Opinion
Plaintiff filed petition to quash third party summons. On defendant's motion to dismiss, the District Court, Moody, J., held that pro se petitioner had to be given notice of probable consequences of failing to respond to motion to dismiss for lack of subject matter jurisdiction.
Ordered accordingly.
Gerald E. Crampton, Fort Wayne, Indiana, pro se.
Gerald H. Parshall, Jr., U.S. Dept. of Justice, Washington, DC, for respondent.
ORDER
MOODY, District Judge.
The United States' unopposed motion to accept pleading instanter is GRANTED.
The pleading now accepted, which the clerk shall immediately file, is a document captioned simply " United States' Motion to Dismiss." Nowhere in the motion does the United States attempt to pigeonhole the requested relief under one of the subdivisions of FED.R.CIV.P. 12(b). Proper categorization of the motion is not simply a matter of pedantic interest, because the motion asks the court to consider matters outside the petitioner's " complaint."
This case involves a petition filed pursuant to 26 U.S. C § 7609(b)(2)(A) to quash a third-party summons, as opposed to a civil complaint. This distinction makes no difference to the concerns addressed in this order.
If the motion comes under RULE 12(b)(6), this requires treating it as a motion for summary judgment, and giving notice of the conversion to the petitioner. FED.R.CIV.P. 12(b); Beam v. IPCO Corp., 838 F.2d 242, 245 (7th Cir.1988); Farries v. Stanadyne/Chicago Division, 832 F.2d 374, 377-78 (7th Cir.1987). Moreover, because petitioner is proceeding pro se, treating the motion as one for summary judgment would require giving petitioner the additional notice contemplated by Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982); Timms v. Frank, 953 F.2d 281, 285 (7th Cir.1992) (extending Faulkner notice obligation to all pro se litigants). If the court does not convert the motion, and it remains a RULE 12(b)(6) motion, Faulkner notice is not required. Curtis v. Bembenek, 48 F.3d 281, 287-88 (7th Cir.1995).
The court views the United States' motion as one made under RULE 12(b)(1), however, because the United States' brief in support argues that petitioner's filing is untimely, depriving the court of subject matter jurisdiction. See Williams v. United States, 83-2 U.S. Tax Cas. (CCH) 9617 (S.D.Ind.1983). The question this presents is whether a RULE 12(b)(1) motion more closely resembles a motion for summary judgment, and requires Faulkner notice, or a RULE 12(b)(6) motion, and does not.
It is clear that considering evidentiary materials outside the pleadings does not require a RULE 12(b)(1) motion to be treated as a motion for summary judgment. English v. Cowell, 10 F.3d 434, 437 (7th Cir.1993); Crawford v. United States, 796 F.2d 924, 928 (7th Cir.1986). Thus, no notice of conversion, as required by Beam and Farries, need be given to the petitioner. Does this also suggest that, as with a RULE 12(b)(6) motion, no Faulkner notice need be given?
The rationale for not requiring Faulkner notice along with a RULE 12(b)(6) motion is that the non-movant may, unlike when faced with a motion for summary judgment, withstand dismissal by resting on the allegations of his or her complaint. Bembenek, 48 F.3d at 287. The same is not true of a motion under RULE 12(b)(1), however. A RULE 12(b)(1) motion typically requires the nonmoving party to resolve, whether through affidavits or other relevant evidence, the factual dispute regarding the court's subject matter jurisdiction. Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir.1987). See also Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979) (" In cases where the jurisdiction of the court is challenged as a factual matter, the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof." ) (Citations omitted). Thus, the nonmoving party must be " afforded an opportunity to present contradicting affidavits or materials in order to cure a jurisdictional or party defect not capable of being resolved on the words of the complaint." English, 10 F.3d at 437.
Assuming that the facts established by the movant show that the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c).
This requirement-that the court afford the nonmovant an opportunity to respond to the motion with affidavits or other materials-is identical to that imposed on the court when treating a RULE 12(b)(6) motion as one for summary judgment. " [A]ll parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." FED.R.CIV.P. 12(b). Because a litigant who lacks knowledge of the consequences of not responding to a summary judgment motion does not have a reasonable opportunity to respond, the Faulkner court reasoned that RULE 12(b) explicitly and RULE 56 implicitly require that pro se prisoners be given notice of those consequences. Faulkner, 689 F.2d at 102.
The same considerations inhere with respect to a motion under RULE 12(b)(1): it is too much to expect of a pro se litigant that he or she will know that the failure to " present contradicting affidavits or materials ... to cure a jurisdictional or party defect," English, 10 F.3d at 437, will in all likelihood lead to dismissal of his or her action. Accordingly, this court concludes that pro se litigants must be given a notice, similar to that described in Faulkner, of the probable consequences of failure to respond to a RULE 12(b)(1) motion, when the motion uses affidavits or other evidence to attack the jurisdictional facts alleged in the complaint.
In this case the court will, in a separate document, provide the following notice to the petitioner:
NOTICE: The defendant has moved to dismiss your petition pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1), a copy of which is attached. The defendant believes that the court does not have jurisdiction over your action. In support of the motion, the defendant has submitted documentary evidence which indicates that the Internal Revenue Service mailed to you on April 21, 1995, notice of a summons.
You have twenty days from the clerk's filing date stamped above to file a response to defendant's motion. If your response does not include an affidavit or other documentary evidence contradicting the defendant's evidence, then the court will presume that the defendant's evidence is true, and may dismiss your action without further hearing or trial.
In future cases where defendants move for dismissal of a pro se litigant's case pursuant to RULE 12(b)(1), the court trusts that counsel for the moving party will provide a similar notice with the motion, relieving the court of this burden. Cf. Faulkner, 689 F.2d at 102-03.
SO ORDERED.
NOTICE
The defendant has moved to dismiss your petition pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1), a copy of which is attached. The defendant believes that the court does not have jurisdiction over your action. In support of the motion, the defendant has submitted documentary evidence which indicates that the Internal Revenue Service mailed to you on April 21, 1995, notice of a summons.
You have twenty days from the clerk's filing date stamped above to file a response to defendant's motion. If your response does not include an affidavit or other documentary evidence contradicting the defendant's evidence, then the court will presume that the defendant's evidence is true, and may dismiss your action without further hearing or trial. (Image Omitted)