District Court Abused its Discretion in Dismissing Case With Prejudice After Plaintiff's Untimely Response to FRCP 12(b)(6) Motion: DC Circuit | Practical Law

District Court Abused its Discretion in Dismissing Case With Prejudice After Plaintiff's Untimely Response to FRCP 12(b)(6) Motion: DC Circuit | Practical Law

In Cohen v. Board of Trustees, et. al., the US Court of Appeals for the DC Circuit reversed the district court's decision to dismiss a complaint and case with prejudice after the plaintiff failed to timely respond to a motion to dismiss under FRCP 12(b)(6). While dismissal of the complaint was a proper remedy after the district court deemed the motion unopposed under Local Rule 7(b), the district court abused its discretion in ordering the dismissal of the complaint and the entire case with prejudice.

District Court Abused its Discretion in Dismissing Case With Prejudice After Plaintiff's Untimely Response to FRCP 12(b)(6) Motion: DC Circuit

by Practical Law Litigation
Published on 26 Apr 2016 • USA (National/Federal)
In Cohen v. Board of Trustees, et. al., the US Court of Appeals for the DC Circuit reversed the district court's decision to dismiss a complaint and case with prejudice after the plaintiff failed to timely respond to a motion to dismiss under FRCP 12(b)(6). While dismissal of the complaint was a proper remedy after the district court deemed the motion unopposed under Local Rule 7(b), the district court abused its discretion in ordering the dismissal of the complaint and the entire case with prejudice.
In Cohen v. Board of Trustees, et. al., the US Court of Appeals for the DC Circuit reversed the district court's decision to dismiss a complaint and case with prejudice after the plaintiff failed to timely respond to a motion to dismiss under FRCP 12(b)(6). While dismissal of the complaint was a proper remedy after the district court deemed the motion unopposed under Local Rule 7(b), the district court abused its discretion in ordering the dismissal of the complaint and the entire case with prejudice. ( (Apr. 22, 2016).)
In 2010, the University of the District of Columbia fired Robert Cohen, a tenured professor. Cohen sued the University's Board of Trustees and three university officials in the DC Superior Court, alleging the firing violated his procedural due process rights.
The Board removed the case to the US District Court for the District of Columbia, then moved to dismiss under FRCP 12(b)(6). Cohen's counsel missed the deadline to file a brief in opposition to the motion. Cohen's counsel moved to amend his complaint, claiming he missed the deadline because he misread the docket and mistakenly believed the Board had not properly filed its motion to dismiss. Cohen's counsel then untimely moved for an extension of time to respond to the Board's motion, and untimely filed an opposition to the board's motion.
The district court denied Cohen's motion for an extension of time and denied Cohen's motion to amend his complaint. The court applied Local Rule 7(b) to treat the Board's motion to dismiss as unopposed due to Cohen's untimely response (D.D.C. LCvR 7(b)). The district court granted the Board's motion, dismissing Cohen's complaint and his case with prejudice. Cohen filed a motion to reconsider, which the district court denied.
Cohen appealed. On appeal, the Court of Appeals for the DC Circuit:
  • Affirmed the district court's denial of Cohen's motion to extend time.
  • Affirmed the district court's decision to dismiss Cohen's complaint, but ruled that the district court abused its discretion in dismissing both the case and the complaint with prejudice. The Court of Appeals therefore reversed the dismissal insofar as it was with prejudice, and remanded to permit Cohen to file an amended complaint.
In its ruling on the Board's motion to dismiss, the Court of Appeals distinguished between dismissal with and without prejudice. While a dismissal without prejudice was proper, the district court abused its discretion by dismissing with prejudice because:
  • The Federal Rules of Civil Procedure indicate a strong preference to resolve disputes on the merits (see Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550 (2010); Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012)).
  • While Cohen's response was untimely, he attempted to respond in good faith after a short delay, and the delay caused no prejudice to the defendants.
  • Cohen himself did not cause his response to be untimely; rather, Cohen's counsel made that mistake.
  • While FRCP 12(b)(6) places the burden of persuasion for a motion to dismiss on the moving party, the Court of Appeals was concerned that Local Rule 7(b) treats an unopposed motion to dismiss as conceded, effectively switching the burden to the non-moving party.
For these reasons, the Court of Appeals affirmed the district court's dismissal of the complaint, but reversed the dismissal insofar as it was with prejudice, and remanded to permit Cohen to file an amended complaint.