UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEVIN BRIAN FORNSHILL,
Plaintiff-Appellant,

v.

CHRISTOPHER W. RUDDY; JAMES DALE
                                                                   No. 95-2490
DAVIDSON; AGORA, INCORPORATED,
d/b/a Strategic Investment, LLC;
WESTERN CENTER FOR JOURNALISM,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-94-2723-AW)

Argued: May 10, 1996

Decided: June 11, 1996

Before MICHAEL, Circuit Judge, NORTON, United States
District Judge for the District of South Carolina,
sitting by designation, and DOUMAR,
Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Philip Matthew Stinson, Sr., Philadelphia, Pennsylvania,
for Appellant. Michael Edward Geltner, GELTNER & ASSO-
CIATES, P.C., Washington, D.C., for Appellees. ON BRIEF: James
McCollum, Jr., JAMES MCCOLLUM & ASSOCIATES, P.C., Col-
lege Park, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Kevin Fornshill appeals from the district court's entry of summary
judgment in favor of defendants in this defamation action. Fornshill
argues that the district court erred in converting defendants' Fed. R.
Civ. P. 12(b)(6) motion into a motion for summary judgment and that
the court erred in holding that defendants' publications were not "of
and concerning" him. Finding no error, we affirm.

I.

Fornshill's defamation claim stems from a report, written by defen-
dant Christopher Ruddy, relating to the suicide death of Deputy White
House Counsel Vincent Foster. Fornshill was one of 430 United
States Park Police assigned to the Washington, D.C., metropolitan
area. On July 20, 1993, Fornshill was dispatched to Fort Marcy Park
in McLean, Virginia, where Foster's body was discovered. Fornshill
remained at the scene for approximately ten minutes.

On January 19, 1994, Attorney General Janet Reno appointed Rob-
ert Fiske to investigate matters relating to Foster's death. On June 30,
1994, Fiske issued a report which concluded, among other things, that
Foster committed suicide, that Fornshill discovered Foster's body,
and that Foster died at the location where Fornshill discovered the
body.

On July 19, 1994, Ruddy, a former New York Post reporter, pub-
lished a document entitled A Special Report on the Fiske Investigation

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of the Death of Vincent W. Foster, Jr.. The report is largely a critique
of Fiske's investigation and report. Ruddy's report in part alleges that
the park police participated in a cover-up by changing, in their official
reports, the spot where Foster's body was found. Ruddy's report also
alleges that "someone re-created a second crime scene by the second
cannon -- complete with blood stain."

Ruddy's report is divided into five sections. The first section, enti-
tled "The Cover-Up," is the only section in which Fornshill's name
appears. Ruddy begins this section by calling the events "one of the
biggest cover-ups in American history." He says that at least twenty
officials have knowledge that could "incriminate many of the federal
officials involved in investigating the death of Foster." Ruddy also
says that "[t]here is powerful evidence that these officials obstructed
justice by" issuing false reports, lying to the press and public, and
intentionally misleading Fiske, his staff, and the FBI. Ruddy contin-
ues, "Revelation of this cover-up would also seriously impugn the
credibility and legitimacy of the U.S. Park Police, whose forensic and
physical evidence constituted a major part of the special prosecutor's
report on the cause of Foster's death."

In the remainder of "The Cover-Up" section, Ruddy compares
Fiske's report with the "unrehearsed" account of events he received
from a paramedic who was on duty the night of Foster's death. Ruddy
mentions Fornshill's name five times in describing how Fiske
reported Fornshill's discovery of the body. Ruddy mentions no other
United States Park Police officer by name in this discussion. Fornshill
is not mentioned by name in the remaining sections of the report.

Defendant Agora, Inc. publishes a newsletter entitled Strategic
Investment. Agora printed excerpts from Ruddy's report in the August
17, 1994, issue of the newsletter. The article introducing the excerpts
was written by defendant James Davidson. Fornshill's name does not
appear in the newsletter. On August 28, 1994, defendant Western
Journalism Center placed a full-page advertisement in the New York
Times calling for an independent investigation of Foster's death and
offering discount coupons for Ruddy's report. The advertisement did
not mention Fornshill's name.

On August 31, 1994, Fornshill filed a complaint in Maryland state
court, and the defendants removed the action to the United States Dis-

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trict Court for the District of Maryland. Fornshill's complaint alleged
that Ruddy defamed him in his report by stating that Fornshill: (1)
lied about the location of Foster's body, (2) participated in a cover-up
by changing the location of Foster's body, (3) obstructed justice by
lying to the press and public and by committing a number of federal
offenses, including intentionally misleading Fiske, his staff, and the
FBI, and (4) did not find the body. The complaint alleged that the
remaining defendants were liable because they republished Ruddy's
report.

On November 4, 1994, defendants moved to dismiss Fornshill's
complaint pursuant to Rule 12(b)(6). The court conducted a hearing
on July 14, 1995. Because the parties (including Fornshill) had sub-
mitted materials outside of the pleadings, the judge treated the Rule
12(b)(6) motion as a motion for summary judgment. No party
objected.

On July 24, 1995, the district court ruled that the publications were
not "of and concerning" Fornshill and granted summary judgment in
favor of the defendants. On the same day, the judge received Forn-
shill's motion to file supplemental materials. The judge denied the
motion as untimely. This appeal followed.

II.

Fornshill first argues that the district court erred by treating defen-
dants' Rule 12(b)(6) motion as a Rule 56 motion for summary judg-
ment. He argues that before converting defendants' Rule 12(b)(6)
motion into one for summary judgment, the court failed to give him
notice and a reasonable opportunity to present all material pertinent
to the motion for summary judgment. We do not believe that the dis-
trict court erred.

Rule 12(b) allows a district court to convert a motion to dismiss for
failure to state a claim into a motion for summary judgment so long
as the parties have a "reasonable opportunity" to present materials
pertinent to the motion for summary judgment. Herbert v. Saffel, 877
F.2d 267, 270 (4th Cir. 1989); see Fed. R. Civ. P. 12(b). In this case,
Fornshill unquestionably had such an opportunity. Attached to defen-
dants' Rule 12(b)(6) motion were several declarations and other mate-

                    4
rials outside the pleadings, putting Fornshill's counsel on notice of
possible conversion. See Wheeler v. Hurdman, 825 F.2d 257, 260
(10th Cir.), cert. denied, 484 U.S. 986 (1987). Fornshill's counsel
apparently understood this possibility because in his memorandum in
opposition to defendants' Rule 12(b)(6) motion, he articulated the
standard for summary judgment and stated that there existed a genu-
ine dispute of material fact. Attached to his opposition to the motion
was Fornshill's affidavit and a transcript of Fornshill's sworn testi-
mony before the United States Senate Banking Committee. At the
hearing on defendants' motion (over seven months later), Fornshill's
counsel submitted to the court additional materials outside the plead-
ings. Finally, the district judge announced at the hearing that he
would treat the motion as one for summary judgment, and Fornshill's
counsel did not object. Under these circumstances, we conclude that
Fornshill should have expected summary judgment treatment and that
he had ample opportunity to submit materials pertinent to a motion
for summary judgment. See Maruho Co. v. Miles, Inc., 13 F.3d 6, 8
(1st Cir. 1993).*

III.

With respect to the substance of his defamation claim, Fornshill
argues that the district court erred for two reasons. First, he says that
Ruddy's report is "of and concerning" him (Fornshill) because he is
one of only three park police officers specifically named in the report
and one of only two park police who were at the Foster death scene.
See Ewell v. Boutwell, 121 S.E. 912, 914-15 (Va. 1924). Second,
Fornshill says that a jury must decide the issue of whether a publica-
tion is "of and concerning" the plaintiff. See The Gazette, Inc. v.
Harris, 325 S.E.2d 713, 739 (Va. 1985).
_________________________________________________________________
*We likewise reject Fornshill's argument that the district court abused
its discretion by refusing to consider supplemental materials submitted
six days after the hearing. A party must "show cause" and demonstrate
"excusable neglect" for its failure to timely file additional materials. See
Fed. R. Civ. P. 6(d); Lujan v. National Wildlife Federation, 497 U.S.
871, 895-96 (1990). Since Fornshill's counsel was on notice that the
motion might be converted to one for summary judgment, Fornshill can-
not show cause for the failure to timely file the materials.

                    5
We think the district court correctly concluded that Ruddy's report
was essentially a criticism of Fiske's report and the government's
investigation of Foster's death. Ruddy's report criticizes "many of the
federal officials involved" and alleges that the park police changed
the location of the body "in their official reports." Fornshill was only
on the scene for ten minutes, was neither an investigator nor a detec-
tive, and never assisted in the preparation of any park police report.
Thus, we agree that the publication was not "of and concerning" Forn-
shill. There is no issue for a jury to decide, and we affirm the entry
of summary judgment in favor of all defendants for the reasons stated
in the district court's thorough opinion. See Fornshill v. Ruddy, 891
F. Supp. 1062 (D. Md. 1995).

IV.

The judgment of the district court is affirmed.

AFFIRMED

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