UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________

No. 00-20800 Summary Calendar ___________________

CHARLES ROGERS, ET UX, Individually, and as Next Friends of James Rogers, a minor; JAMES ROGERS,

Plaintiffs-Appellants,

versus

HYATT INTERNATIONAL, INC.; HYATT CORPORATION; MONTGOMERY KONE, INC.; HYATT INTERNATIONAL- LATIN AMERICA, LTD.,

Defendants-Appellees. ____________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-99-CV-4215) ____________________________________________________________ March 6, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Appellants contest the FED. R. CIV. P. 12(b)(6) dismissal of

their claims against Hyatt International, Inc. We AFFIRM.

I.

Appellants originally filed this action in Texas state court

against Hyatt International, Inc., Hyatt Corporation, and

Montgomery Kone, Inc., alleging that James Rogers, while a guest at

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the Hyatt Regency Guatemala, was injured in an elevator. They

presented claims for negligence, gross negligence, and violation of

the Texas Deceptive Trade Practices Act.

After this action was removed to federal court, Hyatt

International filed a “Motion to Dismiss for Lack of Personal

Jurisdiction, Motion to Dismiss for Forum Non Conveniens, and

Original Answer”. (Emphasis added.) One defense raised in its

answer asserted, pursuant to Rule 12(b)(6), that Appellants’ second

amended complaint failed to state a claim upon which relief could

be granted.

Appellants filed a third amended complaint, adding Hyatt

International-Latin America, Ltd. (Hyatt-Latin America) as a

defendant. This followed a scheduling conference at which Hyatt

International advised Appellants that Hyatt-Latin America is the

proper defendant. The third amended complaint claimed: James

Rogers, while a registered guest at the Hyatt Regency Guatemala,

was injured when an elevator in which he was a passenger dropped

unexpectedly after the doors opened; “[t]he actions of Defendants

and their subsequent failure to remedy violate the ... Texas

Deceptive Trade Practices Act”; “[t]he actions of Defendants were

negligent and proximately caused Plaintiffs to suffer personal

injuries”; and “[t]he actions of Defendants were grossly

negligent”.

2 Thereafter, Appellants responded to Hyatt International’s

motions to dismiss for lack of personal jurisdiction and for forum

non conveniens; the response, however, did not address Hyatt

International’s Rule 12(b)(6) — failure to state a claim — defense

in its answer.

In answer to the third amended complaint, Hyatt International

again raised a Rule 12(b)(6) defense. Thereafter, Hyatt

International filed a reply to Appellants’ response in opposition

to its motions to dismiss, attaching the deposition of its

corporate representative, describing the corporate structure of

Hyatt International and Hyatt-Latin America.

Less than one week later, the district court dismissed

Appellants’ claims: against Hyatt-Latin America, based on forum

non conveniens; and against Hyatt International and Hyatt

Corporation, for failure to state a claim upon which relief could

be granted. Appellants’ claims against Montgomery Kone were

dismissed without prejudice. The district court concluded that the

allegations in the third amended complaint failed to support a

claim that would entitle Appellants to relief against Hyatt

International, because the alleged facts demonstrated that Rogers’

injuries and all events leading up to those injuries, including the

servicing of the elevator, occurred in Guatemala, and that Hyatt-

Latin America was a wholly-owned, independent corporation, having

no connection with Hyatt International.

3 Pursuant to Rule 59, Appellants moved for relief from the

judgment, contending that the dismissal of Hyatt International was

improper because Hyatt-Latin America “appear[ed] to be” the alter

ego of Hyatt International. In support, Appellants attached the

deposition of Hyatt International’s corporate representative

(previously submitted, as noted, to the district court with Hyatt

International’s reply in support of its motions to dismiss) and a

letter from Hyatt International’s president to its insurer, asking

it to respond on behalf of Hyatt International and Hyatt-Latin

America to Appellants’ pre-suit demand. Appellants’ motion was

denied.

II.

Appellants challenge only the dismissal of Hyatt

International, contending: their complaint stated valid claims;

and the evidence submitted in support of their Rule 59 motion

raises factual issues regarding Hyatt International’s involvement

in the management and operation of Hyatt-Latin America (as noted,

dismissed on forum non conveniens grounds) and the Hyatt Regency

Guatemala.

“We review the district court’s conclusion that the plaintiff

failed to state a claim on which relief may be granted de novo”.

Jones v. Greninger,

(5th Cir. 1999). Dismissal

is proper “when it is clear that the plaintiff can prove no set of

4 facts in support of his claim that would entitle him to relief”.

(emphasis added).

Of course, if “matters outside the pleading are presented to

and not excluded by the court” in support of a Rule 12(b)(6)

motion, it “shall be treated as one for summary judgment”. FED. R.

CIV. P. 12(b). “[W]e review the grant of such a motion just as we

would any other grant of summary judgment — that is, we review the

grant of summary judgment de novo and apply the same legal

standards as the district court”. Songbyrd, Inc. v. Bearsville

Records, Inc.,

(5th Cir. 1997). Summary judgment

is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law”. FED. R. CIV. P. 56(c).

It is not clear from the district court’s opinion whether, in

dismissing Hyatt International, it considered the deposition of its

corporate representative. Cf. Collins v. Morgan Stanley Dean

Witter,

(5th Cir. 2000) (noting approvingly

that other circuits have considered documents attached to motions

to dismiss as “part of the pleadings if they are referred to in the

plaintiff’s complaint and are central to her claim” (emphasis

added; internal quotation marks and citation omitted). The

district court’s opinion cites the standards for considering a Rule

5 12(b)(6) motion and then states: “[a]fter examining pleadings, the

Court is of the opinion that Hyatt International and Hyatt

Corporation are not true parties to the instant suit”. It also

states, however: “Hyatt Latin America is a wholly-owned,

independent corporation having no connection with Hyatt

International or Hyatt Corporation”. (Emphasis added.) The latter

statement is not supported by any allegation in the third amended

complaint, which contains no factual allegations regarding

ownership or management of the Hyatt Regency Guatemala, or control

over the elevator in issue.

In any event, we can affirm the judgment on any ground

supported by the record. E.g., McGruder v. Will,

(5th Cir. 2000). Appellants do not maintain they either received

inadequate notice that the district court would consider matters

outside the pleadings or were denied an opportunity to present

evidence in opposition. See FED. R. CIV. P. 12(b) (when motion to

dismiss treated as one for summary judgment because matters outside

pleading are presented to, and not excluded by, the court, “all

parties shall be given reasonable opportunity to present all

material made pertinent to such a motion by Rule 56”). Indeed,

Appellants relied in district court on the deposition of Hyatt

International’s corporate representative, which they submitted in

support of their Rule 59 motion, in support of their contention

6 that dismissal was improper because Hyatt-Latin America is the

alter ego of Hyatt International.

The district court did not err by dismissing Appellants’

claims against Hyatt International, because Appellants did not

allege, and there is no evidence, that Hyatt International owned,

managed, operated, or controlled the management or operation of the

Hyatt Regency Guatemala. Appellants’ reliance on the letter from

Hyatt International to its insurer, asking it to respond on behalf

of Hyatt International and Hyatt-Latin America to Appellants’ pre-

suit demand, is not an admission that Hyatt International is a

proper party to this action. And, the deposition of Hyatt

International’s corporate representative does not support

Appellants’ assertion that Hyatt-Latin America is the alter ego of

Hyatt International. She testified: Hyatt International is a

holding company, headquartered in Chicago; it holds stock in other

companies which manage hotels outside the United States, Canada,

and the Carribean; it owns 100% of the stock of Hyatt-Latin

America, which was incorporated in the Cayman Islands; it did not

develop the Hyatt Regency Guatemala; Hyatt-Latin America was hired

by the owner, a Guatemalan company, to manage the hotel; Hyatt

International drafted the management agreement between the

Guatemalan hotel owner and Hyatt-Latin America; one of Hyatt

International’s directors serves on the board of directors for

Hyatt Latin-America; three of the six directors of Hyatt-Latin

7 America are officers of Hyatt International; and Hyatt

International board meetings are held in Chicago, while Hyatt-Latin

America’s are held in the Cayman Islands.

In sum, Appellants neither pleaded, nor does the evidence

support, any duty owed to Appellants by Hyatt International.

Accordingly, the district court did not err by dismissing Hyatt

International.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

8