UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) JAMES MICHAEL MURPHY, ) ) Plaintiff, ) ) v. ) No. 17-cv-1911 (KBJ) ) DEPARTMENT OF THE AIR FORCE, ) ) Defendant. ) )
MEMORANDUM OPINION AND ORDER
Plaintiff James Murphy filed the instant case against the Department of the Air
Force (“Air Force” or “Defendant”) on September 18, 2017, alleging that the Air Force
has violated his rights under the Privacy Act, 5 U.S.C. § 552a, and seeking, inter alia,
monetary damages and an order to expunge certain records in the Air Force’s
possession. (See generally Compl., ECF No. 1.) The Air Force opted to file an answer
to Murphy’s complaint, and then subsequently moved to dismiss the complaint under
Rule 12(b)(6). (See ECF Nos. 5, 7, 17.) After this Court pointed out the impropriety of
this maneuver under the Federal Rules of Civil Procedure (see Min. Order of June 26,
2018), the Air Force responded by asserting that “the Court could simply treat
defendant’s motion [to dismiss] as a motion for judgment on the pleadings” under Rule
12(c), rather than striking the motion to dismiss and requiring the filing of a new
motion for judgment on the pleadings (see Def.’s Response to Order to Show Cause
(“Def.’s Resp.”), ECF No. 18, at 2). For the reasons explained below, Defendant is
mistaken. Rule 12(b)(6) motions to dismiss and Rule 12(c) motions for judgment on the
1 pleadings are distinct procedural vehicles that cannot be seamlessly substituted for one
another. See Tapp v. Washington Metro. Area Transit Auth., 306 F. Supp. 3d 383, 391–
92 (D.D.C. 2016). As a result, the Air Force’s request for the conversion of its Rule
12(b)(6) motion into a Rule 12(c) motion must be DENIED, and its Rule 12(b)(6)
motion (which was improperly filed after the answer) must be STRICKEN. If
Defendant wishes to move for judgment on the pleadings under Rule 12(c), it may
revise its answer as necessary and file a Rule 12(c) motion that comports with the
standards that govern such a motion under D.C. Circuit case law.
I. DISCUSSION
The distinction between a motion brought under Rule 12(b)(6) and a motion
brought under Rule 12(c) is more than “‘merely semantic[.]’” (Def.’s Resp. at 2
(quoting Douglass v. District of Columbia, 605 F. Supp. 2d 156, 161 (D.D.C. 2009)).)
Rule 12 plainly contains two different provisions, which in itself suggests that this Rule
authorizes two distinct means of challenging a plaintiff’s legal action. A proper motion
brought under either rule must necessarily reflect the differences in “their respective
scope and effect.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1369 (3d ed. 2004) [hereinafter Wright & Miller].
Stated simply, a Rule 12(b)(6) motion is “a method of testing the sufficiency of
the statement of the claim for relief[,]” 5B Wright & Miller, § 1349; as such, it is filed
before any responsive pleading. See Fed. R. Civ. P. 12(b) (“A motion asserting any of
these [12(b)] defenses must be made before pleading if a responsive pleading is
allowed.”). A defendant who opts to proceed under Rule 12(b)(6) in lieu of filing an
answer thereby contends that the complaint “fails to state a claim upon which relief can
be granted[,]” Fed. R. Civ. P 12(b)(6), and it is precisely because such a motion is
2 focused solely on the insufficiency of the complaint’s allegations—as opposed to their
accuracy—that the defendant must accept the allegations of the complaint as true as a
prerequisite to sustaining his contention that the complaint’s allegations are unavailing
nonetheless, see 5B Wright & Miller, § 1357.
By contrast, a motion for judgment on the pleadings under Rule 12(c) relates to
the merits of the claims in the complaint; it “has its historical roots in common law
practice, which permitted either party, at any point in the proceeding, to demur to his
opponent’s pleading and secure a dismissal or final judgment on the basis of the
pleadings.” 5C Wright & Miller, § 1367. A Rule 12(c) motion is thus filed after the
defendant has submitted an answer, see Fed. R. Civ. P. 12(c), and such a motion relies
on both sets of pleadings (i.e., the plaintiff’s complaint and the defendant’s answer) to
support an argument made by either party about the merits of the dispute at hand.
Importantly, not only does a Rule 12(c) motion differ in substance, it also
demands a different response from the court: unlike a Rule 12(b)(6) motion, a Rule
12(c) motion asks the court to render “a judgment on the merits . . . by looking at the
substance of the pleadings and any judicially noted facts.” All. of Artists & Recording
Cos., Inc. v. Gen. Motors Co., 162 F. Supp. 3d 8, 16 (D.D.C. 2016) (internal quotation
marks and citation omitted). Thus, a Rule 12(c) motion requires the court to consider
and decide the merits of the case, on the assumption that the pleadings demonstrate that
there are no meaningful disputes as to the facts such that the complaint’s claims are ripe
to be resolved at this very early stage in the litigation. See 5C Wright & Miller, § 1369
(explaining that, while “[t]he granting of a Rule 12(b) motion typically merely means
that the plaintiff has failed to satisfy one of the procedural prerequisites for asserting
3 his claim for relief[,] [a] motion for judgment on the pleadings . . . theoretically is
directed towards a determination of the substantive merits of the controversy”); see also
61A Am. Jur. 2d Pleading § 559 (same).
Therefore, cases that suggest that motions brought under Rule 12(b)(6) and Rule
12(c) are indistinguishable and interchangeable, such as Douglass v. District of
Columbia, 605 F. Supp. 2d 156 (D.D.C. 2009), and Bowman v. District of Columbia,
562 F. Supp. 2d 30, 32 (D.D.C. 2008), have mistakenly overlooked these motions’
markedly different functions, as well as the nuanced distinction between the legal
standards that apply when these motions are considered. To be sure, “the court must
construe the complaint in a light most favorable to the plaintiff and must accept as true
all reasonable factual inferences drawn from well-pleaded factual allegations” with
respect to a motion brought under either rule. Douglass, 605 F. Supp. 2d at 161. But
the alleged facts are accepted as true in the Rule 12(b)(6) context merely to test the
legal sufficiency of the complaint’s allegations standing alone, as explained above,
while the alleged facts are accepted as true under Rule 12(c) for the purpose of
evaluating the movant’s argument that no material dispute of fact exists such that the
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) JAMES MICHAEL MURPHY, ) ) Plaintiff, ) ) v. ) No. 17-cv-1911 (KBJ) ) DEPARTMENT OF THE AIR FORCE, ) ) Defendant. ) )
MEMORANDUM OPINION AND ORDER
Plaintiff James Murphy filed the instant case against the Department of the Air
Force (“Air Force” or “Defendant”) on September 18, 2017, alleging that the Air Force
has violated his rights under the Privacy Act, 5 U.S.C. § 552a, and seeking, inter alia,
monetary damages and an order to expunge certain records in the Air Force’s
possession. (See generally Compl., ECF No. 1.) The Air Force opted to file an answer
to Murphy’s complaint, and then subsequently moved to dismiss the complaint under
Rule 12(b)(6). (See ECF Nos. 5, 7, 17.) After this Court pointed out the impropriety of
this maneuver under the Federal Rules of Civil Procedure (see Min. Order of June 26,
2018), the Air Force responded by asserting that “the Court could simply treat
defendant’s motion [to dismiss] as a motion for judgment on the pleadings” under Rule
12(c), rather than striking the motion to dismiss and requiring the filing of a new
motion for judgment on the pleadings (see Def.’s Response to Order to Show Cause
(“Def.’s Resp.”), ECF No. 18, at 2). For the reasons explained below, Defendant is
mistaken. Rule 12(b)(6) motions to dismiss and Rule 12(c) motions for judgment on the
1 pleadings are distinct procedural vehicles that cannot be seamlessly substituted for one
another. See Tapp v. Washington Metro. Area Transit Auth., 306 F. Supp. 3d 383, 391–
92 (D.D.C. 2016). As a result, the Air Force’s request for the conversion of its Rule
12(b)(6) motion into a Rule 12(c) motion must be DENIED, and its Rule 12(b)(6)
motion (which was improperly filed after the answer) must be STRICKEN. If
Defendant wishes to move for judgment on the pleadings under Rule 12(c), it may
revise its answer as necessary and file a Rule 12(c) motion that comports with the
standards that govern such a motion under D.C. Circuit case law.
I. DISCUSSION
The distinction between a motion brought under Rule 12(b)(6) and a motion
brought under Rule 12(c) is more than “‘merely semantic[.]’” (Def.’s Resp. at 2
(quoting Douglass v. District of Columbia, 605 F. Supp. 2d 156, 161 (D.D.C. 2009)).)
Rule 12 plainly contains two different provisions, which in itself suggests that this Rule
authorizes two distinct means of challenging a plaintiff’s legal action. A proper motion
brought under either rule must necessarily reflect the differences in “their respective
scope and effect.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1369 (3d ed. 2004) [hereinafter Wright & Miller].
Stated simply, a Rule 12(b)(6) motion is “a method of testing the sufficiency of
the statement of the claim for relief[,]” 5B Wright & Miller, § 1349; as such, it is filed
before any responsive pleading. See Fed. R. Civ. P. 12(b) (“A motion asserting any of
these [12(b)] defenses must be made before pleading if a responsive pleading is
allowed.”). A defendant who opts to proceed under Rule 12(b)(6) in lieu of filing an
answer thereby contends that the complaint “fails to state a claim upon which relief can
be granted[,]” Fed. R. Civ. P 12(b)(6), and it is precisely because such a motion is
2 focused solely on the insufficiency of the complaint’s allegations—as opposed to their
accuracy—that the defendant must accept the allegations of the complaint as true as a
prerequisite to sustaining his contention that the complaint’s allegations are unavailing
nonetheless, see 5B Wright & Miller, § 1357.
By contrast, a motion for judgment on the pleadings under Rule 12(c) relates to
the merits of the claims in the complaint; it “has its historical roots in common law
practice, which permitted either party, at any point in the proceeding, to demur to his
opponent’s pleading and secure a dismissal or final judgment on the basis of the
pleadings.” 5C Wright & Miller, § 1367. A Rule 12(c) motion is thus filed after the
defendant has submitted an answer, see Fed. R. Civ. P. 12(c), and such a motion relies
on both sets of pleadings (i.e., the plaintiff’s complaint and the defendant’s answer) to
support an argument made by either party about the merits of the dispute at hand.
Importantly, not only does a Rule 12(c) motion differ in substance, it also
demands a different response from the court: unlike a Rule 12(b)(6) motion, a Rule
12(c) motion asks the court to render “a judgment on the merits . . . by looking at the
substance of the pleadings and any judicially noted facts.” All. of Artists & Recording
Cos., Inc. v. Gen. Motors Co., 162 F. Supp. 3d 8, 16 (D.D.C. 2016) (internal quotation
marks and citation omitted). Thus, a Rule 12(c) motion requires the court to consider
and decide the merits of the case, on the assumption that the pleadings demonstrate that
there are no meaningful disputes as to the facts such that the complaint’s claims are ripe
to be resolved at this very early stage in the litigation. See 5C Wright & Miller, § 1369
(explaining that, while “[t]he granting of a Rule 12(b) motion typically merely means
that the plaintiff has failed to satisfy one of the procedural prerequisites for asserting
3 his claim for relief[,] [a] motion for judgment on the pleadings . . . theoretically is
directed towards a determination of the substantive merits of the controversy”); see also
61A Am. Jur. 2d Pleading § 559 (same).
Therefore, cases that suggest that motions brought under Rule 12(b)(6) and Rule
12(c) are indistinguishable and interchangeable, such as Douglass v. District of
Columbia, 605 F. Supp. 2d 156 (D.D.C. 2009), and Bowman v. District of Columbia,
562 F. Supp. 2d 30, 32 (D.D.C. 2008), have mistakenly overlooked these motions’
markedly different functions, as well as the nuanced distinction between the legal
standards that apply when these motions are considered. To be sure, “the court must
construe the complaint in a light most favorable to the plaintiff and must accept as true
all reasonable factual inferences drawn from well-pleaded factual allegations” with
respect to a motion brought under either rule. Douglass, 605 F. Supp. 2d at 161. But
the alleged facts are accepted as true in the Rule 12(b)(6) context merely to test the
legal sufficiency of the complaint’s allegations standing alone, as explained above,
while the alleged facts are accepted as true under Rule 12(c) for the purpose of
evaluating the movant’s argument that no material dispute of fact exists such that the
court can decide the merits of the case as a matter of law based on the pleadings. See
Kambala v. Checchi & Co. Consulting, Inc., 280 F. Supp. 3d 131, 137 (D.D.C. 2017);
United States v. All Assets Held at Bank Julius, 251 F. Supp. 3d 82, 88 (D.D.C. 2017).
This means that a party seeking judgment on the pleadings under Rule 12(c) must make
a different showing than a defendant who requests that the complaint be dismissed
under Rule 12(b)(6)—i.e., the Rule 12(c) movant must demonstrate that the law entitles
him to win given the undisputed facts that have been alleged in both parties’
4 pleadings—and when considering a motion brought under Rule 12(c), the court must
make a different finding than the mere determination that the plaintiff’s complaint is too
deficient to proceed.
The D.C. Circuit puts it this way: to support a Rule 12(c) motion, “the moving
party [must] demonstrate[] that no material fact is in dispute and that it is entitled to
judgment as a matter of law.” Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d
1365, 1370 (D.C. Cir. 2008); Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C.
Cir. 1987), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006); see
also Lopez v. Nat’l Archives & Records Admin., 301 F. Supp. 3d 78, 84 (D.D.C. 2018)
(noting that the 12(c) standard set out by the D.C. Circuit “comes closer to a summary
judgment type of determination”). Cases in this district routinely recognize the subtle
yet significant distinction between Rule 12(b)(6) and Rule 12(c) motions. See, e.g.,
Tapp, 306 F. Supp. at 383; Kambala, 280 F. Supp. at 137; All Assets Held at Bank
Julius, 251 F. Supp. 3d at 88; Lopez, 301 F. Supp. 3d at 84. And they implicitly
acknowledge that the Rule 12(c) burden is substantial: if the Rule 12(c) movant cannot
show both that there is no material dispute of fact (as reflected in the parties’ pleadings)
and that the law is such that the movant is entitled to judgment as a matter of law, then
the motion for judgment on the pleadings must be denied. See Tapp, 306 F. Supp. at
391 (“To prevail on a Rule 12(c) motion, the moving party must show that no material
issue of fact remains to be solved and that it is entitled to judgment as a matter of law.”
(quoting Judicial Watch, Inc. v. U.S. Dep’t of Energy, 888 F. Supp. 2d 189, 191 (D.D.C.
2012)) (internal quotation marks and alteration omitted)).
5 Here, the Air Force’s pending Rule 12(b)(6) motion to dismiss does not address
the existence or absence of disputed material facts, nor does it attempt to evaluate the
merits of the complaint’s claims in light of existing law. (See, e.g., Mot. to Dismiss,
ECF No. 17, at 5–13 (arguing solely that the complaint fails to state a claim for various
violations under the Privacy Act).) Therefore, this Court cannot accede to the Air
Force’s request that its Rule 12(b)(6) motion to dismiss be converted to a Rule 12(c)
motion for judgment on the pleadings. Instead, the Air Force must reassess its position
and decide whether it wishes to file a Rule 12(c) motion that properly conforms to the
applicable legal requirements, or otherwise move forward to discovery.
II. ORDER
For the reasons stated above, it is hereby
ORDERED that Defendant’s request that this Court treat its Rule 12(b)(6)
motion to dismiss as a Rule 12(c) motion (see ECF No. 18) is DENIED, and it is
FURTHER ORDERED that Defendant’s motion to dismiss (ECF No. 17) is
STRICKEN. If Defendant wishes to, it may file, on or before August 8, 2018, a
revised answer that demonstrates the absence of any material dispute of fact
(presumably by accepting the material allegations of fact in the complaint as true), and
a Rule 12(c) motion that asks the Court to render judgment in its favor as a matter of
law in light of the absence of disputed material facts. In the alternative, the parties are
instructed to file, on or before August 8, 2018, a joint status report proposing three
dates for an Initial Scheduling Conference.
Date: July 18, 2018 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge