                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

                             )
JAMES MICHAEL MURPHY,        )
                             )
        Plaintiff,           )
                             )
        v.                   )                  No. 17-cv-1911 (KBJ)
                             )
DEPARTMENT OF THE AIR FORCE, )
                             )
        Defendant.           )
                             )


                      MEMORANDUM OPINION AND ORDER

      Plaintiff James Murphy filed the instant case against the Department of the Air

Force (“Air Force” or “Defendant”) on September 18, 2017, alleging that the Air Force

has violated his rights under the Privacy Act, 5 U.S.C. § 552a, and seeking, inter alia,

monetary damages and an order to expunge certain records in the Air Force’s

possession. (See generally Compl., ECF No. 1.) The Air Force opted to file an answer

to Murphy’s complaint, and then subsequently moved to dismiss the complaint under

Rule 12(b)(6). (See ECF Nos. 5, 7, 17.) After this Court pointed out the impropriety of

this maneuver under the Federal Rules of Civil Procedure (see Min. Order of June 26,

2018), the Air Force responded by asserting that “the Court could simply treat

defendant’s motion [to dismiss] as a motion for judgment on the pleadings” under Rule

12(c), rather than striking the motion to dismiss and requiring the filing of a new

motion for judgment on the pleadings (see Def.’s Response to Order to Show Cause

(“Def.’s Resp.”), ECF No. 18, at 2). For the reasons explained below, Defendant is

mistaken. Rule 12(b)(6) motions to dismiss and Rule 12(c) motions for judgment on the




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pleadings are distinct procedural vehicles that cannot be seamlessly substituted for one

another. See Tapp v. Washington Metro. Area Transit Auth., 306 F. Supp. 3d 383, 391–

92 (D.D.C. 2016). As a result, the Air Force’s request for the conversion of its Rule

12(b)(6) motion into a Rule 12(c) motion must be DENIED, and its Rule 12(b)(6)

motion (which was improperly filed after the answer) must be STRICKEN. If

Defendant wishes to move for judgment on the pleadings under Rule 12(c), it may

revise its answer as necessary and file a Rule 12(c) motion that comports with the

standards that govern such a motion under D.C. Circuit case law.

       I.     DISCUSSION

       The distinction between a motion brought under Rule 12(b)(6) and a motion

brought under Rule 12(c) is more than “‘merely semantic[.]’” (Def.’s Resp. at 2

(quoting Douglass v. District of Columbia, 605 F. Supp. 2d 156, 161 (D.D.C. 2009)).)

Rule 12 plainly contains two different provisions, which in itself suggests that this Rule

authorizes two distinct means of challenging a plaintiff’s legal action. A proper motion

brought under either rule must necessarily reflect the differences in “their respective

scope and effect.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 1369 (3d ed. 2004) [hereinafter Wright & Miller].

       Stated simply, a Rule 12(b)(6) motion is “a method of testing the sufficiency of

the statement of the claim for relief[,]” 5B Wright & Miller, § 1349; as such, it is filed

before any responsive pleading. See Fed. R. Civ. P. 12(b) (“A motion asserting any of

these [12(b)] defenses must be made before pleading if a responsive pleading is

allowed.”). A defendant who opts to proceed under Rule 12(b)(6) in lieu of filing an

answer thereby contends that the complaint “fails to state a claim upon which relief can

be granted[,]” Fed. R. Civ. P 12(b)(6), and it is precisely because such a motion is


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focused solely on the insufficiency of the complaint’s allegations—as opposed to their

accuracy—that the defendant must accept the allegations of the complaint as true as a

prerequisite to sustaining his contention that the complaint’s allegations are unavailing

nonetheless, see 5B Wright & Miller, § 1357.

       By contrast, a motion for judgment on the pleadings under Rule 12(c) relates to

the merits of the claims in the complaint; it “has its historical roots in common law

practice, which permitted either party, at any point in the proceeding, to demur to his

opponent’s pleading and secure a dismissal or final judgment on the basis of the

pleadings.” 5C Wright & Miller, § 1367. A Rule 12(c) motion is thus filed after the

defendant has submitted an answer, see Fed. R. Civ. P. 12(c), and such a motion relies

on both sets of pleadings (i.e., the plaintiff’s complaint and the defendant’s answer) to

support an argument made by either party about the merits of the dispute at hand.

       Importantly, not only does a Rule 12(c) motion differ in substance, it also

demands a different response from the court: unlike a Rule 12(b)(6) motion, a Rule

12(c) motion asks the court to render “a judgment on the merits . . . by looking at the

substance of the pleadings and any judicially noted facts.” All. of Artists & Recording

Cos., Inc. v. Gen. Motors Co., 162 F. Supp. 3d 8, 16 (D.D.C. 2016) (internal quotation

marks and citation omitted). Thus, a Rule 12(c) motion requires the court to consider

and decide the merits of the case, on the assumption that the pleadings demonstrate that

there are no meaningful disputes as to the facts such that the complaint’s claims are ripe

to be resolved at this very early stage in the litigation. See 5C Wright & Miller, § 1369

(explaining that, while “[t]he granting of a Rule 12(b) motion typically merely means

that the plaintiff has failed to satisfy one of the procedural prerequisites for asserting




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his claim for relief[,] [a] motion for judgment on the pleadings . . . theoretically is

directed towards a determination of the substantive merits of the controversy”); see also

61A Am. Jur. 2d Pleading § 559 (same).

       Therefore, cases that suggest that motions brought under Rule 12(b)(6) and Rule

12(c) are indistinguishable and interchangeable, such as Douglass v. District of

Columbia, 605 F. Supp. 2d 156 (D.D.C. 2009), and Bowman v. District of Columbia,

562 F. Supp. 2d 30, 32 (D.D.C. 2008), have mistakenly overlooked these motions’

markedly different functions, as well as the nuanced distinction between the legal

standards that apply when these motions are considered. To be sure, “the court must

construe the complaint in a light most favorable to the plaintiff and must accept as true

all reasonable factual inferences drawn from well-pleaded factual allegations” with

respect to a motion brought under either rule. Douglass, 605 F. Supp. 2d at 161. But

the alleged facts are accepted as true in the Rule 12(b)(6) context merely to test the

legal sufficiency of the complaint’s allegations standing alone, as explained above,

while the alleged facts are accepted as true under Rule 12(c) for the purpose of

evaluating the movant’s argument that no material dispute of fact exists such that the

court can decide the merits of the case as a matter of law based on the pleadings. See

Kambala v. Checchi & Co. Consulting, Inc., 280 F. Supp. 3d 131, 137 (D.D.C. 2017);

United States v. All Assets Held at Bank Julius, 251 F. Supp. 3d 82, 88 (D.D.C. 2017).

This means that a party seeking judgment on the pleadings under Rule 12(c) must make

a different showing than a defendant who requests that the complaint be dismissed

under Rule 12(b)(6)—i.e., the Rule 12(c) movant must demonstrate that the law entitles

him to win given the undisputed facts that have been alleged in both parties’




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pleadings—and when considering a motion brought under Rule 12(c), the court must

make a different finding than the mere determination that the plaintiff’s complaint is too

deficient to proceed.

       The D.C. Circuit puts it this way: to support a Rule 12(c) motion, “the moving

party [must] demonstrate[] that no material fact is in dispute and that it is entitled to

judgment as a matter of law.” Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d

1365, 1370 (D.C. Cir. 2008); Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C.

Cir. 1987), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006); see

also Lopez v. Nat’l Archives & Records Admin., 301 F. Supp. 3d 78, 84 (D.D.C. 2018)

(noting that the 12(c) standard set out by the D.C. Circuit “comes closer to a summary

judgment type of determination”). Cases in this district routinely recognize the subtle

yet significant distinction between Rule 12(b)(6) and Rule 12(c) motions. See, e.g.,

Tapp, 306 F. Supp. at 383; Kambala, 280 F. Supp. at 137; All Assets Held at Bank

Julius, 251 F. Supp. 3d at 88; Lopez, 301 F. Supp. 3d at 84. And they implicitly

acknowledge that the Rule 12(c) burden is substantial: if the Rule 12(c) movant cannot

show both that there is no material dispute of fact (as reflected in the parties’ pleadings)

and that the law is such that the movant is entitled to judgment as a matter of law, then

the motion for judgment on the pleadings must be denied. See Tapp, 306 F. Supp. at

391 (“To prevail on a Rule 12(c) motion, the moving party must show that no material

issue of fact remains to be solved and that it is entitled to judgment as a matter of law.”

(quoting Judicial Watch, Inc. v. U.S. Dep’t of Energy, 888 F. Supp. 2d 189, 191 (D.D.C.

2012)) (internal quotation marks and alteration omitted)).




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       Here, the Air Force’s pending Rule 12(b)(6) motion to dismiss does not address

the existence or absence of disputed material facts, nor does it attempt to evaluate the

merits of the complaint’s claims in light of existing law. (See, e.g., Mot. to Dismiss,

ECF No. 17, at 5–13 (arguing solely that the complaint fails to state a claim for various

violations under the Privacy Act).) Therefore, this Court cannot accede to the Air

Force’s request that its Rule 12(b)(6) motion to dismiss be converted to a Rule 12(c)

motion for judgment on the pleadings. Instead, the Air Force must reassess its position

and decide whether it wishes to file a Rule 12(c) motion that properly conforms to the

applicable legal requirements, or otherwise move forward to discovery.


II.    ORDER

       For the reasons stated above, it is hereby

       ORDERED that Defendant’s request that this Court treat its Rule 12(b)(6)

motion to dismiss as a Rule 12(c) motion (see ECF No. 18) is DENIED, and it is

       FURTHER ORDERED that Defendant’s motion to dismiss (ECF No. 17) is

STRICKEN. If Defendant wishes to, it may file, on or before August 8, 2018, a

revised answer that demonstrates the absence of any material dispute of fact

(presumably by accepting the material allegations of fact in the complaint as true), and

a Rule 12(c) motion that asks the Court to render judgment in its favor as a matter of

law in light of the absence of disputed material facts. In the alternative, the parties are

instructed to file, on or before August 8, 2018, a joint status report proposing three

dates for an Initial Scheduling Conference.

Date: July 18, 2018                                 Ketanji Brown Jackson
                                                    KETANJI BROWN JACKSON
                                                    United States District Judge


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