Arizona Court of Appeals, Division Two holds that trial court has broad discretion to tailor a “reasonable opportunity” to present evidence when converting motions to dismiss.

In a dispute involving competing claims to a fee collected from guests at a resort, the defendants filed a motion to dismiss under Arizona Rule of Civil Procedure 12(b)(6), and attached evidence not referenced in the complaint. Under Rule 12(d), the superior court converted the motion to a motion for summary judgment. Rule 12(d) provides that, “[i]f, on a motion under Rule 12(b)(6) or (c), matters outside the pleadings are presented to, and not excluded by, the court, the motion must be treated as one for summary judgment under Rule 56.” But the Rule also requires “[a]ll parties [to] be given a reasonable opportunity to present all the material that is pertinent to the motion.” Interpreting this “reasonable opportunity” requirement, the trial court allowed the parties to file supplemental memoranda and evidence and granted the defendants summary judgment.

The court of appeals affirmed. The plaintiff/appellant contended that a “reasonable opportunity” required that: (1) the defendants file an answer to the complaint; (2) discovery be allowed; and (3) the parties file separate statements of fact under Rule 56(c)(3). The court of appeals rejected all these arguments.

First, the court of appeals held that an answer is not required by Rule 12(d), because a motion to dismiss tolls the answer deadline. See Ariz. R. Civ. P. 12(a)(2)(A) (setting deadline for responsive pleading after motion to dismiss is denied). Simply by authorizing conversion, the Court explained, Rule 12(d) implies that the superior court can convert the motion before an answer is filed. Rule 12(h), which allows defendants to raise failure to state a claim after the answer is filed, also doesn’t impose this requirement.

Next, the Court rejected the plaintiff’s argument that conversion is improper without discovery, pointing to Rule 26.1(f)(1) (prohibiting discovery until after party serves responsive pleading and initial disclosure), as well as Rule 7 (omitting motions from enumerated list of pleadings). Moreover, the Court explained, the parties can seek discovery after conversion, but the plaintiff failed to do so here. See Ariz. R. Civ. P. 56(d)(1) (allowing expedited relief when a party “cannot present evidence essential to justify its opposition” to summary judgment).

Finally, the Court found that no cited authority supported the plaintiff’s argument that a “reasonable opportunity” requires separate statements of fact when a motion to dismiss is converted under Rule 12(d).

After rejecting requirements not imposed by Rule 12(d), the Court concluded that trial courts have broad discretion to tailor a “reasonable opportunity” to a particular case’s needs. The superior court acted within its discretion here by allowing the parties to file supplemental memoranda and evidence after converting the motion.

Judge Sklar authored the opinion, in which Vice Chief Judge Staring and Judge O’Neil joined.

Posted by: Allie Karpurk