Conversion From Rule 12 Motions

Conversion From Rule 12 Motions

A motion that starts as an attack on the pleadings can become a summary judgment motion partway through, and Rule 12(d) controls the change. A party moves under Rule 12(b)(6) for failure to state a claim, or under Rule 12(c) for judgment on the pleadings, and matters outside the pleadings are presented to the court. If the court does not exclude them, the motion must be treated as one for summary judgment under Rule 56, and all parties must be given a reasonable opportunity to present all the material pertinent to the motion.¹

The rule gives two commands. The first makes conversion mandatory once outside matters come in and stay in. The second protects every party's chance to answer the motion in its new form.

Outside matter changes the motion because a pleading motion and a summary judgment motion ask different questions. On a pure Rule 12(b)(6) motion, the court takes the well-pleaded factual allegations as true and asks whether they state a claim.² It does not decide factual disputes.³ A movant who attaches an affidavit swearing that the plaintiff's allegation is false asks something more: whether any factual basis exists for the allegation. A motion that tests both the sufficiency of the allegations and their factual basis is one the court may treat as a motion for summary judgment.⁴ The court cannot assume the allegation is true and also weigh an affidavit that denies it, because the affidavit attacks the very premise of the first inquiry. Summary judgment is the procedure built for the second question, since it looks past the pleadings to the evidence and asks whether a genuine factual dispute exists.

The second command follows from the first. A plaintiff facing a pure pleading motion has no reason to bring evidence, because the allegations already count as true. Once the movant files sworn denials, a plaintiff who prepared only to defend the complaint would meet a one-sided record, and the reasonable-opportunity requirement prevents that surprise. The stakes are real. In federal court, a party opposing summary judgment cannot survive on the pleadings alone unless the movant failed to show the absence of a genuine dispute of material fact. If the movant's papers do show that, the burden shifts to the opponent to introduce outside evidence. An opponent who offers none leaves the movant's evidence to be taken as true, and in most cases summary judgment follows.⁵

The treatise describes the trial judge as having discretion to treat a pleading challenge as a summary judgment motion when the movant adds affidavits or other materials to refute the existence of a genuine dispute. Judges typically exercise that discretion in favor of conversion, unless the responding party was so surprised as to be prejudiced.⁶ The text of Rule 12(d) locates the court's choice at the moment of exclusion. If the court excludes the outside matters, the motion remains a pleading motion, and the court reads the complaint, takes its well-pleaded allegations as true, and asks only whether they state a claim.⁷ If the court does not exclude them, conversion follows. Surprise has a simple cure: the court can delay the hearing until the respondent has had time to prepare.⁸

A Rule 12(c) motion travels the same path. It is made after the pleadings close, but not so late as to delay trial, and it is treated as a motion for summary judgment if outside matters accompany it.⁹

Conversion matters because it changes the standard the court applies. A converted motion is decided under Rule 56: the court may grant it if the material facts are undisputed and the movant is entitled to judgment as a matter of law on those facts. A pure Rule 12(b)(6) motion asks only whether the allegations, taken as true, state a claim. A nonmovant who needs more time or discovery to answer the converted motion can seek relief of the kind discussed earlier in this chapter for unavailable facts.

Students tend to make one of two errors. The first is to say that attaching an affidavit automatically converts the motion, when the rule asks whether the court excluded the material. The second is to stop at conversion, even though a court that treats the motion as one for summary judgment without giving every party a reasonable opportunity to present pertinent material has done only half of what Rule 12(d) requires.