Civil Practice – Rule 12(b)(6) motion can’t be granted simply because its unopposed

Where the district court dismissed the plaintiffs‘ complaint simply because they failed to oppose the defendant’s Rule 12(b)(6) motion, it erred. Before granting a Rule 12(b)(6) motion, the court must conclude the factual allegations, assumed as true, fail to state a claim. Mere failure to oppose the motion is an insufficient basis upon which to dismiss the complaint.

Background

Nine professional female models commenced this action against Acuarius Night Club LLC, contending that it had misappropriated images of them from their social media pages and used the images to promote the club and its events without notice to the models, without their consent and without compensation. Acuarius filed a motion to dismiss the plaintiffs’ complaint under Federal Rule of Civil Procedure 12(b)(6), but the plaintiffs failed to respond to this motion within the 14-day period fixed by local rule.

Accordingly, the district court, on its own, dismissed their complaint with a text order. The docket entry shows: “TEXT ORDER granting as unopposed Defendant’s motion to dismiss,” and that is followed by entry of judgment. After unsuccessfully seeking post-judgment relief from the district court, the plaintiffs appealed.

Analysis

The plaintiffs contend first that the district court erred in granting Acuarius’ motion to dismiss “exclusively on the grounds [they] filed no opposition.” The court agrees.

The Federal Rules of Civil Procedure authorize a court to dismiss a complaint when it fails “to state a claim upon which relief can be granted.” Because Rule 12(b)(6) specifies no other ground for granting a motion to dismiss, it follows that it can be granted only if the complaint on its face fails to state a plausible claim upon which relief can be granted.

And vice versa, a motion to dismiss under Rule 12(b)(6) must be denied if the complaint on its face alleges a plausible claim for relief. This textual formulation does not admit of granting a motion to dismiss on the basis that a party failed to respond to it — i.e., the Rule does not provide for default relief for a failure to respond.

A party’s failure to respond may preclude that party from later providing its arguments on the motion, but it does not relieve the court of determining whether the complaint is legally sufficient on its face. That determination can be based only on whether the complaint, with its factual matter, accepted as true states a plausible claim to relief.

This conclusion is consistent with this court’s numerous precedents, as well as precedents of others. If a court could grant a dismissal motion simply because it is unopposed, then “the case is simply not being dismissed because the complaint has failed to state a claim upon which relief may be granted . . . [but] [r]ather . . . as a sanction.” Hence, although the court may treat the bases for dismissal set forth in an unopposed motion to dismiss as “uncontroverted,” it “may not automatically treat a failure to respond to a 12(b)(6) motion as a procedural default.”

Here, the district court granted Acuarius’ motion to dismiss filed under Rule 12(b)(6) because the plaintiffs had failed to timely file a response. In its text order, the court stated that it was “granting as unopposed Defendant’s motion to dismiss.” And it reiterated this ground in its subsequent memorandum opinion denying the plaintiffs’ first post-judgment motion.

Nothing in the record shows that the district court assessed the complaint and determined whether the factual matter alleged in it plausibly stated a claim for relief. Rather, the only reason appearing for granting the motion was the plaintiffs’ failure to file a timely opposition, and that reason does not address the sufficiency of the complaint, as is necessary when deciding such a motion.

Acuarius contends that because the district court dismissed eight counts in the complaint “with prejudice” and one count “without prejudice,” it must have considered the merits of its motion to dismiss. While that might well indicate that the district court read Acuarius’ motion to dismiss, in which Acuarius essentially conceded that Count Three did adequately state a claim, there is no indication that the court determined whether the other counts failed to state a claim upon which relief could be granted.

Finally, Acuarius contends that the plaintiffs did not properly preserve their argument because they failed to raise the issue before the district court in their first post-judgment motion. Acuarius’ argument overlooks the fact that the alleged error here was committed by the district court when entering judgment and taking an appeal from that judgment is all that is necessary to preserve the error for appeal.

Vacated and remanded.

Guzman v Acuarius Night Club LLC, Case No. 24-1555, Feb. 13, 2026. 4th Cir. (Niemeyer), from DSC at Greenville (Austin). John V. Golaszewski for Appellants. Phillip Donald Barber for Appellee. VLW 026-2-047. 11 pp.

Full-Text Opinion

VLW 026-2-047
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