How-To: Respond to a Rule 12(b)(6) Motion to Dismiss

"Rule 12(b) is mandatory; consequently, if documents outside of the pleadings are placed before a district court, and not excluded, the court must convert the defendant's 12(b)(6) motion to one for summary judgment and afford the plaintiff an opportunity to submit additional evidentiary material of his or her own."

"It is clearly the law in this circuit that whenever a district judge converts a 12(b)(6) motion to dismiss into one for summary judgment by considering matters outside the pleadings the judge must give all parties ten-days notice that he is so converting the motion. Herron v. Beck, 693 F.2d 125, 126 (11th Cir. 1982); Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979)."

"We do not intend to deviate from the long-standing rule in this circuit that notice must be given and that failure to do so will result in reversal and a remand."

1. Four Corners of the Complaint (complaint + exhibits + judicially noticed material)

   "The scope of review must be limited to the four corners of the complaint” and attached exhibits. St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002).”
   
   “In considering the motion, courts should limit their “consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citation omitted)."

   • Public Record can also be accepted:

     “Accordingly, the court must first determine whether the additional materials are "outside the pleadings." The Sixth Circuit takes "a liberal view of what matters fall within the pleadings for purposes of Rule 12(b)(6)," Armengau v. Cline, 7 F. App'x 336, 344 (6th Cir. 2001), and therefore certain documents may properly be considered under Rule 12(b)(6) without converting the motion to one for summary judgment. "If referred to in a complaint and central to the claim, documents attached to a motion to dismiss form part of the pleadings. At this preliminary stage in litigation, courts may also consider public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies." Id. (inner citation omitted); accord, e.g., Bassett, 528 F.3d at 430."

2. Short & Plain Statement (Rule 8(a)(2) Fed. R. Civ. P.)

   “The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The rules also require plaintiffs to set out their claims in separate, numbered paragraphs, “each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b)."”

   "Rule 11 does not change the liberal notice pleading regime of the federal courts or the requirement of Fed.R.Civ.P. 8, which demands only a "short and plain statement of the claim." The rule does not require that pleadings allege all material facts or the exact articulation of the legal theories upon which the case will be based."

3. Sufficient Facts

   “To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff need not recite “detailed factual allegations,” but must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. (quoting Twombly, 550 U.S. at 555).

   “Dismissal is not appropriate unless it is plain that the plaintiff can prove no set of facts that would support the claims in the complaint.

4. Assume All Allegations are True

   “Likewise, the Court must accept all factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citation omitted). But the Court “need not accept factual claims that are internally inconsistent; facts which run counter to facts of which the court can take judicial notice;"

5. Plausibility

   “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id."”

   • Plausibility Standard

     “When applying the plausibility standard, a court should undertake a “two-pronged approach.” [Iqbal]. First, the court should identify and disregard legal conclusions not entitled to the assumption of truth. Id. Second, the court should identify and assume the truth of wellpleaded factual allegations and “determine whether they plausibly give rise to an entitlement to relief.” Id. An example of a legal conclusion is, “the defendant was negligent.” An example of a factual allegation is, “the defendant was driving 90 m.p.h. on a road with a speed limit of 45 m.p.h.””

6. Double-Check for Propriety

   “The pleadings of pro se litigants are "liberally construed" and held to a less exacting standard as those complaints drafted by attorneys. Tannenbaum v United States, 148 F. 3d 1262, 1263 (11th Cir. 1998). "However, a pro se litigant must still meet minimal pleading standards." Pugh v Farmers Home Admin., 846 F. Supp. 60, 61 (MD Fla. 1994) (citation omitted). And the courts are not tasked with drafting or rewriting a complaint to locate a claim. Peterson v Atlanta Hous. Auth., 998 F. 2d 904 (11th Cir. 1993)”

   “[A] motion to dismiss should concern only the complaint’s legal sufficiency, and is not a procedure for resolving factual questions or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.)."

• Within 14 Days of the defendant's motion
  • see Rule 72 Fed. R. Civ. P.
  • see Local Rule 3.01(c) USFLMD (21-day deadline at USFLMD)

• Action Steps:
  1. Re-read your Complaint shortly before reading the defendant's motion
  2. Write down the charges/counts that you levied against the defendant
• Benefits:
  • This will help refresh your memory [as to what the issues are]
  • This will help you identify/combat the false/immaterial statements in your opponent's motion

• Action Steps:
  1. Annotate the Motion to Dismiss
  2. Mark the true statements/concessions [from the Motion]
  3. Mark the false statements [from the Motion]
  4. Mark the immaterial statements [from the Motion]
• Benefits:
  • This will help you plan/write your Response document

• Action Steps:
  1. Copy & Paste passages from the motion
• Benefits:
  • Using direct quotes will help your Response attack your opponent's falsehoods/etc

• Action Steps:
  1. Copy & Paste all of the cited opinions/statutes that are in your opponent's Motion to Dismiss
  2. Google the cited opinions
     • alternatively, you can use other search engines (eg, Bing, DuckDuckGo, Yandex, etc.)
     • note: in TBD's experience, other search engines (ie, DuckDuckGo in particular) produce results that Google [sometimes] misses
  3. Important Note: If you're short on time/patience, then save the unpublished opinions for last
     • Reason 1a: they have little-to-no value (especially if your opponent has not explicitly stated that he/she/it's using them as "persuasive authority" only)
     • Reason 1b: unpublished opinions are not considered binding precedent
       • see McNamara v Geico, 30 F.4th 1055 (11th Cir. 2022)
• Benefits:
  • Reading the opinions will likely reveal fallacies in your opponent's arguments
    • For instance: your opponent might have misrepresented what an appellate opinion actually rendered
    • For instance: your opponent might have cited an opinion that is no longer viable (ie, overruled by subsequent decisions)
    • For instance: your opponent might have cited an opinion that actually favors your complaint

• Action Steps:
  1. Identify the points that your opponent explicitly conceded
  2. Identify the points that your opponent implicitly conceded
     (ie, via dodging/avoiding the issue)
• Benefits:
  • This will help you keep your Response as short as possible
  • This will give you an opportunity to reinforce the indisputability of your complaint

• Model your language after the language that lawyers use