen     v.     Sheehy   Ford    of

Springfield,      Inc.,    1992   WL     884552    at   2    (Va. Cir. Ct. 1992).

Because the courts of Virginia do not recognize the tort as




                                          9
alleged,    we    find     that    the     district    court      did   not   err    in

dismissing this claim.

            Finally,       we    find     that    because    grounds      existed    to

dismiss    Tametta       Bellotte’s       claims     against      Wal-Mart    on     the

merits,    we    need    not    address    whether    Wal-Mart     is   entitled     to

statutory immunity.

            Accordingly, we affirm the district court’s judgments.

We   dispense     with    oral    argument       because    the   facts    and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                              AFFIRMED




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