                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       July 23, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court



    U N ITED STA TES O F A M ER ICA,
    ex rel. G ILB ER T TR UJILLO ;
    CH AD KILLIAN ; RO BERT L.
    JO SEPH ; A LFO N SO TR UJILLO;
    SAM ULE L. BEENE, as individuals,

                Plaintiffs-Appellants,

    v.                                                 No. 06-4305
                                                (D.C. No. 2:02-CV-162-TC)
    GROUP 4 FA LCK, a foreign                            (D. Utah)
    corporation and the Successor of The
    W ackenhut Corporation, a Florida
    corporation; JOHN CO NNELL; JEFF
    G RU EN D ELL; D EN N IS M U RRAY;
    RICHARD SM ITH , as individuals,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiffs Gilbert Trujillo, Chad Killian, Robert L. Joseph, Alfonso Trujillo,

and Samuel L. Beene appeal from the district court’s orders denying their motions

for partial summary judgment, granting defendant Wackenhut Corporation’s 1

motion to dismiss their Racketeering Influenced and Corrupt Organizations

(RICO) claims, granting W ackenhut’s motion to dismiss Gilbert Trujillo’s

employment discrimination claims for failure to allege exhaustion of

administrative remedies, granting W ackenhut’s motion for summary judgment on

Joseph, Beene, and Alfonso Trujillo’s employment discrimination claims, and

denying plaintiffs’ motion to alter or amend the judgm ent. W e exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                    Background

      The plaintiffs w ere all transit security officers w orking in the Utah Transit

Authority (UTA) public transit system. They were employed by W ackenhut, who

contracted with UTA to provide security services. The parties are familiar w ith

the plaintiffs’ factual allegations and no further discussion of them is necessary.

W e will, however, briefly discuss the somewhat complicated procedural

background of this case.



1
      Defendant-Appellee Group 4 Falck is the successor to W ackenhut
Corporation. During the district court proceedings, however, the district court
used the name W ackenhut to refer to this defendant. Because of this, we will use
W ackenhut’s name in this decision. W ackenhut is also used to collectively cover
the corporate defendant and its employees: John Connell, Jeff Gruendell, Dennis
M urray, and Richard Smith.

                                         -2-
      The plaintiffs’ initial complaint was filed against W ackenhut, UTA, and six

individual defendants: John Connell, David Lamph, John W ittmaak, Jeff

Gruendell, Dennis M urray, and Richard Smith. Before defendants answered the

original complaint, plaintiffs filed a First Amended Complaint alleging six causes

of action: 1) Employment Discrimination; 2) False Claim/W histle Blowing/En

Qui Tam; 3) Conspiracy to O bstruct Justice; 4) State W histle-Blow ing Claims;

5) Intentional Infliction of Emotional Distress; and 6) RICO.

      In January 2004, the district court granted UTA and Lamph’s motion for

summary judgment on all claims. Plaintiffs have not appealed from that decision.

In that same January 2004 order, the district court denied plaintiffs’ motions for

partial summary judgment. The plaintiffs have appealed from this decision. The

district court also granted Wackenhut’s motion to dismiss four of the six causes of

action: a) False Claim/En Qui Tam; b) Conspiracy to Obstruct Justice;

c) Intentional Infliction of Emotional Distress; and d) RICO. The plaintiffs have

only appealed the dismissal of their RICO claim.

      Plaintiffs then sought leave to file a Second Amended Complaint, which

restated their employment discrimination claims, eliminated their state w histle

blowing claim, added another claim under RICO, and eliminated UTA and Lamph

as defendants. In M ay 2004, the court denied plaintiffs’ request to add another

RICO claim, but granted the motion in all other respects. Plaintiffs then filed a

Third Amended Complaint that complied with the district court’s order.

                                         -3-
      In July 2004, the remaining defendants filed a motion to dismiss the

employment discrimination claims of Gilbert Trujillo and Killian for failing to

allege exhaustion of administrative remedies. The district court granted the

motion. On appeal, plaintiffs seek only to challenge the dismissal of Gilbert

Trujillo’s employment discrimination claims.

      In November 2005, defendants moved for summary judgment on the

remaining employment discrimination claims for Beene, Joseph and Alfonso

Trujillo. The district court granted the motion in an order entered in October

2006. Plaintiffs seek review of this decision. The district court’s order resolved

all remaining claims against all of the remaining parties and final judgment was

entered. Plaintiffs then filed a motion to alter or amend the judgment, which was

denied. Plaintiffs challenge this denial on appeal.

                                    Discussion

      W e review de novo the district court’s decisions denying plaintiffs’

motions for partial summary judgment, granting W ackenhut’s motion to dismiss

the RIC O claim, and granting W ackenhut’s motion for summary judgment.

Simms v. Okla. ex. rel. Dep’t of Mental Health & Substance Abuse Servs., 165

F.3d 1321, 1326 (10th Cir. 1999); Sutton v. Utah State Sch. for Deaf & Blind, 173

F.3d 1226, 1236 (10th Cir. 1999). W e review for abuse of discretion the district

court’s denial of plaintiffs’ motion to alter or amend the judgment. Brown v.

Presbyterian Healthcare Servs., 101 F.3d 1324, 1331 (10th Cir. 1996).

                                         -4-
      W e have reviewed the parties’ briefs, the district court’s orders, the record,

and the relevant legal authority. W e conclude that the district court correctly

resolved the bulk of the claims in this case and that no further discussion of those

claims is necessary. Accordingly, with respect to the district court’s decisions

denying plaintiffs’ motions for partial summary judgment, granting W ackenhut’s

motion to dismiss the RICO claim, granting W ackenhut’s motion for summary

judgment on the employment discrimination claims, and denying plaintiffs’

motion to alter or amend the judgment, we affirm the district court for

substantially the same reasons stated in its January 30, 2004 order, its October 18,

2006 order, and its November 8, 2006 order.

      W e are left with the district court’s dismissal of Gilbert Trujillo’s

employment discrimination claims. Normally, we would review such a claim de

novo. In this case, however, plaintiffs did not file a response to W ackenhut’s

motion to dismiss or object to the dismissal at any point during the district court

proceedings. Because of this, we review the district court’s decision for plain

error. See Royal M accabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1181

(10th Cir. 2005); Hidalgo v. Fagen, 206 F.3d 1013, 1020 (10th Cir. 2000); Glenn

v. Cessna Aircraft Co., 32 F.3d 1462, 1464 (10th Cir. 1994). In civil cases, “we

will reverse only if the error is one that seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Hidalgo, 206 F.3d at 1020 (quotation

omitted). “Plain error review presents an extraordinary, nearly insurmountable

                                           -5-
burden.” Royal M accabees, 393 F.3d at 1181 (quotation omitted). Plaintiffs must

show: “(1) an error, (2) that is plain or obvious under existing law, and (3) that

affects substantial rights.” Id.

      In W ackenhut’s motion to dismiss, it asserted that Gilbert Trujillo had

failed to allege in the Third Amended Complaint that he had exhausted his

administrative remedies. Plaintiffs argue on appeal that the record reveals that an

earlier filing in the case by one of the UTA defendants had an attachment that

included copies of M r. Trujillo’s charge of discrimination and right to sue letter

from the EEOC. Because of this, they contend that W ackenhut’s motion was filed

without merit and that the district court erroneously relied on W ackenhut’s

misrepresentation “when the record before the court should have informed it

otherw ise.” Aplt. Br. at 36.

      W hen reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the district

court’s role is to consider the well-pleaded allegations in the complaint, see, e.g.,

Benefield v. M cDowall, 241 F.3d 1267, 1270 (10th Cir. 2001), unless one of the

parties attaches additional materials to the motion or the response, see Prager v.

LaFaver, 180 F.3d 1185, 1188-1189 (10th Cir. 1999). Depending on the nature of

the materials, the court may consider them in resolving the motion to dismiss or

may convert the motion to dismiss into a motion for summary judgment. See id.;

Fed. R. Civ. P. 12(b). In this case, W ackenhut did not attach any additional

materials to its motion to dismiss; it simply argued that the allegations in the

                                          -6-
complaint were insufficient. Plaintiffs did not respond to the motion. The district

court concluded, based on the pleadings before it, that W ackenhut’s motion had

merit and should be granted. The proceedings in the district court continued for

over two years after Gilbert Trujillo’s dismissal. At no point during that time did

the plaintiffs raise this issue in the district court. Finally, plaintiffs filed a motion

to alter or amend the judgment, but did not raise this issue in that motion.

      On appeal, plaintiffs have not pointed to any allegations in the complaint

that would demonstrate that the district court erred in granting the motion to

dismiss. W hile it is true that the record submitted by the plaintiffs on appeal

shows that M r. Trujillo did exhaust his administrative remedies, this evidence was

submitted as part of another defendant’s pleading in an unrelated motion filed six

months earlier. W ithout a responsive pleading by the plaintiffs alerting the

district court to the existence of this evidence, the district court was under no

duty to comb through the prior filings as part of its consideration of the merits of

W ackenhut’s motion to dismiss. Plaintiffs have not shown that the district court

committed error and therefore they have failed to meet the first prong of the plain

error test. Accordingly, we affirm the district court’s decision granting

W ackenhut’s motion to dismiss Gilbert Trujillo’s employment discrimination

claims.




                                           -7-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Deanell Reece Tacha
                                          Chief Circuit Judge




                                -8-
