Lynn R. Ríos-Campbell v. U.s. Department of Commerce

United States Court of Appeals
For the First Circuit
No. 18-1420
LYNN R. RÍOS-CAMPBELL,
Plaintiff, Appellant,
v.
U.S. DEPARTMENT OF COMMERCE et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Selya, and Lynch,
Circuit Judges.
Israel Roldán-González on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Antonio L. Perez-Alonso, Assistant United
States Attorney, on brief for appellees.
June 13, 2019

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SELYA, Circuit Judge. It is written that "[t]o every
thing there is a season, and a time to every purpose."
Ecclesiastes 3:1. This proverb may ring as true in federal civil
procedure as in nature: because the court below, acting on a fully
developed motion for summary judgment, employed a legal standard
meant for use at an earlier stage of the case, its judgment must
be vacated. The tale follows.
We briefly rehearse the relevant facts and procedural
history. On March 5, 2015, plaintiff-appellant Lynn R. Ríos-
Campbell commenced a civil action in the United States District
Court for the District of Puerto Rico. In his complaint, the
plaintiff — a native of Puerto Rico — alleged that his employer,
the United States Department of Commerce, along with several
federal functionaries, had discriminated against him on the basis
of his national origin and, in the bargain, had subjected him to
retaliation when he raised the issue. The plaintiff filed an
amended complaint, not relevant here, and then filed a second
amended complaint on December 23, 2015. After the defendants filed
an answer and the district court entered a scheduling order, the
parties engaged in pretrial discovery. The discovery period closed
on March 31, 2016.
Soon thereafter, the defendants moved for summary
judgment. See Fed. R. Civ. P. 56(a). Their motion papers included

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over 1,200 pages of exhibits. The plaintiff opposed the motion,
and the defendants replied to his opposition.
The matter lay relatively fallow for over a year. On
March 29, 2018, the district court entered an order stating in
pertinent part: "[h]aving considered the Motion for Summary
Judgment filed by defendants . . . as a motion to dismiss for
failure to state a plausible claim, said Motion for Summary
judgment is GRANTED." The court advised that a "[s]tatement of
reasons" would follow.
On May 2, the court amended its March 29 order nunc pro
tunc. The amended order confirmed that the court, sua sponte, had
treated the defendants' motion for summary judgment as a motion to
dismiss "pursuant to Fed. R. Civ. P. 12(b)(6)" and had granted the
motion on that understanding. Its accompanying statement of
reasons memorialized the court's view that the plaintiff's second
amended complaint failed to state a plausible claim upon which
relief could be granted. 1 This timely appeal followed.
Despite the fact that the parties do not quarrel with
the district court's treatment of the defendants' motion for
1 The court's decision to invoke the plausibility standard
was reached on its own initiative. None of the parties had
suggested the use of this standard in their summary judgment
papers, and the district court gave no prior notice of its
intention to treat the summary judgment motion in that manner.
Nor did the court invite any briefing from the parties as to its
intended course of action.

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summary judgment as a motion to dismiss, that issue casts a large
shadow over any attempt to review the ruling below. In our view,
the orderly administration of justice counsels in favor of
addressing the issue here and now. Our consideration of the appeal
begins — and ends — there.
We review the district court's decision to treat the
defendants' motion for summary judgment as a motion to dismiss for
abuse of discretion. See Vélez v. Awning Windows, Inc., 375 F.3d
35, 41 (1st Cir. 2004) (holding that "[a]ppellate review of a
district court's case-management decisions is solely for abuse of
discretion"); cf. Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d
472, 475 (1st Cir. 2000) (explaining that review of district
court's conversion of "Rule 12 motion into motion for summary
judgment [is] for abuse of discretion"). The dispositive question
is whether, in the absence of special circumstances or persuasive
reasons, the district court abused its discretion in
transmogrifying a fully developed motion for summary judgment,
replete with exhibits gleaned partially through discovery, into a
motion to dismiss for failure to state a claim. We think that it
did.
The Federal Rules of Civil Procedure offer litigants a
number of avenues through which they may attempt to terminate civil
actions short of trial. The earliest available option is a motion
to dismiss under Rule 12(b), which "must be made before pleading

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if a responsive pleading is allowed." Fed. R. Civ. P. 12(b). The
rule itself lists several grounds upon which such a motion may
rest, including (as relevant here) "failure to state a claim upon
which relief can be granted." Fed. R. Civ. P. 12(b)(6). To
withstand a Rule 12(b)(6) motion, a complaint must "contain
sufficient factual matter . . . to 'state a claim to relief that
is plausible on its face.'" Haley v. City of Boston, 657 F.3d 39,
46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
By its very nature, the plausibility standard is time-
sensitive. Refined to bare essence, it "is a screening mechanism
designed to weed out cases that do not warrant either discovery or
trial." Atieh v. Riordan, 727 F.3d 73, 76 (1st Cir. 2013). This
screening comprises a "threshold inquiry." Grajales v. P.R. Ports
Auth., 682 F.3d 40, 46 (1st Cir. 2012). It is meant to take place
early in the litigation, prior to discovery. See id.
Once an answer to the complaint is filed, the legal
landscape shifts. In such circumstances, a party's next option is
to move for judgment on the pleadings under Rule 12(c). See Fed.
R. Civ. P. 12(c) (providing that "[a]fter the pleadings are closed
— but early enough not to delay trial — a party may move for
judgment on the pleadings"). If "a motion for judgment on the
pleadings . . . is employed as a vehicle to test the plausibility

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of a complaint," the Rule 12(b)(6) plausibility standard may again
come front and center. Grajales, 682 F.3d at 44.
When the window for filing either a motion to dismiss
for failure to state a claim or a motion for judgment on the
pleadings has shut and substantial discovery has taken place, the
plausibility standard normally becomes a relic of a bygone time.
From that point forward, a party seeking to end a civil action
short of trial ordinarily must meet a different standard: the
standard applicable to a motion for summary judgment under Rule
56. A district court will grant summary judgment only "if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). In the usual case, such a motion — unlike
a motion to dismiss for failure to state a claim 2 — will be based,
at least in part, on materials outside the pleadings.
2 To be sure, there is a narrow swath of materials outside
the complaint itself that may be considered on a motion to dismiss
for failure to state a claim. See, e.g., Freeman v. Town of
Hudson, 714 F.3d 29, 36 (1st Cir. 2013) (explaining that "some
extrinsic documents may be considered without converting a motion
to dismiss into a motion for summary judgment"); Banco Santander
de P.R. v. López-Stubbe (In re Colonial Mortg. Bankers Corp.), 324
F.3d 12, 20 (1st Cir. 2003) (explaining that district court
adjudicating motion to dismiss may consider "documents
incorporated by reference in [the complaint], matters of public
record, and other matters susceptible to judicial notice");
Beddall v. State St. Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir.
1998) (explaining that when "complaint's factual allegations are
expressly linked to — and admittedly dependent upon — a document
(the authenticity of which is not challenged), that document
effectively merges into the pleadings and the trial court can

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Seen in this light, it is luminously clear that the root
purpose of the plausibility standard differs materially from the
root purpose of the summary judgment standard. The former is
intended to screen out claims in which the factual allegations of
the complaint are too scanty or too vague to render the claims
plausible, see Atieh, 727 F.3d at 76, whereas the latter is
intended to "pierce the boilerplate of the pleadings and assay the
parties' proof in order to determine whether trial is actually
required," Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st
Cir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d
791, 794 (1st Cir. 1992)). It follows that while a complaint may
be tested for plausibility at the inception of a suit, a district
court "should refrain from entertaining summary judgment motions
until after the parties have had a sufficient opportunity to
conduct necessary discovery." Vélez, 375 F.3d at 39.
Viewed against this backdrop, the district court's
attempt, without notice, to transform the defendants' fully
developed motion for summary judgment, replete with exhibits
gleaned partially through discovery, into a motion to dismiss for
failure to state a claim strikes a dissonant chord. The defendants
chose not to file a motion to dismiss but instead to move for
review it in deciding a motion to dismiss under Rule 12(b)(6)").
In the case at hand, the attachments to the defendants' motion for
summary judgment go far beyond this narrow swath.

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summary judgment, and that choice should be given some weight —
especially since the Federal Rules of Civil Procedure offer no
support for a conversion such as was undertaken by the district
court.
Although a motion to dismiss for failure to state a claim
sometimes may be converted into a motion for summary judgment, 3 we
know of no authority that allows for the reverse conversion of a
summary judgment motion into a motion to dismiss for failure to
state a claim. Just because a cucumber can be turned into a pickle
does not mean that a pickle can be turned into a cucumber, and
principles of sound case management strongly suggest that allowing
such a reverse conversion here would be inappropriate. After all,
the parties briefed and argued summary judgment, and judicial
efficiency would have been best served by dealing directly with
those arguments rather than avoiding them. This course of action
would seem particularly appropriate since, had the defendants
elected to file a motion to dismiss under Rule 12(b)(6) after the
close of discovery, their motion would have been deemed untimely.
See Fed. R. Civ. P. 12(b) (requiring that motion to dismiss be
filed before movant has answered complaint); see also Patrick v.
3 See Fed. R. Civ. P. 12(d) (providing that if "matters outside
the pleadings are presented to and not excluded by the court" on
a Rule 12(b)(6) motion, the motion "must be treated as one for
summary judgment under Rule 56"); see also Beddall v. State St.
Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998) (discussing
conversion of Rule 12(b)(6) motion into Rule 56 motion).

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Rivera-Lopez, 708 F.3d 15, 18 (1st Cir. 2013) (finding Rule
12(b)(6) motion, filed "long after the deadline for responsive
pleadings," untimely).
We add, moreover, that on the facts of this case, the
district court's approach stands logic on its ear. "[O]ne of the
main goals of the plausibility standard is the avoidance of
unnecessary discovery." Grajales, 682 F.3d at 46 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556-58 (2007)). To allow
invocation of the plausibility standard after the completion of
discovery would defeat this goal. And in all events, going through
a lengthy period of discovery only to ignore the fruits of the
discovery process by focusing single-mindedly on the adequacy of
the allegations of the complaint would make little sense in the
mine-run of cases. See id. ("Applying the plausibility standard
to a complaint after discovery is nearly complete would defeat
[the standard's] core purpose."). Absent special circumstances or
persuasive reasons (not present here), we see no justification for
allowing a district court to travel back in time and train the
lens of its inquiry on the bare allegations of the complaint while
disregarding the compiled factual record upon which a summary
judgment movant has elected to rely. Cf. id. (cautioning that
"once the parties have invested substantial resources in
discovery, a district court should hesitate to entertain a Rule

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12(c) motion that asserts a complaint's failure to satisfy the
plausibility requirement").
We need go no further. For the reasons elucidated above,
we hold that the district court applied the wrong legal standard
in adjudicating the defendants' summary judgment motion. Where,
as here, an answer has been filed and no special circumstances or
persuasive reasons justifying contrary action exist, a district
court should not treat a fully developed motion for summary
judgment as a motion to dismiss for failure to state a claim upon
which relief may be granted. Accordingly, we vacate the judgment
of the district court and remand for consideration of the
defendants' motion under the summary judgment standard.
Vacated and remanded. No costs.

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