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Litigation News

Litigation News | 2021

Courts May Not Automatically Grant Unopposed 12(b)(6) Motion

Derek Wallen


  • Another federal appellate court joins a strong majority of circuits requiring district courts to reach the merits of motions to dismiss even if unopposed.
  • Despite the lack of an opposition, the moving party must still “prove entitlement to relief."
  • The district court must also examine the complaint to determine whether it states a valid claim,
Courts May Not Automatically Grant Unopposed 12(b)(6) Motion
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A federal district court may not grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) solely because the plaintiff has not opposed it. Despite the lack of an opposition, the moving party must still “prove entitlement to relief,” and the district court must examine the complaint to determine whether it states a valid claim, the U.S. Court of Appeals for the Seventh Circuit held in Marcure v. Lynn. The decision aligns the Seventh Circuit with a majority of circuit courts that have reached this question. According to ABA Litigation Section leaders, the holding is a sound interpretation of Rule 12 in light of the dispositive importance of motions to dismiss.

No Opposition from Pro Se Litigant

The plaintiff in Marcure was a pro se litigant who sued several police officers under 28 U.S.C. § 1983, which allows private actions for certain civil rights violations. The police officers moved to dismiss under Rule 12(b)(6). As the appellate court explained, “Rule 12(b)(6) provides a mechanism for dismissing a claim if the movant shows that the claimant insufficiently pleaded it.” The plaintiff’s response to the motion was unsigned, in violation of Rule 11(a). When the plaintiff failed to remedy this mistake after notice from the district court, the court struck his response and granted the motion on the sole grounds that it was unopposed.

On appeal, the plaintiff challenged the district court’s interpretations of Rule 11(a) and Rule 12(b)(6). He contended that the court erred in reading Rule 11(a) as mandatory, arguing that it should not have stricken his complaint absent a finding of prejudice to the police officers. As to Rule 12(b)(6), the plaintiff argued that the district court’s holding improperly relieved the police officers of their burden to prove that his complaint was deficient. Despite his failure to oppose the motion, he maintained, the Federal Rules required the district court to consider the motion’s merits. In response, the police officers cited a local rule stating that without an opposition, the court “will presume there is no opposition to the motion and rule without further notice.”

Seventh Circuit Widens the Circuit Split

The appellate court rejected the plaintiff’s arguments concerning Rule 11(a), noting that the rule provides that a court “must strike” an unsigned paper unless the omission is promptly corrected after notice. However, the court found persuasive the plaintiff’s arguments concerning Rule 12(b)(6), which is the subject of a circuit split. Joining most circuits that have considered the question, the Seventh Circuit held that courts must rule on the merits of a Rule 12(b)(6) motion, with or without a filed opposition.

The opinion disapproved two alternative approaches. The U.S. Court of Appeals for the D.C. Circuit permits courts to grant Rule 12(b)(6) motions solely because they are unopposed, but only without prejudice. The Seventh Circuit saw “no reason for this distinction,” which does not appear in the language of the rule. And the U.S. Court of Appeals for the First Circuit permits local rules allowing Rule 12(b)(6) motions to be granted if unopposed if “the result clearly does not offend equity.” The Marcure court viewed this as violating Rule 83(a)(1), which provides that local rules “must be consistent” with the Federal Rules, including Rule 12(b)(6)—which the appellate court interpreted as imposing a burden of proof on the moving party.

Avoiding “Dismissal as a Sanction”

Litigation Section leaders endorse the Seventh Circuit’s reasoning in Marcure. “If a motion to dismiss is granted solely because it is not opposed, then the case is not being dismissed because the complaint has failed to state a claim on which relief can be granted,” explains Ethan T. Tidmore, Birmingham, AL, cochair of the Section’s Pretrial Practice & Discovery Committee. “Rather, it is effectively being dismissed as a sanction for failure to comply with a local rule,” which is inconsistent with Rule 12(b)(6), Tidmore states.

“The appellant was pro se, so the court, although not obligated to do so, was likely going to find a way to not punish him for his failure,” adds James D. Abrams, Columbus, OH, cochair of the Section’s Commercial & Business Litigation Committee.” But “the requirement that a court must at least look at the pleading even in the absence of a brief makes good sense,” Abrams notes. “Otherwise the movant doesn’t have to demonstrate that there are no possibilities that the non-moving party can prove her case. It’s more work for the court but it is not a bad solution,” he opines.

Although the plaintiff in Marcure was pro se, “I don’t see why a different rule should apply” to a represented party, offers Paula M. Bagger, Boston, MA, cochair of the Section’s Commercial & Business Litigation Committee. Otherwise “you’re punishing the client, and yes, the client has a malpractice case, but that’s not going to be as good a result” as preserving his or her claims, Bagger states. “In the absence of some sign that somebody’s doing something in bad faith,” observes Bagger, “this doesn’t seem like a situation where you should punish even a commercial client for the lawyer making a mistake.”