Rule 12(d) Conversion

What It Is

Federal Rule of Civil Procedure 12(d) provides that if, on a motion under Rule 12(b)(6) or 12(c), “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” All parties “must be given a reasonable opportunity to present all the material that is pertinent to the motion.”

Why It Exists

A motion to dismiss tests the complaint on paper. The court accepts your allegations as true. A motion for summary judgment tests the evidence, and you must respond with evidence of your own. Rule 12(d) stops a defendant from getting summary-judgment treatment under the motion-to-dismiss label, with no discovery and no chance for you to submit declarations or exhibits.

What Does Not Trigger Conversion

Three categories of material may be considered on a motion to dismiss without converting it:

• documents attached to the complaint
• documents referenced in the complaint that are central to the claim, under incorporation by reference
• matters of public record subject to judicial notice, such as court filings and dockets

Anything else, including affidavits from the officers, the department’s policies if you did not plead them, and video you did not reference, is outside the pleadings.

How Defendants Use It

Defendants attach body-camera video, incident reports, and officer declarations to motions to dismiss and ask the court to consider them. If the court does, it has two choices: exclude the material and decide the motion on the complaint alone, or convert the motion and give you a chance to respond with evidence.

What the court may not do is consider the material, rule against you, and call it a Rule 12(b)(6) dismissal.

What to Do When the Defense Attaches Evidence

1. In your response, object. State that the material is outside the pleadings and is not incorporated by reference or subject to judicial notice.
2. Ask the court to exclude it and decide the motion on the complaint.
3. In the alternative, ask that if the court considers it, the motion be converted under Rule 12(d) and you be given a reasonable opportunity to present evidence, including a period for discovery under Rule 56(d).
4. Do not respond to the evidence with evidence of your own unless you want conversion. Doing so can waive the objection.

Key Authority

• Fed. R. Civ. P. 12(d) — conversion and the right to present material
• Fed. R. Civ. P. 56(d) — relief when facts are unavailable to the nonmovant