Concept
Conversion to Summary Judgment
Motions addressed to the face of the pleadings
Conversion to Summary Judgment
A motion built to test the pleadings changes character once evidence enters the record, and Rule 12(d) says when. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion “must be treated as one for summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”1
The rule exists because the two motions ask different questions. A pleading challenge asks whether the complaint, read as written, states a claim. Summary judgment asks whether any genuine dispute of material fact exists, and the opposing party cannot survive it on the pleadings alone unless the movant fails to carry its initial burden.2 A party who attaches affidavits to a pleading challenge is asking the second question under the first label. That party “clearly intends to test not only whether the allegations are sufficient on their face to state a claim, but also whether there is any factual basis for those allegations.”3 Rule 12(d) lets the court honor that choice on two conditions: the motion takes its true name, and every party gets a chance to supply proof.
Conversion therefore differs from the ordinary remedy for a thin complaint. A missing allegation may be a pleading oversight that amendment can cure, so leave to amend is routine when a complaint merely lacks an allegation for an element of the claim.4 A converted motion is not about wording at all; it asks whether the facts exist.
Three questions follow, and the subsections below take them in order: what sets conversion in motion, what the nonmovant is owed once it happens, and which motions the rule leaves alone.
What Triggers Conversion
Conversion needs two events, and Rule 12(d) states them in sequence: matters outside the pleadings must be “presented to” the court and “not excluded by” it.5 Presentation alone changes nothing. A defendant who staples an affidavit to a Rule 12(b)(6) motion has converted nothing, because the motion stays a pleading motion until the court lets the affidavit figure in its ruling. Once the court does, the word “must” takes over, and the judge has no further choice about the label.
The court’s power to exclude keeps either side from forcing the issue. If filing were enough, a defendant could turn a pleading motion into an evidentiary contest simply by attaching papers, whatever the judge preferred. Exclusion lets the judge refuse and decide the motion as it was framed.
The rule says only that matters are “presented”; it does not say by whom. In practice the movant supplies them. A party who includes affidavits or other materials with a pleading challenge is trying to refute the existence of a genuine factual dispute, and the trial judge has discretion to treat the challenge as a summary judgment motion.6 That discretion typically is exercised in favor of converting, unless the responding party was so taken by surprise as to be prejudiced.7
Conversion is mandatory once the court accepts the material because the two motions assume different things. A pleading motion takes the allegations as true, which is fair only while no evidence is in play, and a court that leaned on affidavits while keeping that assumption would be resolving disputed facts on a paper record. Since its 1948 amendment, Rule 12 has routed such motions to Rule 56, a practice followed in innumerable cases. The parties can then put the merits before the court and see whether any genuine issue requires a trial, instead of being limited to an attack on the paper allegations.8
What converts is evidentiary matter. A court deciding such a motion is not confined to the pleadings and the motion, and may consider evidentiary matter “presented by affidavit or otherwise.”9 Evidence matters because summary judgment runs on it. If the movant’s papers show no genuine dispute, the burden shifts to the opposing party to introduce outside evidence rebutting that showing, and without such evidence the movant’s evidence will be taken as true.10
A Hawaii appellate court applying its counterpart to Rule 12(c) marks the other side of the line. It explained that a motion for judgment on the pleadings serves much the same purpose as a motion for failure to state a claim, and “only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain.” An order granting the motion must therefore rest solely on the contents of the pleadings, and “[a] claim that is evidentiary in nature and requires findings of fact to resolve cannot properly be disposed of” under that rule.11 The Hawaii rule does not bind a federal court, but its logic fits Rule 12(d): fact-finding belongs to a proceeding that has evidence in it.
It follows that a lawyer’s factual assertions in a brief or at oral argument cannot do the work of an affidavit. They are argument, not evidentiary matter, so a movant who offers only those has presented nothing that can convert the motion, and the court must set them aside and decide on the pleadings alone. Students often assume that anything beyond the complaint converts the motion. Only evidentiary matter that the court accepts does.
The same affidavit produces the opposite result once the judge relies on it. A court that cites the dispatcher’s sworn account in its reasoning has accepted the outside matter, so the motion is now one for summary judgment, and Okafor must be given a reasonable opportunity to present all the pertinent material in response.12 What protects Okafor then is the subject of the next subsection.
Notice and Opportunity to Respond
The second sentence of Rule 12(d) is the price of conversion. Once a Rule 12(b)(6) or 12(c) motion is treated as one for summary judgment, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”14 The first sentence tells the court what happens to the motion; this one tells the court what it owes before ruling on it. The party most exposed is the nonmovant, who has usually written a response aimed at the complaint and nothing more.
The protection exists because the two motions demand different things of the nonmovant. A plaintiff facing a Rule 12(b)(6) motion has no reason to collect evidence, since the question is whether the complaint states a claim. Summary judgment reverses that position. The opposing party cannot survive it on the pleadings alone, and if the movant’s papers show no genuine dispute, the burden shifts to the opponent to introduce outside evidence. If none arrives, the movant’s evidence is taken as true and in most cases summary judgment follows.15 A court that switched standards without warning could therefore hand the plaintiff a loss on the merits for failing to produce evidence that nothing had suggested was due. The opportunity to respond closes that gap by letting the nonmovant build the record the new standard requires.
The court’s most practical tool for supplying the opportunity is the calendar. A court that has accepted outside material can delay the hearing on the converted motion until the respondent has had time to prepare, which mitigates any prejudice from the change.16 That power helps explain why courts typically favor conversion unless the respondent was so surprised as to be prejudiced. A judge who sees surprise can often cure it by giving time instead of refusing conversion.
The failure case is the ruling that arrives without warning. In Burick v. Edward Rose & Sons, the Seventh Circuit held that the trial court erred in converting a Rule 12(b)(6) motion to dismiss into a summary judgment motion without giving the plaintiff notice of the conversion and an opportunity to respond.17 That is exactly the harm the second sentence of Rule 12(d) targets: a court decides the merits against a party who never knew the merits were in play.
The circuits do not measure a “reasonable opportunity” in quite the same way. The First Circuit, in C.B. Trucking, Inc. v. Waste Management, Inc., held that express notice of conversion is unnecessary if the surrounding circumstances give reasonable notice and the parties have an opportunity to present all pertinent materials.18 The Seventh Circuit’s approach in Burick looks for notice of the conversion itself, while the First Circuit asks whether the circumstances gave the nonmovant a fair chance to respond. Both courts guard against the same evil, surprise without a chance to respond. They differ only on whether a formal announcement is the sole way to deliver the opportunity or one way among several.
Take away both the announcement and the chance to file, so that the court converts silently and rules against the plaintiff on evidence the plaintiff never had an occasion to answer, and the ruling is error under either approach. Even the more forgiving circuit requires that the parties have an opportunity to present all pertinent materials.19 Students often treat the circuit disagreement as though it decided the problem. A better answer states the common ground, notes that courts vary on whether circumstances can stand in for an express announcement, and then applies the facts to ask whether the nonmovant had notice and a realistic chance to put evidence before the court.
Limits on Conversion
Rule 12(d) reaches only motions under Rule 12(b)(6) and 12(c); its conversion command names no other motion.21 Commentary on the rule confirms the reach: conversion applies only to those two motions.22 A student who treats every Rule 12 motion as convertible will misread what an attached affidavit does to the motions that run on evidence from the start.
The line follows the question each motion asks. Rules 12(b)(6) and 12(c) test the sufficiency of the pleaded claim, so evidence turns their question into the one Rule 56 asks, and Rule 12(d) responds by relabeling the motion and giving every party a chance to put in its own proof. The other Rule 12(b) defenses that a party may raise by motion are lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. These are threshold procedural defenses that require no effort on the merits. A court can consider materials outside the complaint in ruling on them, and none of these motions, with or without such materials, converts into a summary judgment motion.23 That fits the long-settled rule that outside matter is proper when jurisdiction is challenged or a dilatory defense is raised.24
The same kind of attachment has a different effect on a motion that goes to the claim itself.
The affidavit in the first scene answers the question the motion asks, which is how service happened. The logs in the second scene answer a question that a Rule 12(b)(6) motion does not ask, which is whether the allegations are true, and that mismatch is what triggers the rule.
One motion falls in a gray area because the rule’s text does not mention it. Rule 12(f) lets a plaintiff move to strike an insufficient defense, a question close to the one Rule 12(b)(6) asks about a claim, yet Rule 12(d) is silent about it. Courts have disagreed on whether a motion to strike an insufficient defense may be transformed into a summary judgment motion.26 A careful answer states that the rule’s text covers only Rule 12(b)(6) and 12(c), reports the disagreement, and avoids asserting a single national rule for motions to strike.
Conversion carries a practical consequence under Rule 41. A plaintiff may dismiss without a court order by filing a notice of dismissal before the opposing party serves an answer or a motion for summary judgment, or by stipulation of all the parties.27 A motion to dismiss is neither an answer nor a summary judgment motion, so the notice route stays open while the motion remains one. A motion converted under Rule 12(d) is different, because it becomes a summary judgment motion that cuts off the right to dismiss voluntarily.28 Attaching outside materials only gives the court the opportunity to convert. In the case the source examines, the defendants attached materials to a Rule 12(b)(6) motion, yet the case had not reached the point of no return, because the defendants had not characterized the motion as one for summary judgment under Rule 56 and the court had not accepted the materials.29
A plaintiff who has lost the notice route is not stuck. Rule 41(a)(2) permits dismissal “at the plaintiff’s request . . . by court order,” but the decision is then discretionary, and the judge may grant it conditionally, “on terms that the court considers proper.”30 Motions on service, venue, and similar threshold defenses never close the notice route by conversion, even with affidavits attached. Conversion thus marks the stage at which the defendant has put the merits in play, and that is the stage at which the plaintiff’s easy exit ends.