                                                                [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                     FILED
                                                              U.S. COURT OF APPEALS
                                 No. 08-10160                   ELEVENTH CIRCUIT
                                                                    JULY 17, 2008
                             Non-Argument Calendar
                                                                 THOMAS K. KAHN
                           ________________________
                                                                      CLERK

                       D.C. Docket No. 07-01491-CV-TCB-1

RAYMOND CHONG,
                                                            Plaintiff-Appellant,
                                        versus

HEALTHTRONICS, INC.,
d.b.a. Healthtronics Service Center, Inc.,

                                                            Defendant-Appellee.
                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                   (July 17, 2008)

Before DUBINA, PRYOR and COX, Circuit Judges.

PER CURIAM:

      The Plaintiff, Raymond Chong, appeals following the district court’s dismissal

of his action against Healthtronics, Inc., the Defendant, for failure to state a claim.
The district court granted the Defendant’s Rule 12(b)(6) motion, dismissing all of the

Plaintiff’s claims.

      Attached to the Defendant’s Rule 12(b)(6) motion were two affidavits and

several documents. The Plaintiff objected to the consideration of these documents

as outside the pleadings, contending that consideration of matters outside the

pleadings required that the motion be treated as a Rule 56 motion for summary

judgment, which would require the court to permit the Plaintiff to submit evidence

in support of his claims. The district court rejected this argument. We consider each

of the Plaintiff’s claims against this background.

      It is clear that the Defendant’s 12(b)(6) motion relied upon documents

submitted by it to support dismissal of the Plaintiff’s breach of contract and quantum

meruit claims. It is also clear that the district court’s dismissal of these claims relied

upon these documents. We disagree with the district court’s conclusion that our

precedent supports consideration of these documents. Pretermitting consideration of

the authenticity of these documents, nothing in the complaint supports the district

court’s conclusion that these documents were central to the Plaintiff’s contract claims.

Similarly, nothing in the complaint supports the conclusion relative to the quantum

meruit claim that the Plaintiff received a $72,500 annual salary and benefits and was

“reasonably compensated for the services he rendered” (R.2-47 at 7). The district

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court erred in considering matters beyond the face of the complaint without

complying with Rule 56. We have held:

      Whenever a judge considers matters outside the pleadings in a 12(b)(6)
      motion, that motion is thereby converted into a Rule 56 Summary
      Judgment motion. When that conversion occurs, the district court must
      comply with the requirements of Rule 56. The district court is required
      to notify the parties that the motion has been converted, and give the
      parties 10 days in which to supplement the record. Herron v. Beck, 693
      F.2d 125, 126 (11th Cir.1982).

Trustmark Ins. Co. v. ESLA, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002) (internal

citations omitted).

      Neither the Defendant’s brief in the district court nor its brief on this appeal

include a principled argument that the Plaintiff’s complaint fails on its face to state

a breach of contract claim or a quantum merit claim. And, the district court did not

so hold. So, we decline to address the issue here. We vacate the denial of these

claims and remand to the district court with instructions to comply with Rule 56.

      The district court dismissed the Plaintiff’s fraud claim on the grounds that it

was duplicative of his breach of contract claim and failed to satisfy the heightened

pleading standard of Fed. R. Civ. P. 9(b). The court dismissed the Plaintiff’s New

York labor law claim on the ground that New York courts have held that bonus

payments made under a profit-sharing scheme are excluded from the definition of

“wages” under the applicable statute.

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      The Plaintiff does not argue on appeal that the district court’s legal analysis

with respect to its dismissal of his fraud claim for failure to comply with Rule 9(b)

was erroneous nor does he argue that the court’s legal analysis of his New York labor

law claim was erroneous. Instead, he contends generally that the entirety of the

district court’s dismissal of his claims should be reversed, because it improperly

relied upon evidence not contained on the face of his complaint. We disagree. The

district court dismissed the Plaintiff’s fraud and New York labor law claims on

defects appearing from the face of the complaint. We find no reversible error in the

dismissal of these two claims.

      For the foregoing reasons, we vacate the district court’s dismissal of the

Plaintiff’s breach of contract and quantum meruit claims, and remand with

instructions to the district court to comply with Rule 56. We affirm the district

court’s dismissal of the Plaintiff’s fraud and New York labor law claims.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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