Reply or Perish: The Federal Rule 83(a)(1) Problem with Local Rules Requiring Responses to 12(b)(6) Motions

March 4, 2022

The federal courts of appeals are divided over whether district courts have the legal authority to grant Federal Rule of Civil Procedure 12(b)(6) motions to dismiss solely for lack of reply pursuant to local rules requiring responses to motions. Seven circuits hold that district courts must always consider the merits of an unopposed Rule 12(b)(6) motion to dismiss. However, the First and D.C. Circuits allow district courts to dismiss Rule 12(b)(6) motions for lack of response pursuant to local rules in certain circumstances. The majority view is that the use of these local rules in the First and D.C. Circuits effectively shifts the Rule 12(b)(6) movants’ burden of proof onto the nonmovant and thus violates Federal Rule of Civil Procedure 83(a)(1)’s requirement of consistency between federal and local rules.

This Note examines this split and the federal and local rules issues underlying the circuits’ diverging holdings. This Note then proposes a bifurcated solution, implemented through either the adoption of a model local rule or the interpretation of existing local rules as implicitly adopting the solution. First, district courts may grant Rule 12(b)(6) motions to dismiss solely for lack of response pursuant to a local rule only when dismissed without prejudice. However, when dismissing with prejudice, courts must conduct an analysis of the underlying merits. This solution aims to bring these local rules into compliance with Rule 83(a)(1) and give litigants and courts alike uniform expectations when parties fail to respond to Rule 12(b)(6) motions to dismiss.

March 2022

No. 4