United States Court of Appeals
For the First Circuit
No. 03-1740
NATHAN P., ROBERT POMERLEAU,
and ELIZABETH POMERLEAU,
Plaintiffs, Appellants,
v.
WEST SPRINGFIELD PUBLIC SCHOOLS
and THE TOWN OF WEST SPRINGFIELD,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.
Derek M. Beaulieu for appellants.
Regina Williams Tate, with whom Kimberly A. Mucha and Murphy,
Hesse, Toomey, and Lehane were on brief for appellees.
April 2, 2004
_____________________
*Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. Nathan P. and his parents,
Elizabeth and Robert Pomerleau, appeal from the judgment of the
district court dismissing their suit for attorney's fees and costs
under the Individuals with Disabilities Education Act ("IDEA"), 20
U.S.C. § 1400 et seq., for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6). Having failed to oppose the defendants'
motions to dismiss or file any post-judgment motion seeking
reconsideration of the district court's decision, the Pomerleaus
now challenge on the merits the district court's dismissal of their
case. Adhering to our well-established rule that legal issues not
presented before the district court may not be advanced for the
first time on appeal, we affirm the decision of the district court.
I.
Nathan P. is a student with disabilities within the
meaning of the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. § 1400 et seq. In May 2001, West Springfield
Public Schools developed an individualized education plan ("IEP")
for Nathan P. Nathan's parents, Elizabeth and Robert Pomerleau,
rejected that IEP and notified the school district that they were
enrolling Nathan P. at the Curtis Blake Day School. On August 2,
2001, the Pomerleaus requested a hearing before the Bureau of
Special Education Appeals ("BSEA"), seeking a declaratory judgment
that the Curtis Blake Day School was the appropriate placement for
Nathan P. and reimbursement for the cost of Nathan's tuition at
that school for 2001-2002.
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A BSEA hearing officer conducted a hearing on April 11,
and May 22, 24, and 29 of 2002. On August 15, 2002, the BSEA
issued a decision in favor of the Pomerleaus. The defendants did
not appeal that decision. On February 10, 2003, the Pomerleaus
filed a claim in the United States District Court for the District
of Massachusetts for attorney's fees and costs pursuant to the fee
shifting provision of the IDEA.
On March 12, 2003, West Springfield Public Schools filed
a motion to dismiss for failure to state a claim under Fed. R. Civ.
P. 12(b)(6). The Town of West Springfield concurred and joined the
motion on April 8, 2003, when it filed its motion to dismiss. The
defendants alleged that the plaintiffs' IDEA claim for attorney's
fees was analogous to an appeal of an administrative decision and
therefore was time barred by the 30-day statute of limitations that
governs such appeals under Massachusetts law. The defendants
further argued that the plaintiffs' claims were precluded because
they were based on the decision of a BSEA hearing officer, which
was not a judicially sanctioned change as required by the fee-
shifting statute. Finally, they urged the district court to
dismiss the plaintiffs' claim for expert witness fees, arguing that
the IDEA did not authorize courts to make such awards. The
Pomerleaus never responded to or opposed the defendants' motions to
dismiss.
The district court granted West Springfield Public
Schools' motion to dismiss on May 1, 2003, noting that "[w]hile the
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law in this area is not crystal clear, defendant's arguments are
colorable, and no opposition has been filed." On May 7, 2003, the
district court granted the Town of West Springfield's motion to
dismiss "based on the lack of opposition and the force of the
defendant's arguments." The court ordered judgment of dismissal in
favor of both of the defendants on May 7, 2003. Without filing a
post-judgment motion seeking reconsideration of the judgment in the
district court, the Pomerleaus filed this appeal.
II.
We have some concerns about the brief dismissal orders of
the district court because we are unable to determine the precise
grounds for dismissal. Although the court referred generally to
the "force" and "colorable" nature of the defendants' arguments, it
did not analyze these arguments or explain the basis for its
conclusion that the Pomerleaus had failed to state a claim upon
which relief could be granted. It noted in the first order that
"no opposition has been filed" and in the second that dismissal was
"based on the lack of opposition" as well as the strength of the
defendant's arguments. Under these circumstances, it appears that
the dismissals were, to an uncertain extent, a sanction for the
plaintiffs' failure to file an opposition.
A district court may grant a 12(b)(6) motion to dismiss
for failure to state a claim upon which relief can be granted only
if "it clearly appears, according to the facts alleged, that the
plaintiff cannot recover on any viable theory." Correa-Martinez v.
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Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990). When deciding
a 12(b)(6) motion, "the mere fact that a motion to dismiss is
unopposed does not relieve the district court of the obligation to
examine the complaint itself to see whether it is formally
sufficient to state a claim." Vega-Encarnacion v. Babilonia, 344
F.3d 37, 41 (1st Cir. 2003). This obligation means that a court
may not automatically treat a failure to respond to a 12(b)(6)
motion as a procedural default. See Pinto v. Universidad de Puerto
Rico, 895 F.2d 18, 19 & n.1 (1st Cir. 1990) (rejecting defendants'
argument that "a court may, without notice, take a failure to
respond to a motion to dismiss as a default, warranting dismissal
irrespective of substantive merit"); see also Issa v. Comp USA, 354
F.3d 1174, 1177 (10th Cir. 2003); McCall v. Pataki, 232 F.3d 321,
323 (2d Cir. 2000).1
On the other hand, we have held that "it is within the
district court's discretion to dismiss an action based on a party's
unexcused failure to respond to a dispositive motion when such
response is required by local rule, at least when the response does
not clearly offend equity." NEPSK, Inc. v. Town of Houlton, 283
F.3d 1, 7 (1st Cir. 2002); see Pinto, 895 F.2d at 19 & n.1 (noting
that a court may treat the failure to respond to a motion to
1
While a district court retains discretion to dismiss a
plaintiff's action under Fed. R. Civ. P. 41(b) for failure to
prosecute, lack of response to a motion to dismiss does not,
without more, justify this severe sanction. See Pomales v.
Celulares Telefonica, Inc., 342 F.3d 44, 48 (1st Cir. 2003).
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dismiss as a procedural default "where a court had ordered a
memorandum, and of course, cases where a response was required by
rule") (citations omitted). Where a local rule expressly requires
a response to a motion, the non-moving party is placed on notice
that failure to respond could result in a procedural default. See
Pinto, 895 F.2d at 19 & n.1. In such cases, the local rule
provides the basis for dismissal rather than Fed. R. Civ. P.
12(b)(6), which does not on its own terms require a response to a
motion to dismiss. Where a district court grants an unopposed
motion to dismiss pursuant to a local rule that requires a
response, we will uphold the sanction provided that it does not
offend equity or conflict with a federal rule. See NEPSK, 283 F.3d
at 7.
In this case, however, we are unsure whether the district
court relied on a local rule in dismissing the Pomerleaus'
complaint, as it did not refer to such a rule in its order. In
addition, it is not clear whether the Local Rules for the District
of Massachusetts require a non-moving party to respond to a motion
to dismiss. Our caselaw points in different directions on this
question. See Mullen v. St. Paul Fire & Marine Ins. Co., 972 F.2d
446, 451 (1st Cir. 1992) (finding that the District of
Massachusetts local rules do not require a response to a
dispositive motion); but see Corey v. Mast Rd. Grain & Bldg.
Materials Co., 738 F.2d 11, 12 (1st Cir. 1984) (holding that the
local rules do require a response).
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Despite our concerns with the district court's orders, we
need not decide whether the district court acted appropriately in
dismissing the plaintiffs' complaint because the plaintiffs failed
to raise below the issues that they now argue on appeal. "If any
principle is settled in this circuit, it is that, absent the most
extraordinary circumstances, legal theories not raised squarely in
the lower court cannot be broached for the first time on appeal."
Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59
v. Superline Transp. Co. et al., 953 F.2d 17, 21 (1st Cir. 1992);
see Beaulieu v. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989) ("[I]t is
a party's first obligation to seek any relief that might fairly
have been thought available in the district court before seeking it
on appeal."). The circumstances in this case were hardly
extraordinary. The defendants each filed a motion to dismiss, and
the district court considered and granted these motions, yet the
Pomerleaus neither opposed the motions nor sought reconsideration
of the district court's judgment pursuant to Fed. R. Civ. P. 59(e)
or 60(b).
If a response to a motion to dismiss is not required by
a local rule, yet the court wrongly grants the motion to dismiss
because of the plaintiff's procedural default, a plaintiff who has
suffered an improper dismissal order may challenge the court's
procedural error by filing a motion to alter or amend the judgment
under Fed. R. Civ. P. 59(e). Given our clearly stated law that the
district court has an obligation to examine the complaint itself to
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determine the legal sufficiency, such a procedural default ruling
would be a manifest error of law. If the district court considers
the merits of the unopposed motion to dismiss as it should and errs
in its analysis, the plaintiff may also raise a claim of error
through a Rule 59(e) motion.2 Where a response is required by a
local rule, a plaintiff may still file a timely motion to set aside
the judgment pursuant to Fed. R. Civ. P. 60(b), on the ground that
its earlier default was due to excusable neglect. See, e.g.,
United States v. Sea Scallops, 857 F.2d 46, 48-49 (1st Cir. 1988).
Thus, a party who fails to object to a motion to dismiss must raise
any claims of error by filing the appropriate post-judgment motion,
or forfeit his or her right to raise those claims before this
court. See Rocofort v. IBM Corp., 334 F.3d 115, 122 (1st Cir.
2002); MCI Telecomms. Corp. v. Matrix Communs. Corp., 135 F.3d 27,
2
Of course, Rule 59(e) "does not provide a vehicle for a party
to undo its own procedural failures" or to "advance arguments that
could and should have been presented to the district court prior to
judgment." See Dimarco-Zappa v. Cabanillas, 328 F.3d 25, 34 (1st
Cir. 2001). That a district court may not, without notice, dismiss
the plaintiff's complaint as a sanction for the failure to file an
opposition does not mean that the non-responding plaintiff is
relieved of his or her duty "to incorporate all relevant arguments
in the papers that directly address a pending motion." CMM Cable
Rep., Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1526 (1st
Cir. 1994). Thus, a plaintiff who fails to raise any substantive
legal arguments prior to the dismissal of his or her complaint is
appropriately limited under Rule 59(e) to challenging the court's
decision as a manifest error of law. See FDIC v. World Univ. Inc.,
978 F.2d 10, 16 (1st Cir. 1992) ("Motions under Rule 59(e) must
either clearly establish a manifest error of law or must present
newly discovered evidence.").
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33 (1st Cir. 1998). To hold otherwise would undermine the ability
of the district courts to serve as an effective and efficient forum
for the resolution of disputes.
Therefore, because the Pomerleaus failed to raise any
arguments before the district court either in an opposition to the
defendants' 12(b)(6) motions or by filing a timely, post-judgment
motion, they are foreclosed from advancing their arguments on
appeal.3 Consequently, the decision of the district court
dismissing the plaintiffs' complaint is affirmed.
So ordered.
3
In addition, the plaintiffs have not argued before us that
the district court improperly dismissed their complaint as a
sanction for failure to oppose, raising only the substantive issues
presented by the defendants' motions to dismiss. Therefore, even
if this procedural issue had not been forfeited by the plaintiffs'
failure to raise it in the district court, we would be inclined to
consider it waived by their failure to raise it on appeal. See
King v. Town of Hanover, 116 F.3d 965, 970 (1st Cir. 1997).
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