A case about Rule 12 and Rule 56 that makes sense until the end.

Defendant is a landlord; Plaintiff is a contractor who did work for Defendant’s tenant. The tenant didn’t pay for it; Plaintiff sued.

Defendant moved to dismiss. Plaintiff didn’t respond, so the motion was granted for that reason. Plaintiff moved to reconsider, arguing that the motion to dismiss was a Rule 56 motion since it presented matters outside the pleadings. Plaintiff did not address the merits but asked for additional time to do so, even though it filed the motion after a response to a summary-judgment motion would have been due. The trial court denied reconsideration.

Plaintiff then filed a Rule 60 motion based on mistake or excusable neglect because “it appears that Plaintiff’s counsel and the Court have differing views on  . . . when  . . . a Motion to Dismiss becomes a Motion for Summary Judgment.” The trial court denied the motion.

A 12(b)(6) motion must be treated as a Rule 56 motion if it presents “matters outside the pleading” that are not excluded by the trial court. The part about excluding them has been addressed elsewhere; this case deals with other aspects of that rule. First, a contract  attached to a Complaint is not “outside the pleading.” Second, public records mentioned in a motion to dismiss (here, some liens) don’t require it to be treated as a motion for summary judgment. Third, documents “central to the complaint” don’t require it, on the theory that they’re not a surprise to the other party. (On this issue the court cites federal precedent but not, for some reason, the Arizona precedent – the CA2 Cullen/Koty-Leavitt opinion; it was partially vacated on other grounds but is still perfectly good on these issues.)

Because the motion to dismiss did not have to be treated as a Rule 56 motion, the trial court did not abuse its discretion in granting it simply because Plaintiff did not respond. (You can’t do that with a summary judgment.)

The opinion says that when it is “plain” that a Rule 12 motion should be converted to Rule 56  then Plaintiff has thirty days to respond, otherwise the 10-day time for Rule 12 applies; when it isn’t clear, Plaintiff should respond within 10 days or “confer” with Defendant about a briefing schedule, or they can contact the court for “guidance.” Although the point is that a plaintiff can’t, as this one did, do nothing, this passage will cause more problems than it cures. Look for the usual suspects to respond to every Rule 12 motion with a letter insisting that they should have 30 days and if you don’t like that you can contact the judge. In any event, the trial court did not abuse its discretion in denying the motion to reconsider.

(As we try to do, we have left out a couple of Plaintiff’s more laughable arguments. We mentioned the “differing views” theory because it is, amazingly, one of the least so of the bunch.)

So the trial court is affirmed, right? You know by now that when we ask that the answer is “wrong.” Remember Plaintiff’s request for additional time to respond? The opinion says that, “in an apparent oversight,” the trial court didn’t rule on this, so it reverses and remands “to permit the court the opportunity to consider the request.”

Say, what?? In the first place, ten bucks says there was no oversight; the court effectively disposed of the motion and gave the request all the consideration it deserved.  In the second place, even if it hadn’t, the law says how to treat motions not expressly ruled on below and it isn’t to remand for loose-end repair. In the third place, what does the appellate court think the trial court is going to do? Reverse its position 180 degrees, throw out its own, multiple prior rulings and the whole appeal, and decide that Plaintiff should have had more time after all? And if that’s a possibility, why call for it after you’ve written the opinion that that ruling would make a waste of time?  And in the fourth place, does the court really mean to imply that letting a party move for more time to respond, for a legally invalid reason, after the time for a response has expired even under the movant’s legal theory, and absent some strange circumstance that isn’t present here, would not be an abuse of discretion?

We suspect that this wasn’t the most well-briefed case ever but we can’t blame this disposition on the lawyers.

(link to opinion)