Submitting a Certification in Support of a Motion to Dismiss a Complaint Converts The Motion to a Summary Judgment Motion

Raverta v. Lake Mohawk Golf Club, 2011 WL 3207945 (App. Div. July 29, 2011).  Rule 4:6-2(e) allows a defendant to move to dismiss a complaint for failure to state a claim.  That Rule contemplates, however, that (with some exceptions not relevant here, such as judicially noticeable matters or documents referred to in the complaint but not attached to it) the only material before the motion judge, besides briefs, will be the complaint itself.  The idea of a motion to dismiss is that the complaint itself, even with all of its factual allegations accepted as true, shows that the law does not permit a case to go forward.

Rule 4:6-2(e) states, however, that if “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion.”  In this case, defendant moved to dismiss the complaint but supported that motion with a certification and attached exhibits.  Though this required the motion to be treated as one for summary judgment, the motion judge did not do that.  Nor, apparently, did the parties submit statements of material facts as required by Rule 4:46-2(a) and (b). 

Instead, the parties and the motion judge proceeded as though the motion was still a motion to dismiss under Rule 4:6-2(e).  The judge granted defendant’s motion, “making fact-findings based on the documents presented to him and dismissing plaintiff’s amended complaint in its entirety.  The judge did not discuss the application of Rule 4:46 to the motion before him and did not review the law applicable to the disposition of summary judgment motions.”

Plaintiff appealed.  The Appellate Division (Judges Grall and Miniman) reversed in a per curiam opinion.  Because defendant submitted materials beyond the pleading, and the motion judge relied on those materials, the case was required to be analyzed as a summary judgment motion.  That meant that the motion judge should have considered “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact[-]finder to resolve the alleged disputed issue in favor of the non-moving party,” with all inferences given in favor of the non-moving party.  “This was not done.” 

Nor was plaintiff given a chance to “present all material pertinent to such a motion.”  Plaintiff had no notice that the motion was anything other than a motion to dismiss under Rule 4:6-2(e), on which he too could not go beyond his pleading.

The panel remanded the case.  “Defendants may pursue dismissal of the complaint either under Rule 4:6-2(e) without submitting any matters outside the pleading or they may seek a summary judgment and comply with all of the requirements of Rule 4:46 and the cases construing it.”

As noted above, Rule 4:6-2(e) gives a motion judge the option to exclude the material beyond the pleading and then to treat the matter as a motion to dismiss.  If that happens, no statements of material fact under Rule 4:46 are needed.  It may be best for a motion judge who intends not to exclude matters outside the pleadings to advise the parties of that intent so that they can then file Rule 4:46-2 statements.  If the parties do not do that after being so notified, criticism of them for failing to do so would then be justified. 

The best advice, however, is for a movant under Rule 4:6-2(e) to stay within the pleading and the permitted exceptions.  If a party wishes to rely on other material, the party should file a summary judgment motion and comply with Rule 4:46.