United States Court of Appeals
For the First Circuit
No. 03-1963
GULF COAST BANK & TRUST COMPANY,
Plaintiff, Appellee,
v.
GERARD S. REDER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Jack E. Houghton, Jr., on brief for appellant.
Jennifer G. Haskell, Steven A. Ablitt and Ablitt & Caruolo, PC
on brief for appellee.
January 16, 2004
SELYA, Circuit Judge. Defendant-appellant Gerard S.
Reder invites us to set aside a judgment entered in favor of
plaintiff-appellee Gulf Coast Bank & Trust Company (Gulf Coast).
Concluding, as we do, that Reder's appeal lacks merit, we decline
the invitation.
This case had its genesis in a $150,000 loan made on
March 1, 2000, by Bank of America to Armored Car Services of
Florida, Inc. (ACS). The loan was memorialized by a promissory
note and secured by Reder's personal guarantee. Bank of America
subsequently assigned the note and guarantee to Gulf Coast.
ACS defaulted on the note and Gulf Coast's demands for
payment by the guarantor fell on deaf ears. Invoking diversity
jurisdiction, 28 U.S.C. § 1332(a), Gulf Coast sued Reder on the
guarantee in the United States District Court for the District of
Massachusetts. Reder answered the complaint. On January 13, 2003,
Gulf Coast moved for judgment on the pleadings. See Fed. R. Civ.
P. 12(c). It supported the motion with exhibits evidencing the
antecedent transactions and defaults. Reder failed to file a
timely response, D. Mass. R. 7.1(B)(2), and the district court
granted the motion on January 31, 2003.
The entry of this default order served to awaken Reder
from his slumber. He filed a dual-purpose motion in which he
sought both an extension of the time within which to file an
opposition to Gulf Coast's original motion and reconsideration of
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the default order. On February 21, 2003, the district court
granted the extension, accepted Reder's opposition, reconsidered
its earlier order in light of the opposition, and again awarded
Gulf Coast judgment on the pleadings. Reder's opposition had taken
the form of a memorandum devoid of any affidavits or other
evidentiary attachments, and the court found it "inadequate to
counter plaintiff's well supported motion."
The February 21 order only resolved the liability aspect
of the case. Accordingly, the court referred the matter to a
magistrate judge for an assessment of damages. The magistrate
judge held a hearing and made recommended findings. The district
court accepted the findings and, on June 6, 2003, entered final
judgment in favor of Gulf Coast for $217,076.62 (a figure that
included unpaid principal and interest, attorneys' fees, and
collection costs). This timely appeal ensued.
In this venue, Reder does not directly contest the
assessment of damages. Rather, his appeal stands or falls on his
claim that the lower court applied an incorrect legal standard in
adjudicating liability. We believe that it falls.
Reder's thesis is simple. In his view, a motion for
judgment on the pleadings may be granted only when the pleadings,
taken at face value, leave no material facts in dispute. That
standard is not satisfied here, he contends, because his answer to
the complaint denied several essential elements of Gulf Coast's
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case (e.g., the authenticity of the note and guarantee, the
relationship between the two, the validity of the assignment, and
the fact of non-payment). He concludes that these denials (along
with the assertion of a litany of affirmative defenses) sufficed to
create factual disputes that precluded the entry of judgment on the
pleadings.
We review a trial court's entry of judgment on the
pleadings de novo. Feliciano v. Rhode Island, 160 F.3d 780, 788
(1st Cir. 1998). The starting point for our analysis is the text
of Federal Rule of Civil Procedure 12(c).1 That rule permits a
party to move for judgment on the pleadings at any time "[a]fter
the pleadings are closed," as long as the motion does not delay the
trial. Fed. R. Civ. P. 12(c). In the archetypical case, the fate
1
In their briefs, the parties sometimes refer to Massachusetts
standards for granting or denying judgment on the pleadings. Their
reliance on state-law standards is misplaced. As we recently
explained:
Federal courts sitting in diversity apply
state substantive law and federal procedural
rules. . . . [Such] classification is
generally a straightforward exercise when a
Federal Rule of Civil Procedure covers the
point.
Correia v. Fitzgerald, ___ F.3d ___, ___ (1st Cir. 2003) [No. 02-
1417, slip op. at 10]. A motion for judgment on the pleadings is
a procedural device directly governed by Civil Rule 12(c).
Accordingly, federal courts, whether or not sitting in diversity,
must look to federal law to deduce the standards for deciding such
motions. See, e.g., Enron Oil & Trading Transp. Co. v. Walbrook
Ins. Co., 132 F.3d 526, 528-29 (9th Cir. 1997); Rivera-Gomez v.
Adolfo de Castro, 843 F.2d 631, 635 (1st Cir. 1988); Repub. Steel
Corp. v. Pa. Eng'g Corp., 785 F.2d 174, 177-78 (7th Cir 1986).
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of such a motion will depend upon whether the pleadings, taken as
a whole, reveal any potential dispute about one or more of the
material facts. See 5 Charles A. Wright et. al., Federal Practice
& Procedure § 1367, at 509-10 (2d ed. 1995) (collecting cases); see
also Feliciano, 160 F.3d at 788. This is essentially the test that
Reder exhorts us to apply in the instant case.
We resist Reder's exhortations. Where a motion for
judgment on the pleadings introduces materials dehors the record
for the court's consideration, the ground rules change. In that
event, the court has broad discretion either to include or to
exclude the proffer. So long as the court does not exclude the
tendered materials, the summary judgment standard governs the
disposition of the motion. See Collier v. City of Chicopee, 158
F.3d 601, 602-03 (1st Cir. 1998); see also Fed. R. Civ. P. 12(c)
("If, on a motion for judgment on the pleadings, 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 a salient distinction because
Rule 56 erects a hurdle for the nonmovant that is far more
difficult to clear than the relatively modest hurdle posed by Rule
12(c) simpliciter. 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 party opposing the motion demonstrates, by
competent evidence, a genuine issue of material fact).
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The summary judgment standard is controlling here. After
the pleadings were closed, Gulf Coast filed a Rule 12(c) motion
that relied upon, and incorporated by reference, a plethora of
evidentiary submissions. In response, Reder filed only a
memorandum of law. The district court elected to convert the
motion and decide it as one for summary judgment. While such a
conversion cannot take place unless "the party opposing the motion
is given adequate notice of the conversion and a reasonable
opportunity to present material made pertinent to such a motion by
Rule 56," Collier, 158 F.3d at 603, that protocol was fully
satisfied here.
First, Reder was on notice of the potential for
conversion. Although the district court did not give him explicit
notice of its willingness to indulge Gulf Coast's proffer, the act
of attaching outside materials to a Rule 12(c) motion affords the
nonmovant constructive notice that the court may, if it so chooses,
apply the summary judgment standard. See id.; see also Rodriguez
v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir. 1997). Express
notice is not required.
Second, Reder had ample time in which to present evidence
in opposition. Gulf Coast filed its motion for judgment on the
pleadings on January 13 and the district court took no action with
respect thereto until January 31. This interval exceeded the ten-
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day period specified in Rule 56(c). No more was exigible.2 The
conversion, therefore, was well within the compass of the district
court's discretion. See Fed. R. Civ. P. 12(c); see also Collier,
158 F.3d at 603.
Our only remaining task is to determine whether the
record supports the entry of judgment under the incorporated Rule
56 standard. Summary judgment is authorized "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Once
the movant has served a properly supported motion asserting
entitlement to summary judgment, the burden is on the nonmoving
party to present evidence showing the existence of a trialworthy
issue. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986);
Garside, 895 F.2d at 48.
In this instance, Gulf Coast's evidentiary proffers
covered the essential elements of its case. In other words, Gulf
Coast submitted a motion which, when read in conjunction with the
attachments, showed prima facie that the debt was due and owing;
that Reder had guaranteed its repayment; that Gulf Coast was a
holder in due course; and that timeous demands for satisfaction had
2
In all events, Reder also had the benefit of a further
extension granted by the district court on February 21, 2003.
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been ignored. Reder produced no evidence to the contrary. He
relied instead on the denials and affirmative defenses in his
answer and the arguments in his legal memorandum opposing the
motion. It is, however, crystal clear that bare allegations in a
party's unsworn pleadings or in a lawyer's brief do not carry
weight in the summary judgment calculus. See, e.g., Rogan v. City
of Boston, 267 F.3d 24, 29 (1st Cir. 2001); Maldonado-Denis v.
Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). Thus, the
district court correctly treated the facts limned in the
attachments to Gulf Coast's motion as uncontradicted. Anderson,
477 U.S. at 248; Garside, 895 F.2d at 48. It follows inexorably
that the lower court did not err in granting Gulf Coast's motion
for judgment on the issue of liability. See Collier, 158 F.3d at
604.
We need go no further. This case is a textbook example
of the conversion principle embedded in Rule 12(c). Once Reder had
notice that the court might indulge such a conversion, he had to
show, by competent evidence, that a trialworthy issue existed. He
made no such showing. In the final analysis, then, this case
reminds us that "parties who permit the movant to configure the
summary judgment record do so at their peril." Woods-Leber v.
Hyatt Hotels of P.R., Inc., 124 F.3d 47, 51 (1st Cir. 1997) (citing
United States v. Kelly, 924 F.2d 355, 358 (1st Cir. 1991)). Under
the circumstances, Reder has no cognizable grounds for appeal.
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Affirmed.
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