United States Court of Appeals
For the First Circuit
No. 06-1616
ITI HOLDINGS, INC., d/b/a TECHNICAL DIVING
INTERNATIONAL, d/b/a SCUBA DIVING INTERNATIONAL,
d/b/a EMERGENCY RESPONSE DIVING INTERNATIONAL,
Plaintiff, Appellant,
v.
JOSEPH ODOM; DAVID CROCKFORD;
JOSEPH KEISER; MICHAEL ANGE,
Defendants, Appellees.
PROFESSIONAL SCUBA ASSOCIATION, INC.; PROFESSIONAL
SCUBA ASSOCIATION INTERNATIONAL, LLC; HAL WATTS;
JANICE WATTS; TOOLS FOR DIVING EDUCATION, INC.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge, and
Schwarzer,* Senior District Judge.
*
Of the Northern District of California, sitting by
designation.
David G. Concannon with whom Law Offices of David G.
Concannon, Robert E. Mittel and Mittel Asen, LLC were on brief for
appellant.
John G. Osborn with whom Todd S. Holbrook, Bernstein, Shur,
Sawyer & Nelson, and Joseph Odom, pro se, were on briefs for
appellees.
November 14, 2006
SCHWARZER, Senior District Judge. Once again we address
the District of Maine’s Local Rule 7(b) which provides:
Unless within twenty (20) days after the
filing of a motion, the opposing party files
written objection thereto, incorporating a
memorandum of law, the opposing party shall be
deemed to have waived objection.
In NEPSK, Inc. d/b/a Houlton Cable v. Town of Houlton, 283 F.3d 1
(1st Cir. 2002), we upheld the validity of that rule, affirming a
judgment of dismissal pursuant to a motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) to which no
objection had been filed. The case before us presents a slightly
different situation: ITI submitted a response to appellees’ Rule
12(b)(6) motion in the form of a motion to transfer rather than an
objection. The district court granted the Rule 12(b)(6) motion as
unopposed and entered judgment for appellees. We affirm.
I.
Plaintiff ITI Holdings, Inc., provides certification and
training materials to the scuba markets. It brought this action
against a group of competitors in the scuba market alleging
tortious interference with contractual relations and other business
torts. All defendants moved to dismiss under Federal Rule of Civil
Procedure 12(b)(2) for lack of personal jurisdiction, which was
granted as to certain of the defendants but denied as to defendants
and appellees Joseph Odom, David Crockford, Joseph Keiser and
Michael Ange. That ruling has not been appealed. The appellees
-3-
also moved to dismiss under Rule 12(b)(6) for failure to state a
claim. ITI did not file an objection to that motion, filing
instead a motion to transfer to the Middle District of Florida.
The court treated the Rule 12(b)(6) motion as unopposed and
dismissed the complaint as to appellees under Local Rule 7(b). ITI
appeals from the judgment of dismissal.
II.
ITI’s principal argument is that the district court
abused its discretion in automatically dismissing the complaint
without considering the standard governing the granting of Rule
12(b)(6) motions. Such motions, ITI argues, may be granted only
if it appears to a certainty that plaintiff would be unable to
recover under any set of facts. It seeks to analogize its case to
Jaroma v. Massey, 873 F.2d 17 (1st Cir. 1989) (per curiam), which
held it to be error to grant a summary judgment motion based
solely on the opposing party’s failure to respond to the motion,
noting that under Rule 56, the motion must be denied even if
unopposed where the supporting evidence does not establish the
absence of a genuine issue. Id. at 20. We rejected this analogy
in Town of Houlton in the context of a Rule 12(c) motion, pointing
out that unlike Rule 56, nothing in the text of Rule 12(c) compels
the court to apply any particular standard when deciding whether
to grant or deny a motion for judgment on the pleadings. 283 F.3d
at 8-9. The same is true of Rule 12(b)(6): Nothing in its text
-4-
compels the court to apply any particular standard in deciding
whether to grant or deny a motion. Thus, our holding in Town of
Houlton that strict enforcement of Local Rule 7(b) creates no
impermissible conflict with Rule 12(c) applies with equal force to
Rule 12(b)(6). Id. at 9.
III.
ITI next contends that the district court abused its
discretion in failing to find excusable neglect or considering
whether dismissal was in the interest of justice. It argues that
it filed a timely response by filing a motion to transfer venue in
which, rather than objecting to the Rule 12(b)(6) motion, it
asserted that it “intend[ed] to file an amended complaint as a
matter of right.” We find its arguments unpersuasive.
To begin with, the argument rests on quicksand because
ITI, not having moved the district court under Federal Rule of
Civil Procedure 60(b) for relief from the dismissal order,
arguably forfeited its right to charge that court with abuse of
discretion. ITI says it should at least have been granted leave
to respond to the Rule 12(b)(6) motion, but again, it never
requested leave. Moreover, as a textual matter, ITI’s “response”
in the form of a venue transfer motion does not comply with Local
Rule 7(b), which requires the filing of written objection to the
motion incorporating a memorandum of law. Finally, that ITI may
have intended to file an amended complaint hardly supports a claim
-5-
of excusable neglect, considering that it failed to file one (or
move for leave to file one) in the ten-week period between its
receipt of appellees’ motion to dismiss and the issuance of the
magistrate judge’s recommended decision.
As we stated in Town of Houlton, “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 result
does not clearly offend equity.” 283 F.3d at 7. ITI has not
shown either that the district court automatically dismisses cases
every time the local rule is violated or that the dismissal of its
complaint offends equity.
IV.
ITI’s final argument is that the district court lacked
jurisdiction to dismiss the tort claims. It argues that the
magistrate judge found sufficient evidence to support personal
jurisdiction over appellees Ange, Crockford and Keiser only with
respect to the contract claims. Therefore, it contends, the court
lacked jurisdiction to dismiss the tort claims against these
appellees.
We reject the argument. The magistrate judge
recommended that the motion to dismiss for lack of personal
jurisdiction be denied in its entirety as to appellees and the
district court so ordered. Thus, the appellees were obliged to
-6-
plead to all of ITI’s claims alleged in its complaint and they did
so by filing their Rule 12(b)(6) motion, bringing Local Rule 7(b)
into play.
Affirmed. Costs to be awarded to appellees.
-7-