Waiting for the facts: Two things to know about summary judgment before discovery

When you’re working with the Federal Rules of Civil Procedure you will notice a recurring theme: Timing is everything. The Sixth Circuit has issued a decision in a case that teaches two useful lessons about timing, discovery, and summary judgment: You can file a Rule 12(b)(6) motion to dismiss before discovery but if it uses affidavits and other evidence it might not remain a motion to dismiss. And if it doesn’t remain a motion to dismiss, an opposing counsel who knows the rules has a powerful weapon to defeat what’s now your newborn motion for summary judgment.

Vicki Moore, director of the Shelby County Animal Care Coalition, sued Shelby County, Kentucky, in state court alleging the county had broken federal and state law by wiping a county-run animal shelter’s surveillance videos. Shelby County removed to federal court, then—before any discovery—moved for summary judgment. The district court granted the motion and dismissed Moore’s claims with prejudice. Moore appealed and the Sixth Circuit reversed and remanded, holding that the district court shouldn’t have granted summary judgment before discovery.

Now you might have asked why the district court ruled on summary judgment before discovery instead of on a motion to dismiss. It’s not a small difference—dismissal for failure to state a claim often ends with leave to amend the complaint but summary judgment ends the case. Doesn’t summary judgment only happen after at least some discovery? Well, usually, yes. But a district court may rely on documents outside the pleadings on a Rule 12(b)(6) motion to dismiss as long as the judge converts the motion to dismiss to a motion for summary judgment. (There are some documents that won’t trigger this but that’s another article.) It’s not discretionary: If your opposing counsel files a motion to dismiss that comes with evidence as well as briefing, and the court decides it will read that evidence and use it in the ruling, then your opposing counsel has just converted that motion to summary judgment. That’s not quite what happened here—Shelby County submitted affidavits and properly filed a motion for summary judgment instead of a motion to dismiss—but it’s why the court’s ruling was on summary judgment even though discovery hadn’t started, much less ended.

The Sixth Circuit’s opinion turns on this procedural oddity and gives some attention to part of Rule 56 that lawyers should never overlook in cases facing summary judgment before discovery. Federal Rule of Civil Procedure 56(b) allows you to file for summary judgment “at any time,” yes, even before discovery begins. But Rule 56(d) allows you to defend against summary judgment by explaining that “for specified reasons, [the defending party] cannot present facts essential to justify its opposition . . . .” Not having had any discovery is a pretty good reason why you can’t defend against summary judgment.

Rule 56(d) does allow the court to grant an early summary judgment, but the Sixth Circuit held that, in this case, the district court abused its discretion: “[A]lthough [the Sixth Circuit] has upheld cases grating summary judgment prior to discovery . . . such cases are extraordinary and not the norm. . . . Common sense dictates that before a district court tests a party’s evidence, the party should have the opportunity to develop and discover the evidence.” Moore had explained that she needed discovery to defend against summary judgment, and the Sixth Circuit held that the district court should have given her the chance to have that discovery. Now the case goes back to the district court. Something tells me that we’ll see another round of summary judgment though—but this time with the facts. Until then, the Sixth Circuit’s opinion is here.