The Rule 12(d) Standard for Conversion of Rule 12(b)(6) Motion to Rule 56 Motion

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In Vorleamesi v. Esper, 2021 WL 3681163 (D. Md. Aug. 19, 2021) (Grimm, J.), the Court explained and applied the rules governing conversion of a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment when the movant has filed a motion to dismiss or, in the alternative, for summary judgment.

Fed.R.Civ.P. 12(d) states: “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. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” [Emphasis added].

In Vorleamesi, the Court explained the Rule 12(d) reasonable opportunity requirement.  There are two elements: notice of intent to convert the motion; and, a reasonable opportunity for discovery if requested.

In Vorleamesi, the Court wrote that the rules do not prescribe that any particular notice be given before conversion.  Id. at *2.  “Thus, this requirement can be satisfied when a party is aware that material outside the pleadings is before the court.”  Id. (internal quotations and citation omitted).  In sum, the Court wrote that it “does not have an obligation to notify parties of the obvious.”  Id. (internal quotations and citation omitted)(Emphasis added).

It then wrote:

Here, the title of the motion itself, “Motion to Dismiss or, in the Alternative, Motion for Summary Judgment,” makes it obvious that the Court might construe the defendant’s motion as seeking summary judgment, rather than dismissal, and thereby provides sufficient notice to the Plaintiff.

Id. at *2.

Under Vorleamesi, when it is obvious that a motion to dismiss also presents summary judgment issues, the party opposing that motion is on notice that the Court may treat the motion as one under Rule 56 without further notice to the opponent.

Vorleamesi also addresses the right of the party opposing summary judgment to adequate discovery before the Court may rule on the summary judgment motion.  The failure of a party to expressly request and demonstrate the need for discovery waives that right.  The Court wrote:

As the Fourth Circuit has also instructed, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.’” [citation omitted]….  Here, Ms. Vorleamesi has not filed an affidavit or declaration identifying any discovery that she needs in order to fully respond to a summary judgment motion. Rather, she has responded to the Secretary’s alternative theories for dismissing her complaint. Because Ms. Vorleamesi has not identified any material that she requires to adequately respond to the motion, I find that the most appropriate approach is to address the Secretary’s motion as one for summary judgment and I will consider the exhibits provided.

The Court granted defendant’s summary judgment motion.

When a party is faced with a motion to dismiss or, in the alternative, for summary judgment, the opponent is on notice that the motion may be treated as either and should respond accordingly.  If the opponent needs discovery to oppose a summary judgment motion, Vorleamesi sets out the procedure that should be followed.  While Vorleamesi is not an ESI case, ESI is frequently submitted in connection with summary judgment motions.


Sept. 3, 2021, update:

Accord Brother Convenience Store, Inc. v. U.S. Dept. of Agriculture, 2021 WL 3911594, at *8 (D. Md. Sept. 1, 2021)(Russell, J.)(stating same rule; reviewing Rule 56(d) affidavit; holding that the requested discovery materials would not create a genuine dispute of material fact).