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Collier v. City of Chicopee, 158 F.3d 601, 1st Cir. (1998)
Collier v. City of Chicopee, 158 F.3d 601, 1st Cir. (1998)
3d 601
41 Fed.R.Serv.3d 1502, 130 Ed. Law Rep. 101
Following oral argument, the magistrate judge took the motion under
advisement (along with Collier's subsequent motion for partial summary
judgment, filed pursuant to leave granted at the December 4 hearing). The
judge ultimately ruled that the case, as presented, revealed no genuine issue of
material fact as to any federal cause of action. He thereupon directed the entry
of judgment for the City on Collier's claims under federal law, denied Collier's
cross-motion for partial summary judgment, and dismissed the state-law causes
of action, without prejudice, for want of jurisdiction. This appeal ensued.
Invoking Rule 12, the court below converted the City's motion into a motion
for summary judgment and proceeded to test the plaintiff's complaint against
the more rigorous standard. Collier assigns error to this procedural ruling. His
position is untenable.
Collier expressly agreed that Rule 12(c) would apply to the adjudication of the
City's motion.1 In any event, both Rule 12(b) and Rule 12(c) allow for
conversion when material outside the pleadings is to be considered. To be sure,
those rules also provide, again in identical language, that a motion to dismiss or
a motion for judgment on the pleadings cannot be converted to one for
summary judgment unless the party opposing the motion is given adequate
notice of the conversion and a "reasonable opportunity to present all material
made pertinent to such a motion by Rule 56." Here, however, those conditions
were satisfied.
7
Notice of conversion need not be explicit. See C.B. Trucking, Inc. v. Waste
Mgmt., Inc., 137 F.3d 41, 43 (1st Cir.1998); Rodriguez v. Fullerton Tires
Corp., 115 F.3d 81, 83 (1st Cir.1997).2 To the contrary, the notice requirement
can be satisfied when a party receives constructive notice that the court has
been afforded the option of conversion--a phenomenon that occurs when, for
example, the movant attaches to his motion, and relies on, materials dehors the
pleadings. See Rodriguez, 115 F.3d at 83. Logic dictates that the same result
must obtain when the non-movant appends such materials to his opposition and
urges the court's consideration of them.
11
12
13
14
Affirmed.
At the December 4 hearing, the court informed Collier's counsel that it was
inclined to look toward Rule 12(c) and advised him that the City "has no
objection to [the motion to dismiss] being treated as a 12C motion." The court
then asked Collier's counsel to state his position. He replied: "I have no
objection."
In special circumstances, we have indicated that the trial court should notify the
parties expressly of its intention to convert. See EEOC v. Green, 76 F.3d 19, 24
(1st Cir.1996); Chaparro-Febus v. International Longshoremen Ass'n, Local
1575, 983 F.2d 325, 332 (1st Cir.1992). We need not probe the point too
deeply, however, for no special circumstances exist here, and, at any rate, the
magistrate judge announced his intention in ample time to permit the plaintiff
to supplement the record. See text infra
Citing Fed.R.Civ.P. 56(c), Collier contends that he was entitled to no less than
ten days after the judge ordered conversion within which to supplement the
record in response to the City's motion. We disagree. It is enough that the nonmovant has at least ten days from and after he receives actual or constructive
notice that the court has accepted for consideration matters dehors the
pleadings and, therefore, that it has been given the option of treating the motion
to dismiss as a motion for summary judgment. See Washington, 901 F.2d at
1283-84