District Court Cannot Grant Rule 12(b)(6) Motion Solely Because It Struck Plaintiff’s Brief Under Rule 11(a), Holds Seventh Circuit

In Marcure v. Lynn, No. 19-2978 (7th Cir. Mar. 25, 2021), the panel addresses two unresolved issues in the circuit, holding that (1) the striking of unsigned briefs is mandatory under Fed. R. Civ. P. 11(a), but (2) even if a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) is unopposed, the court may not simply grant it by default.

“Marcure, a pro se litigant, alleged § 1983 claims against several police officers, who filed a Rule 12(b)(6) motion to dismiss those claims. Marcure’s response to their motion lacked a signature in violation of Rule 11(a). Although the district court gave Marcure six days to remedy this deficiency, he never did. The court then struck his response and granted the officers’ motion on the sole basis that it was unopposed.” The plaintiff, now with appointed counsel, appealed. The Seventh Circuit vacates and remands.

Regarding the Rule 11(a) issue, the panel rejects the plaintiff’s argument that striking the brief was discretionary. Rule 11(a) provides that courts “must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.” The panel reads “must” as compulsory. “By its plain terms, Rule 11(a) is mandatory when triggered—‘must’ does not mean ‘may.’ The text indicate that courts have discretion only when the party corrects its omission promptly, not as a blanket rule.” (Because the panel decision arguably conflicted with language from an earlier panel decision, Kovilic Constr. Co., Inc. v. Missbrenner, 106 F.3d 768 (7th Cir. 1997), it was circulated to all active judges pursuant to Circuit Rule 40(e) and no judge voted to hear the case en banc.)

On the Rule 12(b)(6) issue, though, the panel holds that the district court erred by automatically granting the motion to dismiss by default because, by striking the plaintiff’s brief, the motion was effectively unopposed. “While the text does not discuss the burden of proof, every circuit court to address this issue—this Court included—has interpreted Rule 12(b)(6) as requiring the movant to show entitlement to dismissal.” The panel holds that the absence of an opposition brief alone does not excuse the movant from its burden of proof. In so holding, the panel joined the majority of circuits that have so held.

The panel notes that there are occasions where the failure to file a response might evince the plaintiff’s intent to abandon the case or warrant the sanction of dismissal. But here, the district court made no finding whether the plaintiff forfeited their rights. Under such circumstances, six U.S. Courts of Appeals had already held that Rule 12(b)(6) motions may not automatically be granted solely because they are unopposed. Only the First Circuit had previously held that dismissal under such circumstances was permissible if local rules permitted it. But neither “the First Circuit nor the [defendants-appellees] officers square this logic with Rule 83(a)(1), which provides that local rules ‘must be consistent with’ the Federal Rules of Civil Procedure.” And because the burden of proof is with the movant under the rule, that burden may not be relieved merely be default.

The panel does not completely leave the district court without recourse where a plaintiff fails to oppose a motion, though. “Courts remain free to rule on Rule 12(b)(6) motions even absent a response by looking to the complaint itself to determine the sufficiency of the pleadings. They may also dismiss inactive cases for want of prosecution, if appropriate.”

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