Collier v. City of Chicopee

• Court: Court of Appeals for the First Circuit
• Decided: October 21, 1998
• Docket: 98-1298
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1298


NICHOLAS S. COLLIER, P.P.A. STANTON E. COLLIER,



                      Plaintiff, Appellant,



                                v.



                    CITY OF CHICOPEE, ET AL.,



                      Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Kenneth P. Neiman, U.S. Magistrate Judge]


Before



                      Selya, Circuit Judge,

                                

                 Aldrich, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Stanton E. Collier for appellant.

     Helen M. Bowler for appellees.


October 20, 1998


SELYA, Circuit Judge.  Plaintiff-appellant Nicholas J.

Collier, a minor, sued the City of Chicopee and a myriad of persons

affiliated with the Chicopee public school system (collectively,

the City) in the United States District Court for the District of

Massachusetts.  After some preliminary skirmishing, not material

here, the parties stipulated that all proceedings would be

conducted before a magistrate judge.  See 28 U.S.C.  636(c). 

Collier thereafter filed a 59-page amended complaint which premised

jurisdiction on the existence of a federal question.  See 28 U.S.C.

 1331 (1994).  The complaint purposed to limn causes of action

under 20 U.S.C.  1681, 42 U.S.C.  1983, and 42 U.S.C.  1985(3),

as well as various pendent causes of action based on Massachusetts

statutory and common law.  In one way or another, all the claims,

federal and state, arose out of Collier's alleged mistreatment

while a sixth-grade student at the Selsen School and thereafter

while attending the Fairview Veterans Middle School.

  The City responded to the amended complaint by filing a

motion to dismiss.  Collier served an opposition, to which he

appended several affidavits.  The magistrate judge held a hearing

on December 4, 1997.  Although the transcript of the hearing

reflects some initial confusion about the procedural status of the

matter, the judge eventually suggested treating the motion to

dismiss as if it were a motion for judgment on the pleadings under

Fed. R. Civ. P. 12(c).  The parties acquiesced.

  Following oral argument, the magistrate judge took the

motion under advisement (along with Collier's subsequent motion for

partial summary judgment, filed pursuant to leave granted at the

December 4 hearing).  The judge ultimately ruled that the case, as

presented, revealed no genuine issue of material fact as to any

federal cause of action.  He thereupon directed the entry of

judgment for the City on Collier's claims under federal law, denied

Collier's cross-motion for partial summary judgment, and dismissed

the state-law causes of action, without prejudice, for want of

jurisdiction.  This appeal ensued.

  The pivotal question before us is procedural.  Motions to

dismiss for failure to state an actionable claim are governed by

Fed. R. Civ. P. 12(b)(6).  As such, they customarily evoke a

generous standard of appraisal.  See, e.g., Gooley v. Mobil Oil

Corp., 851 F.2d 513, 514 (1st Cir. 1998) (emphasizing minimal

nature of  requirements imposed by Rule 12(b)(6) and  explaining

that a motion to dismiss should  be granted only if the complaint

"shows no set of facts which could entitle the plaintiff to

relief").  Motions for judgment on the pleadings are governed by

Fed. R. Civ. P. 12(c) and ordinarily warrant the same treatment. 

See Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 470 n.2

(7th Cir. 1997); Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.

1994).  Both of these rules go on to provide, in identical

language, that if "matters outside the pleadings are presented to

and not excluded by the court, the motion shall be treated as one

for summary judgment and disposed of as provided in Rule 56."  This

is an important distinction because the summary judgment standard

is considerably more stringent.  See, e.g., Garside v. Osco Drug,

Inc., 895 F.2d 46, 48 (1st Cir. 1990) (explaining that summary

judgment should be granted unless the non-movant demonstrates, by

competent evidence, a genuine issue of material fact).

  Invoking Rule 12, the court below converted the City's

motion into a motion for summary judgment and proceeded to test the

plaintiff's complaint against the more rigorous standard.  Collier

assigns error to this procedural ruling.  His position is

untenable.

  Collier expressly agreed that Rule 12(c) would apply to

the adjudication of the City's motion.  In any event, both Rule

12(b) and Rule 12(c) allow for conversion when material outside the

pleadings is to be considered.  To be sure, those rules also

provide, again in identical language, that a motion to dismiss or

a motion for judgment on the pleadings cannot be converted to one

for summary judgment unless the party opposing the motion is given

adequate notice of the conversion and a "reasonable opportunity to

present all material made pertinent to such a motion by Rule 56." 

Here, however, those conditions were satisfied.

     Notice of conversion need not be explicit.  See C.B.

Trucking, Inc. v. Waste Mgmt., Inc., 137 F.3d 41, 43 (1st Cir.

1998); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st

Cir. 1997).  To the contrary, the notice requirement can be

satisfied when a party receives constructive notice that the court

has been afforded the option of conversion   a phenomenon that

occurs when, for example, the movant attaches to his motion, and

relies on, materials dehors the pleadings.    See Rodriguez, 115

F.3d at 83.  Logic dictates that the same result must obtain when

the non-movant appends such materials to his opposition and urges

the court's consideration of them.

     In light of these background principles, we conclude,

without serious question, that Collier had ample notice of the

impending conversion.  By incorporating affidavits into his

opposition to the City's motion, Collier implicitly invited

conversion   and a party who invites conversion scarcely can be

heard to complain when the trial court accepts the invitation.  SeeRothery v. Rothery, 143 F.3d 546, 549 (9th Cir. 1998) ("A party is

'fairly apprised' that the court will in fact be [applying the

summary judgment standard]] if that party submits matters outside

the pleadings to the judge and invites consideration of them.");

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir.

1990) (similar).  Moreover, the judge secured Collier's agreement

to adjudicating the motion under Rule 12(c)   and Collier, who knew

at that point that he had introduced affidavits into the decisional

calculus, thus was on notice that Rule 12's built-in conversion

mechanism would be triggered.  See Rothery, 143 F.3d at 548-49;

C.B. Trucking, 137 F.3d at 43-44; Rodriguez, 115 F.3d at 83.

     Similarly, Collier had a reasonable opportunity to file

additional materials made pertinent by the conversion.  The court

heard the City's motion on December 4, 1997, at which time it

called the parties' attention to Rule 12(c).  Pursuant to

permission granted on December 4, Collier submitted a cross-motion

for partial summary judgment on December 11, 1997.  He attached

several documentary exhibits to this cross-motion, including

various items of correspondence, portions of a handbook published

by the school system, and notices of suspensions that he had

received.  By prearrangement, the magistrate judge considered this

cross-motion (and its attachments) in conjunction with the City's

dispositive motion.  Conforming to that arrangement, the judge took

Collier's assembled affidavits and his December 11 submissions

fully into account when, on February 10, 1998, he issued his

decision.  Hence, Collier not only had a reasonable opportunity to

present salient materials, but also availed himself liberally of

that opportunity.

     On this basis, we uphold the magistrate judge's

application of the summary judgment standard to the City's motion. 

In turn, this ruling undercuts Collier's remaining arguments.  The

proper office of summary judgment "is to pierce the boilerplate of

pleadings and assay the parties' proof in order to determine

whether trial is actually required."  Wynne v. Tufts Univ. Sch. of

Med., 976 F.2d 791, 794 (1st Cir. 1992).  Consequently, upon

conversion of a motion to one for summary judgment, "the party to

whom the motion is directed can shut down the machinery only by

showing that a trialworthy issue exists."  McCarthy v. Northwest

Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995).

     The existence of such an issue must be shown by resort to

materials of suitable evidentiary quality.  Such a showing cannot

be manufactured by negative implication; that is to say, a party

opposing summary judgment "cannot rely on an absence of competent

evidence, but must affirmatively point to specific facts that

demonstrate the existence of an authentic dispute."  Id.  Here,

viewing the entire record in the light most flattering to Collier

and indulging all reasonable inferences in his favor, see Garside,

895 F.2d at 48, we are unable to discern contested, properly

documented facts on which a trialworthy federal issue might rest.

     To say more would be supererogatory.  The preferred

practice in this circuit is that "when a lower court produces a

comprehensive, well-reasoned decision, an appellate court should

refrain from writing at length to no other end than to hear its own

words resonate."  Lawton v. State Mut. Life Assur. Co. of Am., 101

F.3d 218, 220 (1st Cir. 1996).  This case fits that description. 

Accordingly, we affirm the jettisoning of Collier's federal-law

claims for substantially the reasons elucidated in the magistrate

judge's cogent rescript.  See Collier v. City of Chicopee, Civ. No.

97-30123-KPN (D. Mass. Feb. 5, 1998) (unpublished).  We add only

that a summary judgment motion cannot be defeated by conclusory

allegations, harsh invective, empty rhetoric, strained inferences,

or unsupported conjecture.  See Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).  Stripped of these

elements, the plaintiff's amended complaint and his several

affidavits and other documentary exhibits do not pass muster under

the summary judgment standard.

     We need go no further.  Like the magistrate judge, we are

unable to discern a properly documented factual predicate

sufficient to carry the weight of Collier's federal claims.  We

also agree that the magistrate judge appropriately dismissed the

state-law counts, without prejudice, for want of federal

jurisdiction.  See Martinez v. Colon, 54 F.3d 980, 990 (1st Cir.

1995); see also 28 U.S.C.  1367(c)(3).  Although the plaintiff

conceivably may have a state court remedy   we take no view of that

question   he does not, on the instant record, have a federal

remedy.



Affirmed.